Simpson v. Litscher et al

Filing 12

ORDER signed by Judge J.P. Stadtmueller on 3/24/2017. Pursuant to 28 U.S.C. § 1915(b)(4), plaintiff is not required to pay initial partial filing fee. Plaintiff to notify the Court in writing by 4/14/2017 if he wishes to voluntarily dismiss action to avoid incurring potential strike; upon expiration of that time, the Court will review the complaint. (cc: all counsel, via mail to Willie C. Simpson and Warden at Green Bay Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIE C. SIMPSON,
Plaintiff,
v.
JON E. LITSCHER, SCOTT
ECKSTEIN, JOHN KIND, CAPTAIN
SCHULTZ, LT. ELSINGER, LT.
VAHLAHAN, SGT. KOELLER, SGT.
MENNING, SGT.
ROZMARYNOSKI, SGT. HERT, C.O.
BRUNNER, C.O. GRABOWSKI, C.O.
BEBO, C.O. BONNIN, C.O. II
MEYER, C.O. DELFOSSE, C.O.
WEYCKER, C.O. TREML, C.O.
DIEDRICK, C.O. PEOTTER, C.O.
POTTS, C.O. VANDEVELDEN, C.O.
SCHEMECK, C.O. NEMETZ, C.O.
REYES, C.O. GUERRERO, C.O.
LEWIS, C.O. YANG, C.O.
HEFFERNAN, C.O.
ROBEHHAGEN, J. PERTTU, C.O.
PETER BAUGH, C.O. AVERY, C.O.
BRUSO, C.O. TURCK, and JOHN
DOES,

Case No. 17-CV-359-JPS

ORDER

Defendants.
Plaintiff, a prisoner proceeding pro se, filed a complaint in the abovecaptioned action. Plaintiff has also filed a motion for leave to proceed in forma
pauperis. (Docket #3). 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, 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. Id. § 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 #11). 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 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).

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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
1915(g).
Notice to Plaintiff: If you do not wish to proceed with this action to
avoid incurring a “strike” under Section 1915(g), you must notify the Court
by filing a letter with the Clerk of Court on or before April 14, 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 Section 1915(g).
Accordingly,
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. If Plaintiff fails to file a
notice of dismissal by April 14, 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.

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Dated at Milwaukee, Wisconsin, this 24th day of March, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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