Scott v. Wisconsin Secure Program Facility et al
Filing
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ORDER signed by Judge Lynn Adelman on 9/11/13 that plaintiff will not be required to pay an initial partial filing fee. Further ordering that, if he wishes to voluntarily dismiss this action to avoid the possibility of incurring a strike, plaintiff shall do so within 21 days of the date of this order. (cc: all counsel, DOJ, via USPS to plaintiff)(dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL SCOTT,
Plaintiff,
v.
Case No. 13-CV-01010
WISCONSIN SECURE PROGRAM FACILITY,
et al.,
Defendants.
ORDER
Pro se plaintiff Michael Scott 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
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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).
As is required, the present plaintiff filed a certified copy of his prisoner trust account
statement for the six-month period preceding the filing of this action. A review of this
statement reveals that, for the relevant six-month period, the average monthly deposit into
plaintiff’s prison account was zero and the average monthly balance was zero. Thus, the
plaintiff has neither assets nor means to pay any initial partial filing fee. A prisoner will not
be prohibited from bringing a civil action for the reason that he lacks the assets and means
to pay an initial partial filing fee. 28 U.S.C. § 1915(b)(4). Therefore, the plaintiff will be
granted a waiver of payment of the initial partial filing fee in this case. However, he is still
obligated to pay the full filing fee pursuant to the statutory formula set forth in 28 U.S.C. §
1915(b)(2). See 28 U.S.C. § 1915(b)(1).
The PLRA also provides that if a prisoner files more than three actions or appeals
which are dismissed as frivolous or 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 afforded an opportunity to voluntarily dismiss this action to
avoid incurring a "strike" under section 1915(g).
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
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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 I
receive such notification, this case will be dismissed without prejudice, without your
incurring a “strike” under § 1915(g).
THEREFORE, IT IS ORDERED that, pursuant to 28 U.S.C. § 1915(b)(4), plaintiff
will not be required to pay an initial partial filing fee.
IT IS FURTHER ORDERED that, if he wishes to voluntarily dismiss this action to
avoid the possibility of incurring a strike under 28 U.S.C. § 1915(g), plaintiff shall so notify
the court within 21 days of the date of this order. After the expiration of 21 days, the court
will review plaintiff’s legal claim(s) to determine whether the action may proceed in forma
pauperis.
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 11th day of September, 2013.
s/ Lynn Adelman
LYNN ADELMAN
District Judge
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