Covington v. Bowens et al
ORDER signed by Judge J.P. Stadtmueller on 3/9/2018. The Court's 3/7/2018 Order and Judgment (Docket #6 and #7) VACATED. 8 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee DENIED without prejudice. By 3/23/ 2018, Plaintiff to FILE an amended motion for leave to proceed in forma pauperis and his prison trust account statement; failure to do so will result in dismissal of this action without further notice. See Order. (Attachments: # 1 Form Prisoner Request to Proceed in District Court without Prepaying the Filing Fee) (cc: all counsel, via mail to Reo Covington at Oshkosh Correctional Institution) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 18-CV-187-JPS
NANCY BOWENS, DR. P. MURPHY,
and NURSE MELANIE,
Plaintiff, a prisoner proceeding pro se, filed a complaint under 42
U.S.C. § 1983, alleging that his civil rights were violated. (Docket #1). He
did not pay the $400.00 filing fee or include with his complaint a motion
for leave to proceed in forma pauperis. As a result, on February 2, 2018, the
Clerk of the Court sent Plaintiff a letter requesting that he either pay the
full filing fee or file a motion for leave to proceed in forma pauperis within
twenty-one days. (Docket #2). It appears that the letter was sent to
Columbia Correctional Institution (“Columbia”), although Plaintiff has
during the pendency of this action always been incarcerated at Oshkosh
Correctional Institution (“Oshkosh”). See id.
The deadline set by the Clerk of the Court expired on February 23,
2018, but Plaintiff had filed nothing by that date except a refusal to
consent to the jurisdiction of the assigned magistrate judge. See (Docket
#4). (It is unclear whether he did so because he had in fact received the
February 2 letter, which included an admonition regarding magistrate
judge consent jurisdiction in addition to the fee issues, or whether he did
of his own accord without receiving the letter.) On February 26, 2018, the
Court gave Plaintiff seven more days, or until March 5, 2018, to either pay
the filing fee in full or submit an application for leave to proceed in forma
pauperis, warning that if he did not do one of these two things, his case
would be dismissed for failure to prosecute. (Docket #5 at 1). The Court’s
docket reflects that the February 26 order was sent to Plaintiff at Oshkosh.
Plaintiff did not make a submission by the Court’s deadline of
March 5, and so the Court dismissed his case on March 7. (Docket #6, #7);
Civ. L. R. 41(c). A day later, Plaintiff filed a motion for leave to proceed in
forma pauperis. (Docket #8). In it, he describes his financial circumstances,
his prior lawsuits, and the fact that the Clerk of the Court’s February 2
letter was sent to the wrong institution—although he does not claim he
never received the letter, and he somehow obtained a copy of it despite it
being sent to Columbia. Id. at 1–2. Because of the uncertainty surrounding
whether Plaintiff actually received the February 2 letter, the Court finds it
prudent to vacate its dismissal and reopen this matter.
However, the fact remains that the Court’s February 26 order was
sent to Oshkosh, yet Plaintiff did not make a timely submission in
conformity with that order. Thus, Plaintiff has ignored at least one Court
Further, there are problems with Plaintiff’s motion for leave to
proceed in forma pauperis. First, it does not contain all of the information
about his assets, income, and expenses that the Court requires. Plaintiff’s
scattered comments about his indigence do not suffice. Second, as he
seems to concede in his motion, see id. at 2, Plaintiff has not submitted his
prison trust account statement for the six-month period immediately
preceding the filing of his complaint as required by 28 U.S.C. § 1915(a)(2).
Without this, the Court cannot assess an initial partial filing fee pursuant
to Section 1915(b)(1). He must secure a copy of that trust account
statement and file it with the Court.1
For these reasons, the Court will deny Plaintiff’s motion for leave to
proceed in forma pauperis without prejudice. He must file an amended
motion using the Court’s standard form for such motions, as well as his
six-month trust account statement, no later than March 23, 2018. If he does
not, the case will again be dismissed and will not be reopened. A copy of
the Court’s standard form for motions for leave to proceed in forma
pauperis is being sent to him along with this Order.
IT IS ORDERED that the Court’s order and judgment of March 7,
2018 (Docket #6, #7) be and the same are hereby VACATED;
IT IS FURTHER ORDERED that Plaintiff’s motion for leave to
proceed in forma pauperis (Docket #8) be and the same is hereby DENIED
without prejudice; and
IT IS FURTHER ORDERED that Plaintiff must file an amended
motion for leave to proceed in forma pauperis, using the Court’s standard
form, and his prison trust account statement for the six-month period
immediately preceding the filing of this lawsuit, as required by 28 U.S.C. §
Plaintiff suggests that he requested that officials at the U.S. District Court
for the Western District of Wisconsin send a copy of his trust account statement
to this Court because he is “unable to secure another copy.” (Docket #8 at 2).
Plaintiff should note that court officials are not required to act on his behalf, and
if they do not, it remains his duty to ensure that the trust account statement is
timely filed with this Court. An unexplained, uncorroborated inability to submit
the trust account statement is not enough to absolve him of this obligation.
1915(a)(2), no later than March 23, 2018. Failure to do so will result in
dismissal of this action without further notice. See Civ. L. R. 41(c).
Dated at Milwaukee, Wisconsin, this 9th day of March, 2018.
BY THE COURT:
U.S. District Judge
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