Strong v. Outagamie County Sheriff's Department et al

Filing 5

ORDER signed by Judge Pamela Pepper on 2/20/2018. Plaintiff not required to pay initial partial filing fee. If plaintiff wishes to voluntarily dismiss case, he must notify the clerk of court by 3/14/2018. Once that deadline expires, the court will r eview the case to determine whether plaintiff can proceed in forma pauperis and whether case is frivolous, malicious, or fails to state a claim upon which relief can be granted. (cc: all counsel, via mail to Dennis Strong at Outagamie County Jail; Outagamie County Sheriff)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DENNIS STRONG,
Plaintiff,
v.

Case No. 18-cv-237-pp

OUTAGAMIE COUNTY
SHERIFF'S DEPARTMENT, et al.,
Defendant.
______________________________________________________________________________
DECISION AND ORDER ALLOWING THE PLAINTIFF
TO PROCEED WITHOUT PAYMENT OF A PARTIAL FILING FEE
______________________________________________________________________________
The plaintiff is a prisoner, and represents himself. He filed the complaint
in this case. Federal law requires that any party filing a complaint must pay a
filing fee of $350. 28 U.S.C. §1914(a). It also requires a party filing a complaint
to pay a $50 administrative fee. Judicial Conference of the United States
District Court Miscellaneous Fee Schedule Effective May 1, 2013, #14.
The plaintiff has filed a petition asking the court for leave to proceed in
forma pauperis—he has alleged that he is unable to pay the above filing fee.
The law does not allow the court to waive the filing fee in full for a prisoner.
Rather, it says that if the court determines that the prisoner qualifies for in
forma pauperis status, (a) the $50.00 administrative fee is waived, and (b) the
court may allow the prisoner to pay the $350.00 by paying an initial partial
filing fee, followed by monthly installments, until the $350.00 has been paid in
full. The law requires the court to calculate the initial filing fee and the
installments based on 20% of either the average monthly deposits into the
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prisoner’s account or the average monthly balance in the prisoner’s account for
the six months preceding the date the complaint was filed, whichever is
greater. 28 U.S.C. §1915(b).
In this case, the plaintiff has filed a certified copy of his prisoner trust
account statement for the six-month period immediately preceding the filing of
the complaint, as required by 28 U.S.C. §1915(a)(2). That statement shows that
for that six-month period, both the average monthly deposit in the account and
the average monthly balance in the account were zero. The plaintiff has neither
the assets nor the means to pay an initial partial filing fee.
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). The 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 under the statutory formula set forth in 28 U.S.C. §1915(b)(2). See 28
U.S.C. §1915(b)(1).
The Prison Litigation Reform Act provides that if a prisoner files more
than three actions which the court later dismisses as frivolous or malicious, or
for failure to state a complaint upon which relief can be granted, the law
prohibits the prisoner 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). Thus, if the court ends up dismissing this lawsuit for any of
those reasons, that dismissal will have an impact on the plaintiff’s ability to
proceed in forma pauperis in other lawsuits. For this reason, the plaintiff may
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wish to voluntarily dismiss the lawsuit, to avoid the risk of the court dismissing
the lawsuit.
If the plaintiff does not want to pay the $350 filing fee in installments as
the court described above, or if the plaintiff wants to voluntarily dismiss the
lawsuit to avoid having the court dismiss it later as frivolous or malicious or
failing to state a claim, the plaintiff must, on or before the date specified at
the end of this order, file a letter with the Clerk of Court, stating that the
plaintiff does not wish to prosecute the lawsuit. If the plaintiff writes such a
letter by the deadline specified at the end of the order, the court will dismiss
the case without prejudice (and that dismissal will not count against the
plaintiff in future requests to proceed in forma pauperis).
The court will send a copy of this order to Outagamie County Jail, where
the plaintiff is confined.
The court ORDERS that the plaintiff will not be required to pay an initial
partial filing fee. The court further ORDERS that if the plaintiff does not wish
to continue with this lawsuit, then on or before March 14, 2018, the plaintiff
must write a letter to the clerk of court asking to voluntarily dismiss the case.
Once the time to receive the letter has expired, the court will review the
complaint to determine whether to grant the plaintiff leave to continue in forma
pauperis. The court also will review the complaint to determine whether the
lawsuit is frivolous or malicious or fails to state a claim upon which relief can
be granted; if the court concludes that the complaint does not meet this
standard, the court will dismiss the complaint.
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Dated in Milwaukee, Wisconsin this 20th day of February, 2018.
BY THE COURT:

HON. PAMELA PEPPER
United States District Judge

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