IN THE UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

 

FELIX D. WHITTINGTON,

 Plaintiff,

 v.

DONALD VAUGHN, et al.,

 Defendants.

 CIVIL ACTION

 NO. 02-4346

O R D E R

AND NOW, this 3rd day of July, 2002, upon consideration of the plaintiff's Motion to

Proceed in Forma Pauperis, it is hereby ORDERED that the said motion is DENIED and that the

complaint is DISMISSED without prejudice for failure to comply with 28 U.S.C. § 1915, which

now provides in pertinent part as follows:

(a)(1) Subject to subsection (b), any court of the United States may authorize the

commencement, prosecution or defense of any suit, action or proceeding, civil or

criminal, or appeal therein, without prepayment of fees or security therefor, by a

person who submits an affidavit that includes a statement of all assets such prisoner

possesses that the person is unable to pay such fees or give security therefor. Such

affidavit shall state the nature of the action, defense or appeal and affiant's belief that

the person is entitled to redress.

(2) A prisoner seeking to bring a civil action or appeal a judgment in a civil

action or proceeding without prepayment of fees or security therefor, in

addition to filing the affidavit filed under paragraph (1), shall submit a certified

copy of the trust fund account statement (or institutional equivalent) for the

prisoner for the 6-month period immediately preceding the filing of the

complaint or notice of appeal, obtained from the appropriate official of each

prison at which the prisoner is or was confined.

(3) An appeal may not be taken in forma pauperis if the trial court certifies in writing

that it is not taken in good faith.

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(b)(1) Notwithstanding subsection (a), if a prisoner brings a civil action or files an

appeal in forma pauperis, the prisoner shall be required to pay the full amount of a

filing fee. The court shall 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 or notice of appeal.

(2) After payment of the initial partial filing fee, the prisoner shall be 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 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.

(3) In no event shall the filing fee collected exceed the amount of fees permitted by

statute for the commencement of a civil action or an appeal of a civil action or

criminal judgment.

(4) In no event shall a prisoner be prohibited from bringing a civil action or appealing

a civil or criminal judgment for the reason that the prisoner has no assets and no

means by which to pay the initial partial filing fee.

(c) Upon the filing of an affidavit in accordance with subsections (a) and (b) and the

pre-payment of any partial filing fee as may be required under subsection (b), the

court may direct payment by the United States of the expenses of (1) printing the

record on appeal in any civil or criminal case, if such printing is required by the

appellate court; (2) preparing a transcript of proceedings before a United States

magistrate in any civil or criminal case, if such transcript is required by the district

court, in the case of proceedings conducted under section 636(b) of this title or under

section 3401(b) of title 18, United States Code; and (3) printing the record on appeal

if such printing is required by the appellate court, in the case of proceedings

conducted pursuant to section 636(c) of this title. Such expenses shall be paid when

authorized by the Director of the Administrative Office of the United States Courts.

. . .

(d) . . . (2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that --

(A) the allegation of poverty is untrue; or

(B) the action or appeal --

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(i is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune

for such relief.

(f)(1) Judgment may be rendered for costs at the conclusion of the suit or action as in

other proceedings, but the United States shall not be liable for any of the costs thus

incurred. If the United States has paid the cost of a stenographic transcript or printed

record for the prevailing party, the same shall be taxed in favor of the United States.

(2)(A) If the judgment against a prisoner includes the payment of costs under this

subsection, the prisoner shall be required to pay the full amount of the costs ordered.

(B) The prisoner shall be required to make payments for costs under this subsection in

the same manner as is provided for filing fees under subsection (a)(2).

(C) In no event shall the costs collected exceed the amount of the costs ordered by

the court.

(g) In no event shall a prisoner bring a civil action or appeal a judgment in a civil

action or proceeding under this section if the prisoner has, on 3 or more prior

occasions, while incarcerated or detained in any facility, brought an action or appeal

in a court of the United States that was dismissed on the grounds that it is frivolous,

malicious, or fails to state a claim upon which relief may be granted, unless the

prisoner is under imminent danger of serious physical injury.

(h) As used in this section, the term 'prisoner' means any person incarcerated or

detained in any facility who is accused of, convicted of, sentenced for, or adjudicated

delinquent for, violations of criminal law or the terms and conditions of parole,

probation, pretrial release, or diversionary program.

BY THE COURT:

 

MARVIN KATZ, J.

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