Thomas, Darreyll v. Reese, Michael et al

Filing 64

ORDER granting plaintiff's 59 motion for leave to proceed in forma pauperis on appeal, granting in part plaintiff's 59 motion for use of release account funds. Initial Partial Appeal Filing Fee of $96.18 due November 21, 2014. Signed by District Judge William M. Conley on 10/31/2014. (jef),(ps)

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

DARREYLL T. THOMAS,
Plaintiff,
v.

ORDER
13-cv-597-wmc
Appeal No. 14-3406

MICHAEL REESE, et al.,
Defendants,

On October 2, 2014, judgment was entered in favor of defendants dismissing this
case. Plaintiff Darreyll T. Thomas subsequently filed a motion to alter or amend the
judgment that was denied on October 15, 2014.

Plaintiff has now filed a notice of

appeal and he requests leave to proceed in forma pauperis. For reasons set forth briefly
below, the court will grant that motion.
As an initial matter, the federal in forma pauperis statutes require a district court to
certify whether an appeal is “not taken in good faith” or that the party is “not otherwise
entitled to proceed” as an indigent litigant. FED. R. APP. P. 24(a)(3). The court has
carefully reviewed all pertinent matters in this civil action. Based on this review and the
court’s clear recollection of the relevant proceedings, the court certifies that plaintiff has
not filed his appeal in bad faith for purposes of Fed. R. App. P. 24(a)(3).
Because plaintiff is incarcerated, his eligibility for leave to proceed in forma pauperis
is governed by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), which
bars an inmate from proceeding without prepayment of the filing fee if he has, on three

or more prior occasions, while incarcerated or detained brought an action or appeal in a
court of the United States that was dismissed as frivolous, malicious, or failure to state a
claim upon which relief may be granted unless the prisoner is under imminent danger of
serious physical injury. Plaintiff has no “strikes” or sanctions against him for engaging in
frivolous litigation while in prison and there does not appear to be any other impediment
to indigent status.

Therefore, after considering plaintiff’s motion and supporting

documentation, which includes a certified copy of his inmate trust fund account
statement, the court concludes that plaintiff is eligible to proceed as an indigent litigant.
Although plaintiff has been found eligible to proceed in forma pauperis, the PLRA
requires indigent inmates to pay the full amount of the docketing fee for his notice of
appeal ($505) in increments, starting with an initial partial payment, pursuant to the
formula found in 28 U.S.C. § 1915(b)(1)-(2). Based on plaintiff’s inmate trust fund
account statement, the court is able to make an initial partial filing fee payment of
$96.18, which will be due no later than November 21, 2014. Thereafter, plaintiff shall
pay the remainder of the $505 appellate docketing fee in monthly installments according
to 28 U.S.C. § 1915(b)(2).
Plaintiff has also filed a motion to use his inmate release account to pay the appeal
filing fee in this case. (Dkt. #59). The federal in forma pauperis statute 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), and the State of Wisconsin has conceded that the PLRA, 28 U.S.C. §
1915(b)(1), supersedes any restrictions state law imposes on the availability of funds in a
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prisoner’s release account. Therefore, if sufficient funds do not exist in plaintiff’s regular
account to pay his initial partial appeal payment, he should be allowed to use his release
account to pay some or all of the assessed amount. This does not mean that plaintiff is
free to ask prison officials to pay all of his filing fee from his release account. The only
amount plaintiff must pay at this time is the $96.18 initial partial appeal 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
ensure that they are aware they should send plaintiff’s initial partial appeal payment to
this court.
ORDER
IT IS ORDERED that:
1. The court CERTIFIES that plaintiff Darreyll T. Thomas’s notice of appeal
is not taken in bad faith for purposes of Fed. R. App. P. 24(a)(3).
2. Thomas’s motion for leave to proceed in forma pauperis (dkt. #59) is
GRANTED.
3. No later than November 21, 2014, Thomas shall submit a check or money
order made payable to the Clerk of Court in the amount of $96.18 as an
initial partial payment of the docketing fee for his appeal.
4. If Thomas fails to make his initial partial fee payment as directed by

November 21, 2014, the clerk’s office will notify the court of appeals so

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that it may take whatever action it deems appropriate with respect to this
appeal.  
5. Thomas’s motion to use release account funds (dkt. #59) to pay the initial
partial appeal payment he has been assessed in this case is GRANTED IN
PART as explained in this order.

Entered this 31st day of October, 2014.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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