McGhee, Laderian v. Suliene, Dalia et al
Filing
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ORDER on ifp request: Initial partial filing fee of $ 86.47 assessed. ( Initial partial filing fee due 2/21/2013.) Plaintiff's 3 Motion to withdraw initial partial filing fee from prison release account is denied as unnecessary. Signed by Magistrate Judge Stephen L. Crocker on 1/30/2013. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
LADERIAN McGHEE,
Plaintiff,
ORDER
v.
13-cv-67-bbc
DALIA SULIENE, KAREN ANDERSON,
LON BECHER and JOHN DOE(S),
Defendants.
Plaintiff Laderian McGhee, a prisoner at the Columbia Correctional Institution in
Portage, Wisconsin has submitted a proposed complaint under 42 U.S.C. § 1983. He asks for
leave to proceed in forma pauperis. Because plaintiff is a prisoner, he is subject to the 1996
Prisoner Litigation Reform Act. This means that before this court may decide whether he can
proceed with his complaint in forma pauperis, plaintiff will have to make an initial partial payment
of the filing fee.
In determining whether a prisoner litigant qualifies for indigent status this court applies
the formula set forth in 28 U.S.C. § 1915(b)(1).
According to this formula, a prisoner
requesting leave to proceed in forma pauperis must prepay 20% of the greater of the average
monthly balance or the average monthly deposits made to his prison account in the six-month
period immediately preceding the filing of the complaint.
In this case, 20% of the average monthly deposits is $15.21, but 20% of the average
monthly balance made to his account is $86.47. Because the greater of the two amounts is 20%
of the average monthly balance, or $86.47, that is the amount plaintiff will be assessed as an
initial partial payment of the filing fee. If plaintiff does not have the money to make the initial
partial payment in his regular account, he will have to arrange with prison authorities to pay
some or all of the assessment from his release account. This does not mean that plaintiff is free
to ask prison authorities to pay all of his filing fee from his release account. The only amount
plaintiff must pay at this time is the $86.47 initial partial payment. Before prison officials take
any portion of that amount from plaintiff’s release account, they may first take from plaintiff’s
regular account whatever amount up to the full amount plaintiff owes. Plaintiff should show a
copy of this order to prison officials to insure that they are aware they should send plaintiff’s
initial partial payment to this court.
With his complaint, plaintiff has also filed a motion to use his release account funds to
pay the initial partial payment for filing this case. See dkt. 3. The language in 28 U.S.C. §
1915(b)(1) suggests that prison officials are required to use a prisoner’s release account to satisfy
an initial partial payment if no other funds are available. Carter v. Bennett, 399 F. Supp. 2d 936,
936-37 (W.D. Wis. 2005). Because plaintiff’s initial partial payment may already be taken from
his release account fund, I will deny his motion as unnecessary.
ORDER
IT IS ORDERED that:
1. Plaintiff Laderian McGhee’s motion to use his release account funds to pay the initial
partial filing fee in this case, dkt. 3, is DENIED as unnecessary;
2. Plaintiff is assessed $86.47 as an initial partial payment of the $350 fee for filing this
case. He is to submit a check or money order made payable to the clerk of court in the amount
of $86.47 on or before February 21, 2013. If, by February 21, 2013, plaintiff fails to make the
initial partial payment or show cause for his failure to do so, he will be held to have withdrawn
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this action voluntarily. In that event, the clerk of court is directed to close this file without
prejudice to plaintiff's filing his case at a later date.
Entered this 30th day of January, 2013.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge
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