Krueger, Macaulay v. Dittman, Michael

Filing 4

ORDER denying petitioner's 2 Motion for Use of Release Account Funds. Petitioner has until February 7, 2014, in which to submit either the $5 filing fee or an application for leave to proceed in forma pauperis Signed by Magistrate Judge Peter A. Oppeneer on 1/10/2014. (elc),(ps)

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

MACAULAY T. KRUEGER,
Petitioner,

ORDER

v.
13-cv-879-wmc
MICHAEL DITTMAN, Warden,
Redgranite Correctional Institution,
Respondent.

Macaulay Krueger, an inmate at the Redgranite Correctional Institution, has filed an
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has not paid the $5
filing fee. He has filed a motion requesting an order directing officials at the institution to pay
the filing fee from his release account funds and that he be allowed to use his release account
funds to pay for copying and postage in this case.
The use of release account funds is governed by state law. See Wis. Admin. Code § DOC
309.466. According to § 309.466(2), “[p]rior to release, the department may authorize the
disbursement of release account funds for purposes that will aid the inmate's reintegration into
the community or that will reimburse the department for incarceration costs, including legal
loans and restitution.” The only exception is that release funds can used to pay an initial partial
filing fee under the 1996 Prison Litigation Reform Act. Because 28 U.S.C. § 2254 cases are not
subject to the 1996 Prison Litigation Reform Act and there is no other federal law that would
require state officials to give petitioner money from his release account to prepay a habeas filing
fee or the costs of litigating this case, petitioner’s request to use release account funds will be
denied.

Accordingly, to proceed on his habeas petition, petitioner must either pay the $5 filing
fee or seek leave to proceed in forma pauperis. If he seeks indigent status, he must support his
request with a trust account fund statement covering the six-month period preceding the filing
of this lawsuit. In determining whether to allow a habeas petitioner to proceed in forma pauperis,
this court uses the following formula. First, the court determines petitioner's average monthly
deposits and his average monthly balances for the six-month period mentioned above. If 20%
of the greater of these two figures is $5 or more, the petitioner is not eligible for indigent status
and will have to prepay all of the $5 filing fee. If 20% of the greater of these two figures is less
than $5, he will be required to prepay whatever portion less than $5 has been calculated.
Knowing this formula, petitioner should be able to determine whether he will qualify to proceed
in forma pauperis or whether he should simply pay the filing fee.

ORDER
IT IS ORDERED that petitioner Macaulay Krueger's motion requesting an order
directing payment of his filing fee from his release account funds is DENIED. Petitioner has
until February 7, 2014, in which to submit either the $5 filing fee or an application for leave to
proceed in forma pauperis. If petitioner does not have sufficient funds in his regular account to
pay the $5 filing fee and does not think he will qualify for pauper status, he may request an
enlargement of time to make the payment.
Entered this 10th day of January , 2014.
BY THE COURT:
/s/
PETER OPPENEER
Magistrate Judge
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