Poff, William v. Durkan, Jenny et al

Filing 12

ORDER regarding payment of initial partial filing fee. Signed by Judge J. P. Stadtmueller on 2/13/14. (jat)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WISCONSIN
WILLIAM POFF,
Plaintiff,
v.

Case No. 13-CV-815-JPS

JENNY A. DURKAN,
SARAH Y. VOGEL,
MICHAEL SCOVILLE,
JOHN W. VAUDREUIL,
MUNISH SHARDA,
ROBERT G. BROWNELL,
PAUL L. SCHLIEVE,
MARK RUPPELT,
PETER FREITAG,
JOSEPH D. LAVELLE,
and STACY MAIER,

ORDER

Defendants.
The plaintiff, a prisoner proceeding pro se, filed a complaint in the
above-captioned action. The plaintiff has also filed a petition for leave to
proceed in forma pauperis. The total cost of filing a civil action is $400.00,
which includes the $350.00 statutory filing fee and a $50.00 administrative
fee. However, the $50.00 administrative fee does not apply to persons
granted in forma pauperis status. Pursuant to the Prison Litigation Reform
Act (PLRA), a prisoner plaintiff proceeding in forma pauperis is required to
pay the statutory filing fee of $350.00 for any civil action. See 28 U.S.C.
§ 1915(b)(1).
Under the PLRA, which amended the in forma pauperis statute, the
court must assess an initial partial filing fee of twenty percent of the average
monthly deposits to the plaintiff's account or average monthly balance in the

plaintiff’s prison account for the six-month period immediately preceding the
filing of the complaint, whichever is greater. Id. After the initial fee is paid,
the prisoner must make monthly payments of twenty percent of the
preceding month's income until the filing fee is paid in full. 28 U.S.C.
§ 1915(b)(2). “The agency having custody of the prisoner shall forward
payments from the prisoner’s account to the Clerk of the Court each time the
amount in the account exceeds $10 until the filing fees are paid.” Id.
The plaintiff filed a certified copy of his prisoner trust account
statement for the 3-month period immediately preceding the filing of the
complaint as required under 28 U.S.C. § 1915(a)(2). A review of this
information reveals that, for the 3-month period immediately preceding the
filing of the instant complaint, the average monthly deposit in the plaintiff's
prison account was $133.33. Because the plaintiff is currently housed in a
local jail, as opposed to a state prison, and his stay has been very short, the
Clerk of Court was unable to calculate an average monthly balance of the
plaintiff’s account. Thus, in accordance with the provisions of 28 U.S.C.
§ 1915(b)(1), the plaintiff is required to pay an initial partial filing fee of
$26.66. The plaintiff shall pay the initial partial filing fee of $26.66 to the Clerk
of Court on or before March 6, 2014. Failure to pay the initial partial filing fee
within the specified time period may result in dismissal of the action with
prejudice pursuant to Civil Local Rule 41(c) (E.D. Wis.) and Fed. R. Civ. P.
41(b).
The PLRA also provides that if a prisoner files more than three actions
or appeals which are dismissed as frivolous, malicious, or for failure to state
a claim upon which relief can be granted, the prisoner will be prohibited
from bringing any other actions in forma pauperis, unless the prisoner is in

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imminent danger of serious physical injury. 28 U.S.C. § 1915(g). In the event
that his action is later dismissed for any of the above reasons, it will have an
impact on the prisoner's ability to bring other actions in forma pauperis. This
analysis of the complaint is not undertaken by the court until after the initial
partial filing fee is paid. Accordingly, the plaintiff will be afforded an
opportunity to voluntarily dismiss this action to avoid incurring a “strike”
under § 1915(g).
Notice to Plaintiff: If you do not wish to pay the filing fee as set forth
in this Order or do not wish to proceed with this action to avoid incurring a
“strike” under §1915(g), you must notify the court by filing a letter with the
Clerk of Court on or before March 6, 2014, stating that you do not wish to
prosecute this civil action. If you write such a letter, this case will be
dismissed without prejudice. Voluntary dismissal will not be counted as a
“strike” under §1915(g).
NOW, THEREFORE, IT IS HEREBY ORDERED that on or before
March 6, 2014, the plaintiff shall forward to the Clerk of Court the sum of
$26.66 as an initial partial filing fee in this action.
Upon payment of the initial partial filing fee, the court will determine
whether the action can continue to proceed in forma pauperis. The court will
review the complaint to determine that the action is not frivolous or
malicious and that the complaint states a claim upon which relief can be
granted. If the complaint does not meet this standard, the action will be
dismissed.
IT IS ALSO ORDERED that copies of this order be sent to the Sauk
County Sheriff and the U.S. Marshals Service for the Western District of
Wisconsin, for service upon the plaintiff.
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In addition, the plaintiff should notify the Clerk of Court of any
change of address. Failure to do so could result in orders or other
information not being timely delivered, thus affecting the legal rights of the
parties.
Dated at Milwaukee, Wisconsin, this 13th day of February, 2014.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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