Disch v. Braun

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Michael Disch, 	)
)
Plaintiff, 	) 	ORDER RE CONVERSION OF THIS
) 	ACTION TO A CIVIL RIGHTS ACTION
vs. 	) 	AND GRANTING PLAINTIFF'S
) 	MOTION TO PROCEED IN FORMA
Colby Braun, Warden, 	) 	PAUPERIS
)
Defendant. 	) 	Case No. 1:15-cv-087
______________________________________________________________________________
Plaintiff Michael Disch (“Disch”) is an inmate at the North Dakota State Penitentiary
(“NDSP”). 	He initiated the above-entitled action on June 30, 2015, with the submission of an
application to proceed in forma pauperis and what is styled as a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Construing Disch's petition liberally, the court concluded that the
appropriate construction would be treat this matter as a civil rights action. Consequently, on August
4, 2015, it issued an order directing Disch to make an election as to how he wished to proceed.1
On August 11, 2015, the court received correspondence from Disch advising that he wanted
to convert this action into a civil rights action. The court shall honor Disch's request and proceed
accordingly.
Although Disch is a prisoner, he must pay the statutory filing fee of $350.00 for this action
pursuant to 28 U.S.C. § 1915(b)(1). Based upon the information provided by Disch regarding his
finances, no partial filing shall be assessed. However, Disch shall be obligated to make monthly
payments in the amount as determined by 28 U.S.C. § 1915(b)(2) until the statutory filing fee is
1 In so doing, it advised Disch that should he elect to transform this action into a civil rights action, he would
be responsible for the full $350 civil filing fee, and that his clams would be subject to initial review pursuant to 28 U.S.C.
§ 1915A.
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paid in full. The full fee will be collected even if the court dismisses the case because it is frivolous
or malicious, fails to state a claim on which relief may be granted, or seeks money damages against
a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915(A).
Accordingly, IT IS HEREBY ORDERED that:
1. 	Disch's request to proceed in this matter in forma pauperis (Docket No. 1) is
GRANTED. Disch's habeas petition shall be "termed."
2. 	Disch is not assessed an initial partial filing fee. See 28 U.S.C. § 1915(b). The court
need not await payment of the filing fee to conduct its initial review of Disch's claims
and directs the Clerk of Court to refile what was originally styled as a habeas petition
as Disch's complaint. Cf. Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997)
("[T]he provisions of § 1915(b)(4) permit a prisoner to appeal if the prisoner has no
assets and no means to pay the initial partial appellate filing fee. In such a case, the
whole of the appellate filing fees are to be collected and paid by the installment
method contained in § 1915(b)(2)).
3. 	The filing fee owed shall be paid to the Clerk of this Court from Disch's inmate
spending account or release aid account in accordance with 28 U.S.C. § 1915(b)(2),
which requires the prisoner to make monthly payments of 20 percent of the
preceding month's income credited to the prisoner's account. Such payment shall be
made each time the amount in the inmate spending account or release aid account
exceeds $10.00 and continue until the statutory fee of $350.00 is paid in full.
4. 	A notice of this obligation shall be sent to Disch and the appropriate prison official.
5. 	The Clerk of Court shall not serve Defendant with the summons and complaint until
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directed to do so by the court, following completion of substantive review of Disch's
claims under 28 U.S.C. § 1915A.
Dated this 12th day of August, 2015.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court
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