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)

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.

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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

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