Smith, Derrick v. Meisner, Michael et al

Filing 7

ORDER granting plaintiff's 6 motion for leave to proceed without prepayment of fees. Initial partial filing fee of $ 2.30 assessed. (Initial partial filing fee due 7/26/2013.) Signed by Magistrate Judge Peter A. Oppeneer on 6/28/2013. (jef),(ps)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN DERRICK L. SMITH, Plaintiff, ORDER 13-cv-387-wmc v. WARDEN MICHAEL MEISNER, et al., Defendants. In response to this court’s order, plaintiff Derrick Smith, a prisoner incarcerated in the Wisconsin Department of Corrections at the Columbia Correctional Institution, has now submitted a proposed civil action under 42 U.S.C. § 1983 on a form provided by the court along with motion for leave to proceed in forma pauperis and a trust fund account statement. (Dkt. ##4 - 6). 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. 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 $0.00, but 20% of plaintiff’s average monthly deposits is $2.30. Because the greater of the two amounts is 20% of the average monthly deposits, or $2.30, 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 26, 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 $2.30 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. 2 ORDER IT IS ORDERED that: 1. The motion filed by plaintiff Derrick Smith for leave to proceed without prepayment of fees (Dkt. # 6) is GRANTED. 2. Plaintiff is assessed $2.30 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 $2.30 on or before July 26, 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). 3. 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 28th day of June, 2013. BY THE COURT: /s/ PETER OPPENEER Magistrate Judge 3

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