Thomas, Darreyll v. Kaplan, Roman et al
Filing
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ORDER on ifp request: Initial partial filing fee of $ 94.64 assessed. ( Initial partial filing fee due 10/29/2014.) Plaintiff's 9 motion to use release account funds to pay the initial partial payment he has been assessed in this case is GRANTED IN PART. Signed by Magistrate Judge Peter A. Oppeneer on 10/10/2014. (nln),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DARREYLL T. THOMAS,
Plaintiff,
ORDER
v.
Case No. 14-cv-675-wmc
ROMAN KAPLAN et al.,
Defendants.
Plaintiff Darreyll T. Thomas, a prisoner in the custody of the Wisconsin Department
of Corrections, has submitted a proposed civil action under 42 U.S.C. § 1983. Plaintiff has
filed a certified copy of an inmate trust fund account statement in support of the motion for
leave to proceed without prepaying the fee. (Dkt. #9). 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, the prisoner litigant 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 the prisoner’s account in the sixmonth period immediately preceding the filing of the complaint.
In this case, 20% of the average monthly balance is $94.64, and 20% of the average
monthly deposits made to plaintiff’s account is $31.61.
Because the greater of the two
amounts is 20% of the average monthly balance, or $94.64, that is the amount plaintiff 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 October 29, 2014.
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In addition, plaintiff has filed a motion for the use of his release account funds to pay
the filing fee for this case.
(Dkt. #9).
Plaintiff’s motion will be granted in part.
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). 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.
The only amount plaintiff must pay at this time is the $94.64 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 ensure
that they are aware they should send plaintiff’s initial partial payment to this court.
ORDER
IT IS ORDERED that,
1.
Plaintiff Darreyll T. Thomas is assessed $94.64 as an initial partial payment of
the $350.00 fee for filing this case. Plaintiff is to submit a check or money order made
payable to the clerk of court in the amount of $94.64 or advise the court in writing why
plaintiff is not able to submit the assessed amount on or before October 29, 2014.
2.
If, by October 29, 2014, plaintiff fails to make the initial partial payment or
show cause for failure to do so, plaintiff will be held to have withdrawn this action voluntarily
and the case will be closed without prejudice to plaintiff's filing this case at a later date.
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3.
Plaintiff’s motion to use release account funds (dkt. #9) to pay the initial
partial payment he has been assessed in this case is GRANTED IN PART as explained in this
order.
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 10th day of October, 2014.
BY THE COURT:
/s/
PETER OPPENEER
Magistrate Judge
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