Harris v. Superintendent Milwaukee County Correctional Facility-South et al
Filing
5
ORDER signed by Judge Lynn Adelman on 9/17l/11 that within 21 days of the date of this order, plaintiff shall forward to the Clerk of this Court the sum of $52.12 as an initial partial filing fee in this action. (cc: all counsel, via USPS to plaintiff)(dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ORBIN B. HARRIS,
Plaintiff,
v.
Case No. 11-CV-00872
SUPERINTENDENT MILWAUKEE
COUNTY CORRECTIONAL FACILITYSOUTH, et al.,
Defendants.
ORDER
Plaintiff seeks relief under 42 U.S.C. § 1983 and has requested leave to proceed in
forma pauperis, pursuant to 28 U.S.C. § 1915.
According to the April 26, 1996 amendments to § 1915, plaintiff prisoners must still pay
the entire statutory filing fee of $350, regardless of whether in forma pauperis status is
ultimately granted. 28 U.S.C. § 1915(b)(1); Newlin v. Helman, 123 F.3d 429, 432 (7th Cir.
1997), overruled on other grounds by Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000). However,
a plaintiff prisoner is allowed to pay the filing fee in increments according to the formula set
forth in § 1915(b)(1). Under this provision, the court will assess an initial partial filing fee of
twenty percent of the greater of: (1) the average monthly deposits into the plaintiff’s prison
account; or (2) the average monthly balance in the plaintiff’s prison account, each for the sixmonth period immediately preceding the filing of the complaint. After the initial fee is paid,
the agency having custody of the plaintiff captures twenty percent of the income deposited
to the plaintiff’s prison trust account each month. Once the accumulated twenty percent
deductions exceed $10.00, prison officials shall forward the accumulated deductions to the
Clerk of the Court towards the plaintiff’s filing fee. Williams v. Litscher, 115 F. Supp. 2d 989,
991 (W.D. Wis. 2000).
The clerk’s office has received a certified copy of plaintiff’s prisoner trust account
statement for the past six months. A review of this statement reveals that the average
monthly deposit into plaintiff’s prison account was $7.00 and the average monthly balance
was $260.60. Thus, in accordance with § 1915(b)(1), plaintiff is required to pay an initial
partial filing fee of $52.12 (twenty percent of $260.60).
Plaintiff shall pay this initial partial filing fee of $52.12 to the clerk of this court within
21 days of the date of this order. Failure to pay the initial partial filing fee within the time
specified will result in dismissal of this action, pursuant to Fed. R. Civ. P. 41(b) and Civil L.R.
41(c) (E.D. Wis. 2010).
Notice to Plaintiff: Please be aware that 28 U.S.C. § 1915(g) creates a “three strikes”
rule. This means that if a prisoner files three actions or appeals which are dismissed as
frivolous or malicious or for failure to state a claim upon which relief can be granted, that
prisoner may not bring any other actions in forma pauperis, unless he or she is in imminent
danger of serious physical injury. § 1915(g).
If you believe you may incur a “strike” under § 1915(g) when the merits of your claim(s)
are assessed at a later stage of this litigation, and you want to avoid that possibility, you may
notify the Clerk of Court in writing within twenty-one days of the date of this order, stating that
you do not wish to continue prosecuting this civil action. If we receive such notification, this
case will be dismissed without prejudice, without your incurring a “strike” under § 1915(g), and
without your paying the filing fee as set forth in this order.
If, however, you simply do not pay the initial partial filing fee within the period set forth
in this order, this case may be dismissed with prejudice, and you will still be required to pay
the entire $350 filing fee. A dismissal for failure to pay the initial partial filing fee, however,
is never counted as a “strike” under § 1915(g).
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NOW, THEREFORE, IT IS HEREBY ORDERED that within 21 days of the date of this
order, plaintiff shall forward to the Clerk of this Court the sum of $52.12 as an initial partial
filing fee in this action.
After the initial partial filing fee is paid, the court will then review plaintiff’s legal claim(s)
to determine whether the action may proceed in forma pauperis. Claims that are frivolous or
malicious, fail to state a claim upon which relief may be granted, or seek monetary relief
against defendants with immunity will be dismissed at this stage. § 1915(e)(2)(B). Please
note that if any one claim survives this review, plaintiff will not incur a § 1915(g) “strike.”
Dated at Milwaukee, Wisconsin this 17th day of September 2011.
s/
LYNN ADELMAN
District Judge
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