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Day v. Hughes et al                                                                              Doc. 6
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAVID A. DAY,
Plaintiff,
v.                                                                                               Case No.   11C0174
JEFFREY S. HUGHES,
MICHAEL BERTLING, and
MCLARIO HELM & BERTLING SC
Defendant.
ORDER
Plaintiff seeks relief under 42 U.S.C. § 1983 and has requested leave to proceed
in forma pauperis, pursuant to 28 U.S.C. § 1915.   Prisoners must still pay the entire
statutory filing fee of $350, regardless of whether in forma pauperis status is ultimately
granted.                                                                                         28 U.S.C. § 1915(b)(1); Newlin v. Helman, 123 F.3d 429, 432 (7th Cir. 1997),
overruled on other grounds by Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000).  However, a
plaintiff prisoner is allowed to pay the filing fee in increments according to the formula set
forth in                                                                                         § 1915(b)(1).  Under this provision, the court will assess an initial partial filing fee
of twenty percent of the greater of:                                                             (1) the average monthly deposits into the plaintiff’s
prison account; or (2) the average monthly balance in the plaintiff’s prison account, each
for the six-month period immediately preceding the filing of the complaint.  After the initial
fee is paid, the agency having custody of the plaintiff captures twenty percent of the
income deposited to the plaintiff’s prison trust account each month.  Once the accumulated
twenty percent deductions exceed $10.00, prison officials shall forward the accumulated
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deductions to the Clerk of the Court towards the plaintiff’s filing fee.   Williams v. Litscher,
115 F. Supp. 2d 989, 991 (W.D. Wis. 2000).
The clerk’s office has received a certified copy of plaintiff’s prisoner trust account
statement for the past six months.   A review of this statement reveals that the average
monthly deposit into plaintiff’s prison account was $38.22 and the average monthly balance
was $176.32.   Thus, in accordance with § 1915(b)(1), plaintiff is required to pay an initial
partial filing fee of $35.26 (twenty percent of $176.32).
Plaintiff shall pay this initial partial filing fee of $35.26 to the clerk of this court within
21 days of the date of this order.   Failure to pay the initial partial filing fee within the time
specified will result in dismissal of this action, pursuant to Fed. R. Civ. P. 41(b) and Civil
L.R. 41(c) (E.D. Wis. 2010).
Notice to Plaintiff:   Please be aware that 28 U.S.C. § 1915(g) creates a “three
strikes” rule.   This means that if a prisoner files three actions or appeals which are
dismissed as frivolous or malicious or for failure to state a claim upon which relief can be
granted, that prisoner may not bring any other actions in forma pauperis, unless he or she
is in imminent danger of serious physical injury.                                                    § 1915(g).
If you believe you may incur a “strike” under § 1915(g) when the merits of your
claim(s) are assessed at a later stage of this litigation, and you want to avoid that
possibility, you may notify the Clerk of Court in writing within twenty-one days of the date
of this order, stating that you do not wish to continue prosecuting this civil action.   If we
receive such notification, this case will be dismissed without prejudice, without your
incurring a “strike” under § 1915(g), and without your paying the filing fee as set forth in this
order.   If, however, you simply do not pay the initial partial filing fee within the period set
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forth in this order, this case may be dismissed with prejudice, and you will still be required
to pay the entire $350 filing fee.   A dismissal for failure to pay the initial partial filing fee,
however, is never counted as a “strike” under § 1915(g).
NOW, THEREFORE, IT IS HEREBY ORDERED that within 21 days of the date of
this order, plaintiff shall forward to the Clerk of this Court the sum of $35.26 as an initial
partial filing fee in this action.
After the initial partial filing fee is paid, the court will then review plaintiff’s legal
claim(s) to determine whether the action may proceed in forma pauperis.  Claims that are
frivolous or malicious, fail to state a claim upon which relief may be granted, or seek
monetary  relief  against  defendants  with  immunity  will  be  dismissed  at  this  stage.
§ 1915(e)(2)(B).   Please note that if any one claim survives this review, plaintiff will not
incur a § 1915(g) “strike.”
IT IS ALSO ORDERED that copies of this order be sent to the warden of the
institution where the inmate is confined and to Corey F. Finkelmeyer, Assistant Attorney
General, Wisconsin Department of Justice, P.O. Box 7857, Madison, Wisconsin, 53707-
7857.
Dated at Milwaukee, Wisconsin this 24th day of February, 2011.
/s
LYNN ADELMAN
District Judge
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