United States District Court, E.D. Pennsylvania
May 25, 2004.
BRETT LOVELACE, ET AL
The opinion of the court was delivered by: FRANKLIN VAN ANTWERPEN, District Judge
MEMORANDUM AND ORDER
Plaintiff, a prisoner at Lancaster County Prison, 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
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 § 804(a)(3).
Plaintiff's prison account statement for the six-month period
immediately preceding the filing of his complaint shows average monthly
deposits of $90.83, average monthly balances of $9.29, and a current
balance of $.95. Based upon this financial information, an initial
partial filing fee of $18.17 is assessed. The Warden or other appropriate
official at Lancaster County Prison, or at any prison at which plaintiff
may be incarcerated, will be directed to deduct $18.17 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 that the balance in plaintiff's
prison 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
Plaintiff may not have realized when he brought this civil action that
he is required to pay the filing fee, and that even if the full filing
fee, or any portion thereof, has been paid, the Court must dismiss the
case at any time if it determines 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 case is dismissed for any of these reasons,
there is no provision in the Act to allow any portion of the filing fee
to be returned to the prisoner.
Therefore, plaintiff is given twenty (20) days from the date of this
order to decide whether to proceed with this case in this Court. If
within that time, plaintiff decides not to proceed with the case, he need
not pay the $150 filing fee.
For the foregoing reasons, it is, this day of May, 2004, 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, a
notice that he wishes to proceed with this action and thereby obligate
himself to payment of the $150 filing fee, this action will be
3. The Clerk of Court shall CLOSE this action statistically.