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Wilborn v. Wal-Mart

September 19, 2007

CHARLIE WILBORN PLAINTIFF
v.
WAL-MART, INC., WEST MEMPHIS STORE, WEST MEMPHIS, AR, ET AL. DEFENDANTS



ORDER

Plaintiff Charlie Wilborn, who is currently being held in the Taccahatchie County Jail in Sumner, Mississippi, has commenced this pro se*fn1 action alleging that Defendants violated his constitutional rights and committed several torts when he was arrested in West Memphis, Arkansas, on June 1, 2007. See docket entry #2. For the reasons set forth herein, the Court will direct Plaintiff to file an Application to Proceed In Forma Pauperis, and an Amended Complaint.

I. Application to Proceed In Forma Pauperis

The Prison Litigation Reform Act ("PLRA") provides that a prisoner who is permitted to file a civil action in forma pauperis still must pay the full statutory filing fee of $350. 28 U.S.C. § 1915(b)(1). The only question is whether a prisoner will pay the entire filing fee at the initiation of the proceeding or in installments over a period of time. Ashley v. Dilworth, 147 F.3d 715, 716 (8th Cir. 1998). Even if a prisoner is without assets and unable to pay an initial filing fee, he will be allowed to proceed with his § 1983 claims, and the filing fee will be collected by the Court in installments from the prisoner's inmate trust account. 28 U.S.C. § 1915(b)(4). If the prisoner's case is subsequently dismissed for any reason, including a determination that it is frivolous, malicious, fails to state a claim, or seeks monetary relief against a defendant who is immune from such relief, the full amount of the $350 filing fee will be collected and no portion of this filing fee will be refunded to the prisoner.

Plaintiff has filed a handwritten "Financial Affidavit" stating that he wishes to proceed in forma pauperis. See docket entry #1. However, the document filed by Plaintiff does not contain enough financial information to: (1) determine whether he is entitled to proceed in forma pauperis; and (2) if so, assess an initial partial filing fee. See 28 U.S.C. § 1915(3)(b)(1) (providing that the initial partial filing fee shall be "20% of the greater of the average monthly deposits to the prisoner's account or the average monthly balance in the prisoner's account") (emphasis added). Accordingly, the Court will direct the Clerk to send Plaintiff an Application to Proceed In Forma Pauperis, along with prison trust fund calculation sheets.*fn2

II. Screening

The PLRA requires federal courts to screen prisoner complaints seeking relief against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or a portion thereof if the prisoner has raised claims that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

As it now stands, portions of Plaintiff's Complaint are too vague to enable the Court to determine whether it is frivolous or fails to state a claim for relief under § 1915A. Accordingly, Plaintiff is directed to file, within thirty days of the entry of this Order, an Amended Complaint that specifies: (1) the status of each of the three criminal charges filed against him regarding the June 1, 2007 incident at Wal-Mart;*fn3 (2) what personal property was taken from him on June 1, 2007; (3) how the three John Doe Defendants participated in the alleged theft of his personal property; and (4) how each of the named Defendants defamed him.

III. Conclusion

1. The Clerk is directed to send Plaintiff an Application to Proceed In Forma Pauperis, along with prison trust fund calculation sheets.

2. Plaintiff shall, within thirty days of the entry of this Order, file his properly and fully complete Application to Proceed In Forma Pauperis and prison trust fund calculation sheets.

3. Plaintiff shall, within thirty days of the entry of this Order, file an Amended Complaint containing the information specified herein.

4. Plaintiff is reminded (as fully explained in footnote 1 to this Order) that the failure to timely and properly comply with this Order could result in the dismissal of this case, without prejudice, pursuant to Local Rule 5.5(c)(2).

5. Service is not appropriate upon Defendants ...


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