Gulley, Dominique v. Haines, Timothy et al
Filing
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ORDER granting plaintiff's motion for leave to proceed without prepayment of fees. Initial partial filing fee of $ 0.20 assessed. (Initial partial filing fee due 10/21/2013.) Signed by Magistrate Judge Peter A. Oppeneer on 9/30/2013. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DOMINIQUE TREYMAIN GULLEY,
Plaintiff,
v.
ORDER
13-cv-678-wmc
TIMOTHY HAINES, JEROME
SWEENEY and DAVID GARDNER,
Defendants.
Plaintiff Dominique Treymaine Gulley, a prisoner incarcerated in the Wisconsin
Department of Corrections at the Wisconsin Secure Program Facility, 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 motion for leave to proceed in forma pauperis in this case.
(Dkt. # 2).
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).
From plaintiff’s trust fund account statement, 20% of the average monthly deposits
to plaintiff’s account is $0.00, but 20% of the average monthly balance is $0.20. Because
the greater of the two amounts is 20% of the average monthly balance, or $0.20, 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 October 21, 2013.
If plaintiff does not have the money 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 $0.20 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 Dominique Treymaine Gulley for leave to
proceed without prepayment of fees (Dkt. # 2) is GRANTED.
2.
Plaintiff is assessed $0.20 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 $0.20 on or before
October 21, 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 court 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 docket.
Entered this 30th day of September, 2013.
BY THE COURT:
/s/
PETER OPPENEER
Magistrate Judge
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