Jones v. Kuhl

Filing 4

Order Directing Case to be Closed for Plaintiff's failure to pay debt owed in case 07-C-594-C. Signed by Chief Judge Barbara B. Crabb on 2/8/10. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------B R AD L EY ALAN JONES, ORDER Plaintiff, 1 0 - cv -4 4 - b b c v. D A R R E L KUHL, D efendan t. --------------------------------------------Plaintiff Bradley Jones, a prisoner at the Jackson Correctional Institution in Black R i ver Falls, Wisconsin, has submitted a proposed civil action pursuant to 42 U.S.C. § 1983. H e asks for leave to proceed in forma pauperis and has supported his request with a copy of h is six-month trust fund account statement. I have examined a copy of this statement and review ed this court's own financial records. From these documents, I conclude that plaintiff has not been paying the debts he incurred under the 1996 Prison Litigation Reform Act in co nn ectio n with another lawsuit he filed previously in this district, Jones v. Bielke, 07-C59 4-C . Therefore, plaintiff is not entitled to proceed in forma pauperis in this action at this tim e. On October 29, 2007, plaintiff made the initial partial payment of $39.98 toward

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the fee for filing his complaint in case no. 07-C-594-C. In an order entered on December 26, 2007, the court acknowledged receipt of the initial partial payment and directed that the rem a in der of the $350 filing fee be deducted from plaintiff's account according to 28 U.S.C. § 1915(b)(2). On February 11, 2008, plaintiff filed a notice of appeal in case no. 07-C-594C , for which he owes a $455 filing fee, also to be paid in monthly installments pursuant to § 1915(b)(2). Plaintiff's last payment to this court was on January 14, 2008 and he p resen tly has an outstanding balance in case no. 07-C-594-C of $721.08. Until he is current w i th his payments, he will not be allowed to proceed in forma pauperis in this case or in any new case that he may file. 28 U.S.C. § 1915(b)(2) provides that "after payment of the initial partial filing fee, th e prisoner shall be required to make monthly payments of 20 percent of the preceding m onth's income credited to the prisoner's account . . . ." If the prisoner then files additional com plaints or appeals, the amount owed increases as well. For example, when plaintiff filed his complaint in case no. 07-C-594-C and made the initial partial payment, he became ob ligated to pay 20 percent of his income to reduce the balance due on the $350 filing fee. T h en when plaintiff filed his appeal in case no. 07-C-594-C, he became obligated to pay 40 percen t of his monthly income for both the $350 filing fee and the $455 appeal filing fee. N ewlin v. Helman, 123 F.3d 429, 436 (7th Cir. 1997), rev'd on other grounds by Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000) and Walker v. O'Brien, 216 F.3d 626 (7th Cir.

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2 0 0 0) (fees for filing more than one lawsuit or appeal accumulate). The trust fund account statem ent plaintiff submitted in this case shows that he has not been paying as required. In Lucien v. DeTella, 141 F.3d 773 (7th Cir. 1998), the Court of Appeals for the S even th Circuit cautioned prisoner litigants to keep a watchful eye on their accounts and in su re that amounts owed under the Prisoner Litigation Reform Act are withdrawn on a m o n th ly basis. "If in a given month the prison fails to make the required distribution from th e trust account, the prisoner should notice this and refrain from spending funds on p erso n al items until they can be applied properly." Id. at 776. Nonpayment of obligations a prisoner incurs under the Prisoner Litigation Reform Act for any reason other than destitutio n is to be understood as a voluntary relinquishment of the prisoner's right to file fu tu re suits in forma pauperis, just as if the prisoner had a history of frivolous litigation. T hurm an v. Gramley, 97 F.3d 185, 188 (7th Cir. 1996). It appears from the trust fund account statement that plaintiff filed in this case that h e is in arrears for at least $292.11 and likely much more than that. The chart below illustrates the calculation performed in reviewing plaintiff's financial statement. The first colum n shows the month in which plaintiff received income; the second column shows the am ou nt of his monthly income; the third column shows the amount plaintiff owed, which is 40% of the previous month's income; the fourth column shows the amount of plaintiff's m o n th ly payments; and the last column shows the minimum amount I am able to determine

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that plaintiff owes. M o nth Ju ly 2009 A ugu st 2009 S eptem ber 2009 O c to ber 2009 N ov em ber 2009 D ecem ber 2009 Jan uary 2010 F eb ru ary 2010 T O TA L $ 7 3 0.2 8 I n co m e $ 5 5 .0 0 $ 8 6 .9 2 $ 7 8 .9 6 $ 1 8 8.2 0 $ 1 4 3.8 0 $ 7 3 .9 6 $ 1 0 3.4 4 $ 2 2 .0 0 $ 3 4 .7 7 $ 3 1 .5 8 $ 7 5 .2 8 $ 5 7 .5 2 $ 2 9 .5 8 $ 4 1 .3 8 $ 2 9 2.1 1 A m o un t O w ed Amount Paid $0 $0 $0 $0 $0 $0 $0 $0 $0 $ 2 2 .0 0 $ 3 4 .7 7 $ 3 1 .5 8 $ 7 5 .2 8 $ 5 7 .5 2 $ 2 9 .5 8 $ 4 1 .3 8 $ 2 9 2.1 1 A m ou n t Still Due

In sum, it is not possible to determine the exact amount plaintiff should have paid tow ard his debts because the court does not have the relevant trust fund account statements fro m plaintiff. Regardless, that job belongs to plaintiff and prison officials at the institutions in which he was confined. Hall v. Stone, 170 F.3d 706 (7th Cir. 1999) (order under 28 U .S .C . § 1915(b) directs warden as trustee of account to disburse amounts owed in accorda nce with statutory directive). As soon as this court is notified that plaintiff is no longer in arrears for the filing fees

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in case no. 07-C-594-C, he may renew his request for leave to proceed in forma pauperis in this case. However, he should take note that he will have to support his request for leave to pro ceed in this case with a certified trust fund account statement for the full six-month perio d immediately preceding the filing of his renewed request.

ORDER IT IS ORDERED that until plaintiff has paid the amounts he is in arrears under 28 U .S.C . § 1915(b)(2) in Jones v. Bielke, 07-C-594-C, he may not apply for leave to proceed in forma pauperis in any future action in this court except under the circumstances perm itte d under 28 U.S.C. § 1915(g). As soon as this court is notified that plaintiff's paym ents for the fees in case no. 07-C-594-C are up to date, plaintiff may renew his request for leave to proceed in forma pauperis in this case. Fina lly, IT IS ORDERED that the clerk is directed to close the file. Entered this 8t h day of February, 2010. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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