Rega v. Shipley-Rega

2010 | Cited 0 times | D. Maine | November 17, 2010


Plaintiff, an inmate at the Maine State Prison, Warren, Maine, seeks leave to proceed in forma pauperis. The Application to proceed in forma pauperis has been completed and is accompanied by a Certificate signed by an authorized individual from the Institution. The Certificate evidences that the applicant has $123/87 in his account as of October 18, 2010; that over the last six months the average deposits have been $86.83 and the average monthly balance has been $100.65.

The application is GRANTED, however, pursuant to 28 U.S.C. section 1915(b)(1), Plaintiff is required to pay the entire filing fee in this matter as funds become available. An initial partial filing fee is hereby ASSESSED in the amount of $24.77. In the event Plaintiff elects to proceed with this matter and so notifies the Court, the initial partial filing fee shall be forwarded by the institution in accordance with this Order. Subsequent payments of twenty percent (20%) of Plaintiff's prior monthly income shall be forwarded directly by the institution each time the amount in the inmate's account exceeds $10.00 until such time as the entire filing fee of $350.00 has been paid. Plaintiff is advised that, in the event he is released from incarceration prior to the filing fee of $350.00 being paid in full, he is still required to pay the entire filing fee, absent further order of the court relieving him of the obligation.

In addition, Plaintiff is hereby on notice that the Court may dismiss this action if it:

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b). If the Court does dismiss the action under this section, Plaintiff will still be required to pay the filing fee in full.

Before he decides to incur the cost of this suit I strongly caution Rega that this "civil action" is susceptible to immediate dismissal on several grounds. Rega lists his former wife as his lone defendant. Rega is currently at the Maine State Prison and he lists a Maine attorney as his wife's attorney so she is presumably a resident of Maine also. If this is true, there is no diversity jurisdiction. See 28 U.S.C. § 1332; Hall v. Curran, 599 F.3d 70 (1st Cir. 2010). Rega's complaint indicates that he wants to appeal a state court divorce judgment that was affirmed on appeal to the Maine Law Court on October 12, 2010. As pled this does not raise a federal question. See 28 U.S.C. § 1331; Barber v. Barber, 62 U.S. 592 (1858); see also Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

Further, Plaintiff is hereby on notice that a prisoner with three in forma pauperis actions dismissed under section 1915(e) may not thereafter, absent "imminent danger of serious physical injury," file a new action without prepayment of the entire filing fee. 28 U.S.C. § 1915(g).

Now therefore, Plaintiff shall notify the Court no later than December 8, 2010, whether he intends to incur the cost of the filing fee and proceed with this action, or whether he intends to forego this litigation at this time. If Plaintiff elects to proceed, he shall clearly indicate in writing that he understands his obligation to pay the full $350 filing fee as funds are available, and he shall forward the initial partial filing fee of $24.77 to the Court together with that written notification to indicate that he nevertheless wishes to proceed with the action. Failure to fully comply with this Order will result in the issuance of a recommendation to dismiss the Complaint. A copy of this Order shall be forwarded to the Business Office of the Maine State Prison, Warren, Maine, following Plaintiff's indication to the Court that he intends to go forward with this matter and incur the $350.00 cost of suit.


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