Thomas, Darreyll v. Mashak, Meredith et al

Filing 6

ORDER on ifp request: Initial partial filing fee of $ 134.03 assessed. Initial partial filing fee due 8/4/2016. Plaintiff's motion for use of release account funds to pay the intitial partial filing fee is granted in part. Signed by Magistrate Judge Peter A. Oppeneer on 7/13/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DARREYLL T. THOMAS,
Plaintiff,

ORDER

v.
Case No. 16-cv-496-bbc
MEREDITH MASHAK, 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 a trust fund account statement in support of the motion for leave to
proceed without prepaying the fee.

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 litigant must pay a
portion of the fee returned by the formula set forth in 28 U.S.C. § 1915(b)(1).

Using

information for the relevant time period from plaintiff’s trust fund account statement, I
conclude plaintiff’s initial partial filing fee to be $134.03. For this case to proceed, plaintiff
must submit this amount on or before August 4, 2016.
With the complaint, plaintiff also filed a motion to use release account funds to pay
the initial partial filing fee for filing this case. (Dkt. #4). 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 $134.03 initial partial payment. If plaintiff
does not have enough money to make the initial partial payment from plaintiff’s regular
account, plaintiff should arrange with authorities to pay the remainder from plaintiff’s release
account. 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 $134.03 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 $134.03 or advise the court in writing why
plaintiff is not able to submit the assessed amount on or before August 4, 2016.
2.

Plaintiff’s motion for use of release account funds to pay the initial partial

filing fee in this case (Dkt. #4) is GRANTED to the extent provided above.
3.

If, by August 4, 2016, 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 filing this case at a later date.

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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 Prisoner Litigation Reform Act, 28 U.S.C. § 1915A. Once the screening
process is complete, a separate order will issue.

Entered this 13th day of July, 2016
BY THE COURT:

/s/
PETER OPPENEER
Magistrate Judge

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