Opinion
Civil Action No. 03-0971
April 1, 2003
MEMORANDUM AND ORDER
Plaintiff, a prisoner at SCI Huntingdon, seeks to bring a civil action in forma pauperis, asserting claims pursuant to 42 U.S.C. § 1983. The plaintiff filed the action without prepayment of fees or security.
Suits brought in forma pauperis are governed by 28 U.S.C. § 1915.
Under the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (April 26, 1996) (the "Act"), which amends 28 U.S.C. § 1915, a prisoner bringing a civil action in forma pauperis must pay the full amount of the $150 filing fee. Pub.L. No. 104-134 § 804(a)(3). He must submit a certified copy of his inmate trust fund account statement for the six month period immediately preceding the filing of his complaint so the Court can determine how the $150 filing fee will be paid. § 804(a)(1). This statement can be obtained from the appropriate office of the prison at which the prisoner is confined. Id.
The Court must "assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of (A) the average monthly deposits to the prisoner's account; or (B) the average monthly balance in the prisoner's account for the six month period immediately preceding the filing of the complaint. . . ." After the initial partial filing fee is paid, the plaintiff is "required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner [is required to] 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." § 804(a)(3).
Plaintiff's inmate trust fund account statement for the six month period immediately preceding the filing of his complaint shows average monthly deposits of $83.06, average balances of $10.74, and a current balance of $(-)1.80. Based upon this financial information, an initial partial filing fee of $16.61 must be assessed. The Warden or other appropriate official at SCI Huntingdon, or at any prison at which plaintiff is or may be incarcerated, will deduct $16.61 from plaintiff's prison account, when such funds become available, and forward that amount to the Clerk of the United States District Court for the Eastern District of Pennsylvania. Thereafter, each time the balance in plaintiff's inmate trust account exceeds $10, an amount no greater than 20 percent of the money credited to plaintiff's account during the preceding month will be deducted and forwarded to the Clerk of Court until the filing fee is paid.
Plaintiff may not have known when he filed this action that he must pay the filing fee. Even if the full filing fee, or any part of it, is paid, the Court must dismiss the case if it finds that the action is: (1) frivolous or malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. § 804(5). If the Court dismisses the case for any of these reasons, the filing fee cannot and will not be refunded.
Plaintiff will have twenty (20) days from the date of this Order to decide whether he wants to proceed with this case. If plaintiff decides not to proceed with the case, he need not pay the $150 filing fee.
ORDER
AND NOW, this 1st day of April, 2003, it is ORDERED that:
1. The petition is DENIED WITHOUT PREJUDICE.
2. If within twenty (20) days from the date of this Order plaintiff files with the Clerk a notice that he wishes to proceed with this action and obligates himself to pay the $150 filing fee, this action will be reinstated; and
3. The Clerk shall CLOSE this action statistically.