MARSHALL v. HOLM

Filing 3

Order on IFP request: Petitioner to submit Trust Fund Account Statement. Trust Fund Account Statement due by 8/8/2008. Signed by Judge Barbara B Crabb on 7/18/08. (elc),(ps)

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MARSHALL v. HOLM Doc. 3 Case: 3:08-cv-00398-bbc Document #: 3 Filed: 07/22/2008 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------M A R K D. MARSHALL, ORDER Petitioner, 0 8 - cv -3 9 8 - b b c v. W IL L IA M HOLM, R espo nd ent. --------------------------------------------M A R K D. MARSHALL, ORDER Petitioner, 0 8 - cv -4 1 1 - b b c v. T RA V IS BITTELMAN, B R I A N NEUMAIER and M IC H A EL FINK, R espo nd ents. --------------------------------------------Petition er Mark Marshall, a prisoner at the Waupun Correctional Institution in W aupun, Wisconsin, has submitted proposed complaints in these cases. He requests leave to proceed in forma pauperis. A decision on the requests will be delayed until petitioner 1 Dockets.Justia.com Case: 3:08-cv-00398-bbc Document #: 3 Filed: 07/22/2008 Page 2 of 4 p ays initial partial payments of the $350 filing fees as required by 28 U.S.C. 1915(b) and the 1996 Prison Litigation Reform Act. Petitioner's initial partial payments cannot be calculated at this time because he has not submitted trust fund account statements with his com plaints. Petition er believes that he will not owe a filing fee in either of these cases. On the last page of his request to proceed in forma pauperis in case no. 08-cv-398-bbc, petitioner says, "T here was an order priorly saying I do not owe filing fee when I refile!" He elaborates in the affidavit of indigency in case no. 08-cv-411-bbc saying, "This suit was priorly filed before the George v. Smith decision and it was decided that when plaintiff refiled this claim, I w o u ld not owe a filing fee." Petitioner appears to be referring to the November 26, 2007 opinion in Marshall v. Nickel, 06-cv-617-bbc. In that order, I informed petitioner of the d ecisio n by the Court of Appeals for the Seventh Circuit in George v. Smith, 507 F.3d 605 ( 7 t h Cir. 2007), requiring multiple claims against multiple defendants to be brought in separate lawsuits. I separated his claims into six individual lawsuits and gave him an op po rtunity to choose which lawsuits he intended to pursue. In addition, I told petitioner he would not owe the $350 filing fee for those lawsuits he chose to dismiss and he would be free to pursue those lawsuits at another time. Under ordinary circumstances, I would not have been free to excuse petitioner's p aym en t of a filing fee. However, the circumstances in case no. 06-cv-617-bbc were not 2 Case: 3:08-cv-00398-bbc Document #: 3 Filed: 07/22/2008 Page 3 of 4 ordinary. Petitioner filed that case before the court of appeal's ruling in George, and he could not have anticipated its far-reaching effects. Although I told petitioner in the N o vem b er 26 order that he could withdraw any or all of the newly severed actions and not ow e a filing fee, I did not give him permission to refile the dismissed lawsuits with an exem ption to the filing fee requirements of 28 U.S.C. 1915. If petitioner intends to pursue h is new lawsuits, he must submit trust fund account statements for the six-month period im m ediately preceding the filing of his complaints. Petitioner's complaints were submitted on July 8, 2008 and July 12, 2008. His trust fund account statements should cover the six-month period beginning approximately January 7, 2008 and ending approximately July 11, 2008. Once petitioner has submitted the necessary statements, I will calculate his initial partial payments and advise him of the am ou nt he will have to pay before the court can screen the merits of his complaints under 28 U.S.C. 1915(e)(2). ORDER IT IS ORDERED that petitioner may have until August 8, 2008, in which to submit tru st fund account statements for the period beginning approximately January 7, 2008 and endin g approximately July 11, 2008. If, by August 8, 2008, petitioner fails to respond to this order, I will assume that he wishes to withdraw these actions voluntarily and, in that 3 Case: 3:08-cv-00398-bbc Document #: 3 Filed: 07/22/2008 Page 4 of 4 case, the clerk of court is directed to close these files without prejudice to petitioner's filing his cases at a later date. E n tered this 18 t h day of July, 2008. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge 4

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