DeJesus v. Giese et al

Filing 6

DISREGARD; FILED IN WRONG CASE ORDER signed by Judge J P Stadtmueller on 1/15/10 that on or before 2/5/10 plaintiff shall forward to the Clerk of Court the sum of $4.55 as an initial partial filing fee in this action; if plaintiff does n ot wish to pay the filing fee or does not wish to proceed with this action to avoid incurring a strike, plaintiff must notify the court by filing a letter with the Clerk of Court on or before 2/5/10 stating that he does not wish to prosecute this action. See Order. (cc: plaintiff, Warden of the Dodge Correctional Institution, AAG Corey F. Finkelmeyer, all counsel)(nm) Modified on 1/15/2010 (kah).

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ ROY R. KING, JR., Plaintiff, v. THERESA A. LUSTER and BRENT W. RICHTER, Defendants. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ Case No. 09-CV-508

ORDER
The plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint under 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis. Pursuant to the Prison Litigation Reform Act (PLRA), the plaintiff is required to pay the full amount of the statutory filing fee, $350.00, for this action. See 28 U.S.C. § 1915(b)(1). Under the PLRA, which amended the in forma pauperis statute, the court must assess an initial partial filing fee of twenty percent of the average monthly deposits to the plaintiff's prisoner trust account or average monthly balance in the plaintiff's prison account for the six-month period immediately preceding the filing of the complaint, whichever is greater. Id. After the initial fee is paid, the prisoner must make monthly payments of twenty percent of the preceding month's income until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). "The agency having

custody of the prisoner shall forward payments from the prisoner's account to the Clerk of the Court each time the amount in the account exceeds $10 until the filing fees are paid." Id. The plaintiff filed a certified copy of his prisoner trust account statement for the six-month period immediately preceding the filing of the complaint as required under 28 U.S.C. § 1915(a)(2). This account statement shows the activity in the plaintiff's prison account for the past six months. A review of this information reveals that, for the six-month period immediately preceding the filing of the instant complaint, the average monthly deposit to the plaintiff's prison account was $22.75 and the average monthly balance of the account was $4.07. Thus, in accordance with the provisions of 28 U.S.C.

§ 1915(b)(1), the plaintiff is required to pay an initial partial filing fee of $4.55. The plaintiff shall pay the initial partial filing fee of $4.55 to the Clerk of Court on or before February 5, 2010. The PLRA also provides that if a prisoner files more than three actions or appeals which are dismissed as frivolous, malicious, or for failure to state a claim upon which relief can be granted, the prisoner will be prohibited from bringing any other actions in forma pauperis, unless the prisoner is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g). In the event that his action is later dismissed for any of the above reasons, it will have an impact on the prisoner's ability to bring other actions in forma pauperis. Accordingly, the plaintiff will be
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afforded an opportunity to voluntarily dismiss this action to avoid incurring a "strike" under § 1915(g). Notice to Plaintiff: If you do not wish to pay the filing fee as set forth in this Order or do not wish to proceed with this action to avoid incurring a "strike" under §1915(g), you must notify the court by filing a letter with the Clerk of Court on or before February 5, 2010, stating that you do not wish to prosecute this civil action. If you write such a letter, this case will be dismissed without prejudice. Voluntary dismissal will not be counted as a "strike" under §1915(g). Now, therefore, IT IS HEREBY ORDERED that on or before February 5, 2010, the plaintiff shall forward to the Clerk of Court the sum of $4.55 as an initial partial filing fee in this action. Upon payment of the initial partial filing fee, the court will determine whether the action can continue to proceed in forma pauperis. The court will review the complaint to determine that the action is not frivolous or malicious and that the complaint states a claim upon which relief can be granted. If the complaint does not meet this standard, the action will be dismissed.

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IT IS FURTHER ORDERED that copies of this order be sent to the warden of the Dodge Correctional Institution and to Corey F. Finkelmeyer, Assistant Attorney General, Wisconsin Department of Justice, P.O. Box 7857, Madison, W isconsin, 53707-7857.
D a te d at Milwaukee, W is c o n s in , this 15th day of January, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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