SMALL v. DRYER et al

Filing 2

MEMORANDUM AND ORDER THAT THE PETITION IS DENIED WITHOUT PREJUDICE TO IS REASSERTION IN ACCORDANCE WITH TERMS OF THIS ORDER; IF PLAINTIFF FILES WITH THE COURT WITHIN TWENTY (20) DAYS A NOTICE THAT HE WISHES TO PROCEED WITH THIS CIVIL ACTION AND OBLIGATE HIMSELF TO PAY THE $350.00 FILNG FEE THIS ACTION WILL BE REINSTATED AND THE CLERK OF COURT SHALL CLOSE THIS CASE STATISTICALLY.SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 9/25/12. 9/25/12 ENTERED AND COPIES MAILED TO PRO SE PETITIONER. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION

JEROME A. SMALL
v.

.

THOMAS A. DRYER, et a1.

NO. 12-5376

ME M0 R A N D U M A N D

0 R D E R

Plaintiff, a prisoner at SCI Huntingdon, seeks to bring
a civil action in forma pauperis, 1 without prepayment of fees or
security therefor, asserting claims pursuant to 42 U.S.C.

1983.

§

The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134,
110 Stat. 1321 (April 26, 1996)

u.s.c.

§

(the "Act"), which amends 28

1915, establishes certain financial requirements for

prisoners who are attempting to bring a civil action or file an
appeal in forma pauperis.
Under the Act, a prisoner bringing a civil action in
forma pauperis must pay the full amount of the $350 filing fee.
28. U.S.C.

§

1915(b) (1).

The prisoner must submit a certified

copy of his inmate trust fund account statement for the 6-month
period immediately preceding the filing of his complaint so the
Court can determine how the $350 filing fee will be paid.

u.s.c.

§

1915(a) (2).

28

The prisoner must obtain this statement

from the appropriate official of each prison at which he was or
is confined.

Id.

The Court must then "assess [the prisoner's

financial status] and, when funds exist, collect, as a partial
payment of any court fees required by law, an initial partial

1

1915.

Suits brought in forma pauperis are governed by 28 U.S.C.

§

filing fee of 20 percent of the greater of--

(A) the average

monthly deposits to the prisoner's account; or (B) the average
monthly balance in the prisoner's account for the 6-month period
immediately preceding the filing of the complaint .

.

.

"

Based upon plaintiff's financial information, an
initial partial filing fee of $6.50 is assessed.

The

Superintendent or other appropriate official at SCI Huntingdon,
or at any prison at which plaintiff may be confined, will be
directed to deduct $6.50 from plaintiff's inmate account, when
such funds become available, and forward that amount to the Clerk
of the United States District Court for the Eastern District of
Pennsylvania.

Thereafter, each time that the balance in

plaintiff's inmate account exceeds $10, an amount no greater than
20 percent of the money credited to plaintiff's account during
the preceding month will be deducted and forwarded to the Clerk
of Court until the filing fee is paid.

Plaintiff may not have

known when he brought this action that he must pay the filing
fee, and that even if the full filing fee, or any part of it, has
been paid, the Court must dismiss the case if it finds that the
action is:

{1) frivolous or malicious;

(2) fails to state a claim

upon which relief may be granted; or (3) seeks monetary relief
against a defendant who is immune from such relief.
1915(e) {2) {B).

28

u.s.c.

§

If the Court dismisses the case for any of these

reasons, the Act does not permit the prisoner to get his filing
fee back.
We shall give plaintiff twenty {20) days from the date

of thi9 order to decide whether he wants to proceed with this

case.

If by that time, plaintiff decides not to proceed with the

case, he need not pay the $350 filing fee.

~

2

,~_...

For the foregoing reasons, it is, this

~~

day

of September, 2012, hereby ORDERED that:
1.

The petition is DENIED WITHOUT PREJUDICE to its

reassertion in accordance with the terms of this order;
2.

If plaintiff files with the Court within twenty

(20) days from the date of this order a notice that he wishes to
proceed with this action and thereby obligate himself to pay the
$350 filing fee, this action will be reinstated; and
3.

The Clerk of Court shall CLOSE this case

statistically.
BY THE COURT:

~o(.'aio~

2

In deciding whether to proceed with this civil action,
plaintiff should note that a defense attorney, whether courtappointed or privately retained, represents only his client, and
not the state, and cannot be sued under § 1983.
Polk County v.
Dodson, 454 U.S. 312 (1981).