Bergeron-Davila v. Schmaling et al

Filing 14

ORDER signed by Judge J.P. Stadtmueller on 1/27/2017 that on or before 2/17/2017 plaintiff shall forward to the Clerk of Court the sum of $1.08 as an initial partial filing fee in this action. (cc: all counsel, via mail to Raymond J. Bergeron-Davila and Warden at Wisconsin Resource Center)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RAYMOND J. BERGERONDAVILA,
Plaintiff,

Case No. 16-CV-1665-JPS

v.
CHRISTOPHER SCHMALING,
DOUGLAS WEARING, LT.
BRADLEY FRIEND, C.O. ZIMMER,
and JOHN DOES,

ORDER

Defendants.

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 two-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 two-month period immediately preceding
the filing of the instant complaint, the average monthly deposit in the
plaintiff's prison account was $5.40 and the average monthly balance to the
account was $0.00. Thus, in accordance with the provisions of 28 U.S.C. §
1915(b)(1), the plaintiff is required to pay an initial partial filing fee of $1.08.
The plaintiff shall pay the initial partial filing fee of $1.08 to the Clerk of
Court on or before February 17, 2017. Failure to pay the initial partial filing
fee within the specified time period may result in dismissal of the action with
prejudice pursuant to Civil Local Rule 41(c) (E.D. Wis.) and Fed. R. Civ. P.
41(b).
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 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. This analysis
of the complaint is not undertaken by the court until after the initial partial
filing fee is paid. Accordingly, the plaintiff will be afforded an opportunity

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to voluntarily dismiss this action to avoid incurring a “strike” under §
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 February 17, 2017, 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).
Accordingly,
IT IS ORDERED that on or before February 17, 2017, the plaintiff
shall forward to the Clerk of Court the sum of $1.08 as an initial partial filing
fee in this action.
Upon payment of the initial partial filing fee, the court will determine
whether the action can continue to proceed 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; and
IT IS FURTHER ORDERED that copies of this order be sent to the
warden of the institution where the inmate is confined.

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Dated at Milwaukee, Wisconsin this 27th day of January, 2017.
BY THE COURT

J.P. Stadtmueller
United States District Judge

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