Douglas, Roderick v. Wall, Edward et al

Filing 13

ORDER granting plaintiff Roderick Douglas's 2 motion for leave to proceed without prepayment of fees. Initial partial filing fee of $ 1.60 assessed. Initial partial filing fee due 7/22/2013. Plaintiff's 5 motion for appointment of counsel is DENIED without prejudice. Signed by Magistrate Judge Peter A. Oppeneer on 6/27/2013. (jef),(ps)

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

RODERICK D. DOUGLAS,
Plaintiff,

ORDER
13-cv-301-wmc

v.
EDWARD F. WALL, et al.,
Defendants.

Plaintiff Roderick Douglas, a prisoner incarcerated in the Wisconsin Department of
Corrections at the Stanley Correctional Institution, has submitted a proposed civil action under
42 U.S.C. § 1983. With the exception of habeas corpus proceedings, the fee for civil actions
filed after May 1, 2013 is $400 unless a litigant qualifies as indigent under the federal in forma
pauperis statute, 28 U.S.C. § 1915(a), in which case the fee is $350. Plaintiff has filed a certified
copy of his inmate trust fund account statement in support of his motion for leave to proceed
in forma pauperis in this case. (Dkt. # 2, # 10). After considering the motion and supporting
documentation, the court concludes that plaintiff qualifies for indigent status for reasons set
forth briefly below.
Because plaintiff is incarcerated, his case is governed by the Prisoner Litigation Reform
Act (PLRA), 28 U.S.C. § 1915(b), which requires indigent inmates to pay by installment the
entire filing fee for civil actions and appeals. The federal in forma pauperis statute does not permit
a court to waive a prisoner’s entire obligation to pay filing fees, but it does allow a qualifying
individual to proceed without prepaying some or all of the filing fee. To determine whether a
prisoner qualifies for indigent status for purposes of the PLRA, 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. In other words, he must make an initial partial payment
of the filing fee before the court will consider his complaint. Thereafter, he shall be required to
make monthly installment payments from his trust fund account. 28 U.S.C. § 1915(b)(2).
Using information for the relevant time period from plaintiff’s trust fund account
statement, 20% of the average monthly balance in plaintiff’s account is $0.51, but 20% of
plaintiff’s average monthly deposits is $1.60. Because the greater of the two amounts is 20%
of the average monthly deposits, or $1.60, this is the amount plaintiff will be assessed as an
initial partial payment of the filing fee. For this case to proceed, plaintiff must submit this
amount on or before July 22, 2013.
If plaintiff does not have funds to make the initial partial fee payment in his regular
account, he must arrange for prison officials to pay some or all of the assessment from his release
account. This does not mean that plaintiff is free to ask prison officials to pay all of his filing
fee from his release account. The only amount plaintiff must pay at this time is the $1.60 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 ensure
that they are aware they should send plaintiff’s initial partial payment to this court.
In addition, the court notes that plaintiff has filed a motion for “appointment of
counsel.” (Dkt. #5). It is well established that civil litigants have no constitutional or statutory
right to the appointment of counsel. See, e.g., Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir.

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1997); Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). The most a
court can do is determine whether to recruit counsel pro bono to assist an eligible plaintiff who
proceeds under the federal in forma pauperis statute. See 28 U.S.C. § 1915(e)(1) (“The court may
request an attorney to represent any person unable to afford counsel.”); Pruitt v. Mote, 503 F.3d
647, 653-54 (7th Cir. 2007) (en banc) (noting that, at most, the federal IFP statute confers
discretion “to recruit a lawyer to represent an indigent civil litigant pro bono publico”). In other
words, a reviewing court only has discretion to recruit a volunteer. Ray, 706 F.3d at 867. Until
the court has screened the complaint as required by the PLRA, 28 U.S.C. § 1915A, any motion
requesting the assistance of volunteer counsel must be denied as premature. The court will
reconsider plaintiff’s request after it has completed the screening process.

ORDER
IT IS ORDERED that:
1.

The motion filed by plaintiff Roderick Douglas for leave to proceed without
prepayment of fees (Dkt. # 2) is GRANTED.

2.

Plaintiff is assessed $1.60 as an initial partial payment of the $350 fee for filing
this case as an indigent litigant. He shall submit a check or money order made
payable to the “Clerk of Court” in the amount of $1.60 on or before July 22,
2013. Plaintiff is advised that, if he fails to comply as directed or show
cause of his failure to do so, the court will assume that he does not wish
to proceed and this case will be dismissed without further notice pursuant
to Fed. R. Civ. P. 41(a).

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3.

Plaintiff’s motion for appointment of counsel (Dkt. #5) is DENIED without
prejudice.

4.

No further action will be taken in this case until the clerk’s office receives
plaintiff’s initial partial filing fee as directed above and the court has screened the
complaint as required by the PLRA, 28 U.S.C. § 1915A. Once the screening
process is complete, a separate order will issue as soon as practicable depending
on the demands of this court’s heavy docket.

Entered this 27th day of June, 2013.
BY THE COURT:

/s/
PETER OPPENEER
Magistrate Judge

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