Belthem, Vincent v. Schwebke, Nikki et al

Filing 6

ORDER granting in part and denying in part 5 plaintiff's request for an order directing use of release account to pay the $6.35 filing fee. Plaintiff may have an enlargement of time, to October 28, 2015, to pay his $6.35 initial partial payment. Signed by Magistrate Judge Peter A. Oppeneer on 10/5/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
VINCENT JON BELTHEM,
Plaintiff,

ORDER

v.
Case No. 15-cv-599-jdp
NIKKI L. SCHWEBKE, et al.,
Defendants.

On September 17, 2015, this court entered an order assessing plaintiff Vincent Jon
Belthem an initial partial payment of the filing fee for this case, which is due on October 7,
2015. Rather than pay the initial partial filing fee, plaintiff has filed a letter requesting that
his release account funds be used to pay his initial partial filing fee. (Dkt. #5).
Plaintiff believes that he cannot access his release account funds to pay his initial
partial filing fee. In fact, the September 17, 2015 order says, “If plaintiff does not have
enough money to make the $6.35 initial partial payment from his regular account, plaintiff
should arrange with prison authorities to pay the remainder from his release account.”
However, if plaintiff is requesting that prison officials bypass the funds in his regular
account to pay his entire $6.35 initial partial payment from his release account, his motion
will be denied. Nothing in the 1996 Prison Litigation Reform Act requires a warden to agree
to bypass a prisoner’s regular account in favor of a prisoner’s release account to pay a filing
fee simply because the prisoner doesn’t want to use his regular account’s funds to pay the
assessed initial partial filing fee.

The only money that the state need take from a state

prisoner’s release account is money that fits within the formula specified in 28 U.S.C.

§ 1915. Accordingly, if plaintiff has any money in his regular account, prison officials may
use that money first before using money in plaintiff’s release account to pay the initial partial
payment.

ORDER
IT IS ORDERED that:
1.

Plaintiff Vincent Jon Belthem’s request for an order directing prison officials to

pay the initial partial payment in this case from his release account (dkt. #5), is
GRANTED in part and DENIED in part. 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.
2.

Plaintiff may have an enlargement of time, to October 28, 2015, to pay his

$6.35 initial partial payment. If, by October 28, 2015, plaintiff fails to make the
initial partial payment or show cause for failure to do so, I will assume that he wishes
to withdraw this action voluntarily and the case will be closed without prejudice to
plaintiff’s refiling it at a later date.

Entered this 5th day of October, 2015.
BY THE COURT:

/s/
PETER OPPENEER
Magistrate Judge

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