Wheeler, Tingia v. Schwoechert, Jim et al

Filing 5

ORDER on ifp request: Plaintiff Tingia D. Wheeler assessed an initial partial filing fee of $218.50 due 10/21/2016. Signed by Magistrate Judge Peter A. Oppeneer on 9/29/2016. (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TINGIA D. WHEELER,
ORDER

Plaintiff,
v.

Case No. 16-cv-657-wmc

JIM SCHWOECHERT, et al.,
Defendants.
Plaintiff Tingia D. Wheeler, a prisoner in the custody of the Wisconsin Department
of Corrections, has submitted a proposed civil action under 42 U.S.C. § 1983 and requests
leave to proceed without prepaying the filing fee. (Dkt. #2). After considering the motion
and supporting documentation, the court concludes that plaintiff qualifies for indigent status.
Even when an inmate 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 $218.50. For this case to proceed, plaintiff
must submit this amount on or before October 21, 2016.
Plaintiff also filed a motion to pay the full filing fee from his release savings account.
(Dkt. #4). 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.

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ORDER
IT IS ORDERED that,
1.

Plaintiff Tingia D. Wheeler is assessed $218.50 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 $218.50 or advise the court in writing why he is not able
to submit the assessed amount on or before October 21, 2016.
2.

Plaintiff’s request for use of his release account funds to pay the entire filing

fee in this case (Dkt. # 4) is DENIED. However, if plaintiff does not have enough money to
make the initial partial payment from his regular account, plaintiff should arrange with
authorities to pay the remainder from his release account.
3.

If, by October 21, 2016, 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.
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 29th day of September, 2016.
BY THE COURT:
/s/
PETER OPPENEER
Magistrate Judge

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