Givens, Clarence v. Luedtke, Kenneth et al
Filing
5
ORDER denying plaintiff's 3 motion to use his release account. Initial partial filing fee of $ 261.50 assessed. (Initial partial filing fee due 1/3/2014.) Signed by Magistrate Judge Peter A. Oppeneer on 12/13/2013. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CLARENCE GIVENS,
Plaintiff,
ORDER
v.
Case No. 13-cv-848-wmc
KENNETH LUEDTKE, et al.,
Defendants.
Plaintiff Clarence Givens, a prisoner incarcerated at the Stanley Correctional
Institution in Stanley, Wisconsin, has submitted a proposed civil action under 42 U.S.C.
§ 1983. With the exception of habeas corpus proceedings, the fee for civil actions filed after
May 1, 2013 is $400.00 unless a litigant qualifies as indigent under 28 U.S.C. § 1915, in
which case the fee is $350.00. Plaintiff has filed a certified copy of his inmate trust fund
account statement in support of his motion for leave to proceed without prepaying the fee.
(Dkt. #2,4).
After considering the motion and supporting documentation, the court
concludes that plaintiff qualifies for indigent status.
Even when a prisoner litigant qualifies for indigent status, he must pay a portion of
the fee returned by the formula set forth in 28 U.S.C. § 1915(b)(1).
According to this
formula, a prisoner litigant 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 made to his account is $20.29, but
20% of the average monthly balance in his account is $261.50. Because the greater of the
two amounts is 20% of the average monthly balance, or $261.50, that is the amount plaintiff
1
will be assessed as an initial partial payment of the filing fee. For this case to proceed,
plaintiff must submit this amount on or before January 3, 2014.
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 $261.50 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.
Plaintiff has filed a motion to use his inmate release account to pay the entire filing
fee and the costs associated with litigating this action. (Dkt. #3). 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 prisoner’s release account. Therefore, if sufficient funds do not exist
in plaintiff’s regular account to pay his initial partial 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 or the
costs associated with litigating this case. Plaintiff’s motion will be denied.
2
ORDER
IT IS ORDERED that,
1.
Plaintiff Clarence Givens is assessed $261.50 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 $261.50 on or before January 3, 2014.
2.
If, by January 3, 2014, 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
and the case will be closed without prejudice to plaintiff's filing his case at a later date.
3.
Plaintiff’s motion to use his release account to pay the entire filing fee and the
costs associated with litigating this action, dkt. #3, is DENIED. The only amount plaintiff
must pay at this time is the $261.50 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.
4.
No further action will be taken in this case until the clerk’s office receives
plaintiff’s initial partial filing fee as directed above and the court has screened the complaint
as required by the PLRA, 28 U.S.C. § 1915A. Once the screening process is complete, a
separate order will issue.
Entered this 13th day of December, 2013.
BY THE COURT:
/s/
PETER OPPENEER
Magistrate Judge
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?