Miller, Brad v. Grosshans, William et al

Filing 7

ORDER on ifp request: Initial partial filing fee of $ 9.90 assessed. (Initial partial filing fee due 5/22/2013.) Signed by Magistrate Judge Peter A. Oppeneer on 5/2/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

BRAD STEVEN MILLER,
Plaintiff,

ORDER

v.

13-cv-270-wmc

WILLIAM GROSSHANS, MARTY ORDINANS,
SHARON ZUNKER, JERALD BURGE,
MARY BARTELS, SARAH PROFITT,
SGT. HARTMAN, OFFICER BARTELS,
OFFICER SCHLISSLER and OTHERS JOHN DOE,
Defendants.

Plaintiff Brad Miller, a prisoner at the Wisconsin Resource Center in Winnebago,
Wisconsin has submitted a proposed complaint under 42 U.S.C. § 1983. He asks for leave to
proceed in forma pauperis. Because plaintiff is a prisoner, he is subject to the 1996 Prisoner
Litigation Reform Act. This means that before this court may decide whether he can proceed
with his complaint in forma pauperis, plaintiff will have to make an initial partial payment of the
filing fee.
In determining whether a prisoner litigant qualifies for indigent status this court applies
the formula set forth in 28 U.S.C. § 1915(b)(1).

According to this formula, a prisoner

requesting leave to proceed in forma pauperis must prepay 20% of the greater of the average
monthly balance or the average monthly deposits made to his prison account in the six-month
period immediately preceding the filing of the complaint.
From the trust fund account statement plaintiff has submitted, I calculate his initial
partial payment to be $9.90. If plaintiff does not have the money to make the initial partial
payment in his regular account, he will have to arrange with prison authorities to pay some or
all of the assessment from his release account. This does not mean that plaintiff is free to ask

prison authorities to pay all of his filing fee from his release account. The only amount plaintiff
must pay at this time is the $9.90 initial partial payment. Before prison officials take any
portion of that amount from plaintiff’s release account, they may first take from plaintiff’s
regular account whatever amount up to the full amount plaintiff owes. Plaintiff should show a
copy of this order to prison officials to insure that they are aware they should send plaintiff’s
initial partial payment to this court.
One additional matter deserves mention. In a letter to the clerk, plaintiff requests a
waiver of the filing fees and costs. Plaintiff says that he paid a $350 filing fee when he had
originally filed this case in the Eastern District of Wisconsin in May of 2010 and the case was
dismissed without prejudice. The case was assigned case number 10-cv-383-jps. I understand
plaintiff to be asking to apply his $350 payment in case 10-cv-383 to this present case. Plaintiff
mistakenly believes that he can re-use his filing fee payment because his case was dismissed
without prejudice. The administrative costs associated with filing a complaint accrued when
plaintiff’s complaint was processed and assigned a case number. A plaintiff whose case is
dismissed, whether at the outset or at some later stage, is not entitled to a re-use his filing fees
simply because the court did not reach the merits of his claims. As such, plaintiff will not be able
to apply the payment from his 2010 case to this case.

ORDER
IT IS ORDERED that plaintiff Brad Miller is assessed $9.90 as an initial partial payment
of the $350 fee for filing this case. He is to submit a check or money order made payable to the
clerk of court in the amount of $9.90 on or before May 22, 2013. If, by May 22, 2013, plaintiff

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fails to make the initial partial payment or show cause for his failure to do so, he will be held to
have withdrawn this action voluntarily. In that event, the clerk of court is directed to close this
file without prejudice to plaintiff's filing his case at a later date.

Entered this 2nd day of May, 2013.
BY THE COURT:

/s/
PETER OPPENEER
Magistrate Judge

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