Caldwell v. Bartow

Filing 51

ORDER signed by Judge Rudolph T. Randa on 5/16/2016 DENYING 15 Caldwell's Motion for Leave to Proceed Without Prepayment of Filing Fee. Caldwell to pay $5 filing fee by 6/20/2016; failure to do so will result in dismissal of action. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
IVEN LEE CALDWELL,
Petitioner,
-vs-

Case No. 15-C-293

BYRAN BARTOW,
Director, Wisconsin Resource Center,
Respondent.

ORDER
Petitioner Iven Lee Caldwell, who is serving a life sentence at
Wisconsin Resource Center, seeks leave to proceed without prepayment of
fees and/or costs (ECF No. 15) on his amended petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (ECF No. 50). Caldwell is challenging
his April 4, 2011, Milwaukee County Circuit Court conviction in Wisconsin
v. Caldwell, Case No. 06-CF-4987 following the entry of a nolo contendere
plea to a charge of first-degree intentional homicide.
To authorize a litigant to proceed without prepayment of fees and/or
costs, the Court must make two determinations: first, whether the litigant
is unable to pay the costs of commencing the action; and second, whether
the action is frivolous or malicious. 28 U.S.C. §§ 1915(a)(1) and (e)(2). The
Court must deny a request to proceed without prepaying the fee if (1) the

allegation of poverty is untrue; (2) the action is frivolous; (3) the action fails
to state a claim; or (4) the action seeks monetary relief against an immune
defendant. 28 U.S.C. § 1915(e)(2).
With respect to Caldwell’s ability to pay the $5.00 filing fee, his
certified trust account statement discloses that his average monthly
balance was $803.17 and his average monthly deposits were $71.34, which
include regular payroll deposits. Thus, Caldwell is able to pay the fee for
filing this action, and his petition to proceed without prepayment of fees
and/or costs is denied.

If Caldwell wants to proceed with his § 2254

petition he must pay the $5.00 fee by the stated deadline. Failure to pay
the filing fee by the stated deadline will result in dismissal of this action
and denial of a certificate of appealability without further order of the
Court.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
Caldwell’s petition to proceed without prepayment of fees and/or
costs (ECF No. 15) is DENIED;
Caldwell must pay the $5.00 filing fee no later than June 20,
2016; and,
Failure to pay the filing fee by the stated deadline will result in the
-2-

dismissal of this action and the denial of a certificate of appealability
without further order of the Court.
Dated at Milwaukee, Wisconsin, this 16th day of May, 2016.
BY THE COURT:

HON. RUDOLPH T. RANDA
U.S. District Judge

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