May v. State of Wisconsin et al

Filing 9

ORDER signed by Judge Lynn Adelman on 4/26/13 that within 21 days of the date of this order, plaintiff must send the Clerk of this Court $5.67 as an initial partial filing fee in this action. See order for details. (cc: all counsel, via USPS to plaintiff)(dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

EDITH MAE MAY,
Plaintiff,
v.

Case No. 13-CV-00362

STATE OF WISCONSIN, 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 six-month 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.
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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 $28.37 and the average monthly balance
was $12.48. Thus, in accordance with § 1915(b)(1), plaintiff is required to pay an initial
partial filing fee of $5.67 (twenty percent of $28.37).
Plaintiff shall pay this initial partial filing fee of $5.67 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
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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).
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 $5.67 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.”
IT IS ALSO ORDERED that copies of this order be sent to the Wisconsin
Department of Justice pursuant to the memorandum of understanding entered into
between the clerk’s office and the Department.
Dated at Milwaukee, Wisconsin this 26th day of April 2013.

s/ Lynn Adelman
LYNN ADELMAN
District Judge

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