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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

GREGORY ROLAND,

Plaintiff,

v. CASE NO. 1:11-cv-00048-SPM -GRJ

MICHEAL BRYANY,

Defendant.

_____________________________/

O R D E R

Pending before the Court is Plaintiff’s Complaint Against Micheal Bryany. The

complaint is not filed on the standard forms and is not accompanied by a filing fee or a

motion for leave to proceed in forma pauperis. (Doc. 1.) This case is the fourth lawsuit

Plaintiff has filed in the last few weeks and each one has been similarly deficient. (See

Case Nos. 1:11cv034, 1:11cv035, 1:11cv036). As he has been previously instructed,

local court rules provide that no "civil action commenced by pro se litigants under 42

U.S.C. § 1983 or 2000e (Title VII), 28 U.S.C. §§ 1331 or 1346, shall be considered by

the court unless the appropriate forms have been properly completed, signed, and filed

by the litigant." N.D. Fla. Loc. R. 5.1(J)(2). Plaintiff must, therefore, submit an

"amended complaint," clearly designated as such, on court forms which will be provided

to him by the Clerk of Court. 

Although Plaintiff has provided very limited information in his “complaint,” it

appears that Plaintiff is seeking damages for legal malpractice from his lawyer in a

pending state court matter. A claim for legal malpractice is not a constitutional claim

and therefore must be brought in state court. On the other hand if Plaintiff is seeking
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release from custody but he has not yet been convicted in state court, Plaintiff should

request this relief in state court. A federal court cannot order the release of the Plaintiff

from custody in a criminal case pending in state court. Because the Plaintiff has not

used the standard form for filing his complaint, if Plaintiff believes he has a viable claim

after considering the information in this order, Plaintiff must file an amended complaint

utilizing the court’s standard form.

Further, since the filing of the three previous lawsuits it appears that Plaintiff is

now incarcerated at the Levy County Jail. Under these circumstances, leave to

proceed without prepayment of court costs is assessed differently. Section 1915, as

amended by the "Prison Litigation Reform Act of 1995 (hereinafter "PLRA"), requires

the court to assess an initial partial filing fee on all inmates who are permitted to

proceed in forma pauperis. Under the PLRA, all prisoners will eventually pay the district

court's entire $350 filing fee when bringing a civil action, or filing an appeal, in forma

pauperis. If a prisoner's account statement shows that he cannot pay even the required

initial partial fee, the civil action may nevertheless proceed; however, the total $350 fee

will be assessed and deducted from future deposits to Plaintiff's prison account until the

total filing fee is paid. Fees are not refundable, regardless of dismissal of the action.

[The obligation to pay the full amount of the filing fee continues even if Plaintiff is

released from prison.] Even after the initial partial fee is paid, the PLRA requires this

court to dismiss the case at any time if it determines that the allegation of poverty is

untrue, or the action is frivolous or malicious, fails to state a claim upon which relief may

be granted, or seeks monetary relief against a defendant who is immune from such

relief. 28 U.S.C. § 1915(e)(2). Furthermore, § 1915(g) prohibits a prisoner from filing

Case No: 1:11-cv-00048-SPM -GRJ
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any further suit or appeal without full prepayment of the filing fee if the prisoner has had

three actions or appeals dismissed on one of the previously mentioned grounds set out

in Section 1915(e)(2).

The Court must assess an initial partial filing fee based on the average monthly

deposits in Plaintiff's prison bank account in accordance with 28 U.S.C. § 1915(b)(1). 

Thus, Plaintiff must submit a computer printout for his inmate bank account for the six

(6) month period immediately preceding the filing of the complaint; i.e., the period from

August 1, 2010 to February 28, 2011. Plaintiff must obtain account statements from

the appropriate official of each prison at which he is, or has been, confined for the six

(6) month period prior to the filing of this complaint. If Plaintiff was not incarcerated

during any portion of this time period, he must specifically advise the court. 

Accordingly, it is ORDERED:

1. The clerk of court shall forward to Plaintiff an application for leave to proceed

in forma pauperis with a Prisoner Consent Form and a blank civil rights complaint

2. Plaintiff shall have until April 27, 2011, to either: (1) file a computer printout of

the transactions in his prison account as directed in this order along with a completed

application to proceed in forma pauperis, or (2) pay the full $350.00 filing fee, or (3) file

a notice of voluntary dismissal of this case pursuant to Fed.R.Civ.P. 41(a). Plaintiff must

also sign, complete, and have a prison official sign the Prisoner Consent Form.

 3. Failure to respond to this order as instructed will result in a recommendation

of dismissal of this action for failure to prosecute and failure to comply with an order of

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this court. 

DONE AND ORDERED this 30 day of March, 2011. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

Case No: 1:11-cv-00048-SPM -GRJ