Fields, Mafayette v. Achtenberg et al
ORDER on ifp request: Initial partial filing fee of $ 157.28 assessed. (Initial partial filing fee due 12/31/2014.) Plaintiff's 4 motion for use of release account funds to pay the entire filing fee is DENIED. Signed by Magistrate Judge Peter A. Oppeneer on 12/15/2014. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
Case No. 14-cv-855-jdp
CAPTAIN ACHTENBERG, SCHUMANN,
CAPTAIN CANNENBURG, UNIT MANAGER
TYNES, COII CORDERO, CO DEMPSEY,
TIM DOUMA AND COII HOLSCLAW,
Plaintiff Mafayette Fields, 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 his inmate trust fund account statement in support of his motion for
leave to proceed without prepaying the fee. (Dkt. #2). 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 balance is $157.28, and 20% of the average
monthly deposits made to his account is $2.28. Because the greater of the two amounts is
20% of the average monthly balance, or $157.28, 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 December 31, 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 $157.28 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 also filed a motion (dkt. #4), which the court construes as a request to
use his release account funds to pay the entire fee for filing this case. Plaintiff 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.
IT IS ORDERED that,
Plaintiff Mafayette Fields is assessed $157.28 as an initial partial payment of
the $350.00 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 $157.28 or advise the court in writing why he is not able
to submit the assessed amount on or before December 31, 2014.
Plaintiff’s request for use of his release account funds to pay the entire filing fee
in this case (Dkt. # 4) is DENIED.
If, by December 31, 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.
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 15th day of December, 2014.
BY THE COURT:
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?