Lindsey v. Johnston et al
ORDER that within 21 days of the date of this order, plaintiff shall forward to the Clerk of Court the sum of $ $0.77 as an initial partial filing fee in this action. Signed by Judge Lynn Adelman on 03/09/2018. (cc: all counsel, Plaintiff, Warden)(lls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 18-C-0323
C.O. JOHNSTON et al.,
Plaintiff seeks relief under 42 U.S.C. § 1983 and has requested leave to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915. 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
Pursuant to the Prison Litigation Reform Act (“PLRA”), a prisoner is required to
pay the statutory filing fee of $350.00 for any civil action, even when in forma pauperis
status is granted. See 28 U.S.C. § 1915(b)(1); Newlin v. Helman, 123 F.3d 429, 432
(7th Cir. 1997), overruled on other grounds by Lee v. Clinton, 209 F.3d 1025 (7th Cir.
2000). However, a plaintiff prisoner is allowed to pay the filing fee in increments
according to the formula set forth in § 1915(b)(1). Under this provision, the court will
assess an initial partial filing fee of twenty percent of the greater of: (1) the average
monthly deposits into the plaintiff’s prison account; or (2) the average monthly balance
in the plaintiff’s prison account, each for the six-month period immediately preceding the
filing of the complaint. After the initial fee is paid, the agency having custody of the
plaintiff captures twenty percent of the income deposited into the plaintiff’s trust account
each month. Once the accumulated twenty percent deductions exceed $10.00, prison
officials shall forward the accumulated deductions to the Clerk of Court toward the
plaintiff’s filing fee. Williams v. Litscher, 115 F. Supp. 2d 989, 991 (W.D. Wis. 2000).
The clerk’s office has received a certified copy of plaintiff’s prison trust account
statement for the past six months. A review of this statement reveals that the average
monthly deposit into plaintiff’s prison account was $3.87 and the average monthly
balance was zero. Thus, in accordance with § 1915(b)(1), plaintiff is required to pay an
initial partial filing fee of $0.77 (twenty percent of $3.87).
Plaintiff shall pay this initial partial filing fee of $0.77 to the clerk of this court
within 21 days of the date of this order. Failure to pay the initial partial filing fee within
the time specified will result in dismissal of this action, pursuant to Fed. R. Civ. P. 41(b)
and Civil L.R. 41(c) (E.D. Wis. 2010).
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
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 within 21
days of the date of this order 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).
THEREFORE, IT IS ORDERED that within 21 days of the date of this order, the
plaintiff shall forward to the Clerk of Court the sum of $0.77 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.
IT IS ALSO 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 9th day of March, 2018.
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