Owens v. Racine County Jail

Filing 5

ORDER signed by Judge J.P. Stadtmueller on 2/16/2017. Pursuant to 28 U.S.C. § 1915(b)(4), plaintiff not required to pay initial partial filing fee. Plaintiff to notify the Court by 3/9/2017 if he wishes to voluntarily dismiss to avoid incurring strike; upon expiration of that time the Court will review the complaint. (cc: all counsel, via mail to Nathaniel Gerrod Owens and Sheriff at Racine County Jail)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NATHANIEL GERROD OWENS,
Plaintiff,
v.

Case No. 17-CV-195-JPS

RACINE COUNTY JAIL,
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.
Plaintiff filed a certified copy of his prisoner trust account statement
for the six-month period immediately preceding the filing of the complaint
as required under 28 U.S.C. § 1915(a)(2). (Docket #5). A review of this
information reveals that, for the six-month period immediately preceding the
filing of the instant complaint, the average monthly deposit in Plaintiff’s
prison account was zero and the average monthly balance to the account was
zero. Thus, Plaintiff has neither the assets nor means to pay the initial partial
filing fee.
However, 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, 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 id. § 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 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, Plaintiff will be afforded an opportunity to
voluntarily dismiss this action to avoid incurring a “strike” under Section

Page 2 of 3

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 March 9, 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, pursuant to 28 U.S.C. § 1915(b)(4), the plaintiff
will not be required to pay an initial partial filing fee. If the plaintiff fails to
file a notice of dismissal by March 9, 2017, the court will review the
complaint to determine whether the action is frivolous or malicious and
whether 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 a copy of this order be sent to the
warden of the institution where the inmate is confined.
Dated at Milwaukee, Wisconsin this 16th day of February, 2017.
BY THE COURT

J.P. Stadtmueller
United States District Judge

Page 3 of 3