Robinson, Dominique v. Tegels, Lizzie

Filing 4

ORDER on ifp request: Initial partial filing fee of $ 139.00 assessed. ( Initial partial filing fee due 4/12/2013.) Plaintiff's 2 motion to use his release account to pay the entire filing fee in this case is denied. Signed by Magistrate Judge Peter A. Oppeneer on 3/22/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DOMINIQUE ROBINSON,
Plaintiff,

ORDER

v.

13-cv-198-wmc

LIZZIE TEGELS, New Lisbon Corr. Inst.,
Defendant.

Plaintiff Dominique Robinson, a prisoner at the New Lisbon Correctional Institution in
New Lisbon, 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 $16.09, but 20% of the average
monthly balance made to his account is $139.00. Because the greater of the two amounts is
20% of the average monthly balance, or $139.00, 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 $139.00 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 also filed a motion to use his release account funds to pay
the entire fee for filing this case. See dkt. 2. Although it is commendable that plaintiff is taking
responsibility for paying his entire filing fee promptly, he cannot use his release account funds
in the manner he requests. 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).
However, with the exception of initial partial payments, federal courts lack the authority to tell
state officials whether and to what extent a prisoner should be able to withdraw money from his
release account. Because plaintiff cannot use his release account funds to pay the entire balance
of the $350 filing fee, I will deny his motion.

ORDER
IT IS ORDERED that:
1. Plaintiff Dominique Robinson’s motion to use his release account funds to pay the
entire filing fee in this case, dkt. 2, is DENIED;

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2. Plaintiff is assessed $139.00 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 $139.00 on or before April 12, 2013. If, by April 12, 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 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 22nd day of March, 2013.
BY THE COURT:

s/ Peter Oppeneer
PETER OPPENEER
Magistrate Judge

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