1. Suits brought in forma pauperis are governed by 28 U.S.C. §

1915.

1

 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHAWN SUTTON : CIVIL ACTION

:

v. :

:

CITY OF PHILADELPHIA : NO. 05-6053

M E M O R A N D U M A N D O R D E R

Plaintiff, a prisoner at the Philadelphia Industrial

Correctional Center (PICC), seeks to bring a civil action in

forma pauperis,

1 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 $250 filing fee. 

28 U.S.C. § 1915(b)(1). The prisoner must submit a certified

copy of his prison account statement for the 6-month period

immediately preceding the filing of his complaint so the Court

can determine how the $250 filing fee will be paid. 28 U.S.C. §

1915(a)(2). The prisoner must obtain this statement from the

appropriate official of each prison at which he was or is

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confined. Id. The Court must then "assess [the prisoner's

financial status] 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 . . . ."

Plaintiff's prison account statement for the period

immediately preceding the filing of his complaint shows average

monthly deposits of $.37, average monthly balances of $8.58, and

a current balance of $55.65. Based upon this financial

information, an initial partial filing fee of $1.72 is assessed. 

The Warden or other appropriate official at PICC, or at any

prison at which plaintiff may be confined, will be directed to

deduct $23.29 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 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

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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. 28 U.S.C. § 1915(e)(2)(B). 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 shall give plaintiff thirty (30) 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 filing fee.

For the foregoing reasons, it is, this day of

January, 2006, hereby ORDERED that:

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 thirty

(30) days from the date of this order a notice that he wishes to

proceed with this action and thereby obligate himself to pay the 

$250 filing fee, this action will be reinstated; and 

3. The Clerk of Court shall CLOSE this case

statistically.

BY THE COURT:

/S/ JOHN P. FULLAM, J.

 

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