The opinion of the court was delivered by: LEGROME DAVIS, District Judge
Plaintiff, a prisoner at the George W. Hill Correctional Facility,
seeks to bring a civil action in forma pauperis,*fn1 without
prepayment of fees or security therefor, asserting claims pursuant to
42 U.S.C. § 1983. 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, establishes certain financial requirements for
prisoners who are attempting to bring a civil action or file an appeal
in forma pauperis.
Under the Act, 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). The Act requires a prisoner seeking to
proceed in forma pauperis to submit a certified copy of his
inmate trust fund account statement for the 6-month period immediately
preceding the filing of his complaint so that the Court can determine how
the $150 filing fee will be paid. § 804(a)(1).
The prisoner must obtain this statement from the appropriate official
of each prison at which he was or is confined. Id. The Court
must then "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 6-month period
immediately preceding the filing of the complaint. . . ."*fn2 §
Plaintiff's inmate trust fund account statement for the six-month
period immediately preceding the filing of this complaint shows average
monthly deposits of $25.57, average monthly balances of $3.11, and a
current balance of $.35. Based upon this financial information, he is
assessed an initial partial filing fee of $5.11. The Warden or other
appropriate official at the George W. Hill Correctional Facility or at
any prison at which plaintiff is or may be incarcerated will be directed
to deduct $5.11 from plaintiff's inmate trust fund account, and forward
that amount to the Clerk of the United States District Court for the
Eastern District of Pennsylvania. After the initial partial filing fee is
collected and forwarded to the Clerk, the Warden or other appropriate
official at the George W. Hill Correctional Facility or at any prison at
which plaintiff may be incarcerated will be directed to deduct from
plaintiff's prison account each time that 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 and forward that amount to the Clerk of Court until the filing fee is paid.
Plaintiff may not have known when he brought this action that he must
pay the filing fee, and that even if the full filing fee, or any part of
it, has been 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 Act does not permit the
prisoner to get his filing fee back.
We will give plaintiff twenty (20) days from the date of this order to
decide whether he wants to proceed with this case.
If by that time, plaintiff decides not to proceed with the case, he
need not pay the $150 filing fee.
For the foregoing reasons, this day of May, 2004, it is hereby ORDERED
1. The petition is DENIED WITHOUT PREJUDICE to its reassertion in
accordance with the terms of this order;
2. If plaintiff files with the Court within twenty (20) days from the
date of this order a notice that he wishes to proceed with this action
and thereby obligate himself to pay the $150 filing fee, this action will
be reinstated; and
3. The Clerk shall CLOSE this action ...