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NORFLEET v. #1 VALE #4166

United States District Court, N.D. Illinois, Eastern Division

October 13, 2004.

#1 VALE #4166, et al., Defendants.

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge


Marc Norfleet ("Norfleet") has just tendered a proposed 42 U.S.C. § 1983 ("Section 1983") Complaint, using the form provided to prisoners for that purpose by the Clerk's Office, and has accompanied the Complaint with (1) the Clerk-provided form of In Forma Pauperis Application and Financial Affidavit ("Application") and (2) a printout from the Cook County Department of Corrections ("County Jail," where he is now in custody) that reflects the transactions in his trust fund account there during the six months prior to bringing suit. This memorandum order is issued sua sponte because of the troublesome nature of the Application and Norfleet's financial information.

This is not Norfleet's first invocation of Section 1983 during the current year. In April 2004 he filed a Complaint against Mary Garay (mistakenly spelled "Gray") in Case No. 04 C 2952, also having complied with 28 U.S.C. § 1915 ("Section 1915") by submitting an Application and a trust fund account printout. At that time, even though he had $170 in his trust fund account (which had an average monthly balance of $234.78 during the preceding six-month period), so that he could then have paid the $150 filing fee in full, this Court did not comply literally with the strictures of Section 1915 because of its stated concern that such a payment would render Norfleet unable to continue with his regular commissary purchases. Instead it made the calculation that Section 1915 would otherwise have required, ordering an initial payment of $46.95 on account of the filing fee.

  But there are two disturbing factors reflected by the current Affidavit and trust fund printout, both of which render it more than questionable whether Norfleet should be permitted to proceed with this new lawsuit at this time. Here they are:

1. Although this Court's April 29, 2004 memorandum order in the earlier Case No. 04 C 2952 ordered the County Jail trust fund officer to collect the initial partial filing fee of $46.95 from Norfleet's trust fund account there and to pay it directly to the Clerk of this District Court, the current printout reflects no initial payment at all. Nor does the printout reflect that any other installment payment has been made, as is required by Section 1915(b)(2) by reason of subsequent deposits into the trust fund account. Instead Norfleet has simply continued to make regular commissary purchases for his own benefit, all of which have reduced the present account balance to just $.12.
2. In Norfleet's current Affidavit dated September 9, 2004,*fn1 Affidavit ¶ 3 has checked off a "No" answer to each of the six itemized potential sources from which Norfleet could have received more than $200 during the last 12 months, with the last of those items (Application ¶ 3.f) calling for him to report receipts from "any other sources." But the combination of the trust fund printout from the earlier lawsuit and the printout submitted with the current Application reflects total deposits into the account during that 12-month period that aggregated $560: four deposits of $100 each, two deposits of $50 each and three deposits of $20 each. In short, Norfleet has filed a patently false statement under penalty of perjury.
  Before this Court turns to the consequences of such a false filing, more should be said about the inexcusable failure to make the required payments under Section 1915: To be sure, such nonpayment does reflect noncompliance by the County Jail personnel with this Court's April 29 order. And it is also true that this District Court's Clerk's Office lacks both the personnel and the resources that would be needed to monitor the individual accounts in the thousands of prisoner lawsuits that require small monthly payments on account of filing fees, as typically called for by the penny-wise and pound-foolish scheme*fn2 that Congress has shortsightedly enacted in Section 1915.

  But those things cannot be permitted to obscure the fact that the fee payment obligation is Norfleet's own under Section 1915(b). There is simply no excuse for his having flouted the system that has granted him the opportunity to discharge that obligation on the installment plan — there is simply no excuse for his taking money that belongs to the federal government and spending it for his personal purchases at the County Jail commissary. Accordingly this memorandum order is also being placed in the court file in Case No. 04 C 2952, and Norfleet will not be permitted to proceed further with that lawsuit until he has satisfied his accrued obligation to make payments on account of the filing fee: the original $49.65 plus $44 ascribable to the $220 in later deposits to his account (see Section 1915(b)(2)), or a total of $93.65.*fn3

  Now to return to the impact on this newly-submitted Complaint of what has been said in this opinion. In the absence of a showing on Norfleet's part as to the source or sources of the $560 in total deposits already referred to, this Court cannot determine whether his "allegation of poverty is untrue," which would call for dismissal of this case under Section 1915(e)(2)(A). But despite that inability, under the circumstances described here this Court cannot and will not allow Norfleet to proceed to invoke the benefits of Section 1915. In the absence of a further filing by Norfleet that provides a full and satisfactory explanation of the improprieties described in this opinion, to be delivered to this Court's chambers on or before October 28, 2004, this Court will deny Norfleet the opportunity to proceed in forma pauperis and will dismiss both the Complaint and this action without prejudice.

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