Williams v. Stauche et al

Filing 8

ORDER signed by Judge Rudolph T. Randa on 9/17/2014. Plaintiff not required to pay initial partial filing fee. Plaintiff to notify the Court by 10/7/2014 if he wishes to voluntarily dismiss action. Upon expiration of that time, the Court will determine if action can proceed in forma pauperis. (cc: all counsel, via US mail to Warden and Travis Williams at Dodge Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TRAVIS DELANY WILLIAMS,
Plaintiff,
-vs-

Case No. 14-C-1078

DAVE STAUCHIE, et al,
Defendant.
ORDER
The plaintiff, a prisoner proceeding pro se, filed a complaint in the
above captioned action. The plaintiff has also filed a petition for leave to
proceed in forma pauperis. The total cost of filing a civil action is $400.00,
which includes the $350.00 statutory filing fee and a $50.00 administrative
fee.

However, the $50.00 administrative fee does not apply to persons

granted in forma pauperis status.

Pursuant to the Prison Litigation

Reform Act (PLRA), a prisoner plaintiff proceeding in forma pauperis is
required to pay the statutory filing fee of $350.00 for any civil 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 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 6-month period immediately preceding the filing of the
complaint as required under 28 U.S.C. § 1915(a)(2).

A review of this

information reveals that, for the 6-month period immediately preceding the
filing of the complaint, the average monthly deposit in the plaintiff's prison
account was zero and the average monthly balance to the account was zero.
Thus, the plaintiff has neither assets nor means to pay the 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
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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, 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 this 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: 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 October 7, 2014, 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, pursuant
to 28 U.S.C. § 1915(b)(4), the plaintiff will not be required to pay an initial
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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), the plaintiff shall so notify the court on or before October
7, 2014.
Upon expiration of the specified time, the court will determine
whether the action can continue 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.
IT IS FURTHER ORDERED that a copy of this order be sent to
the warden of Dodge Correctional Institution.
Dated at Milwaukee, Wisconsin, this 17th day of September, 2014.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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