Davis, Willie v. Jakusz et al

Filing 4

ORDER on ifp request: Plaintiff Willie Davis assessed an initial partial filing fee of $12.58 due 3/1/2018. Signed by Magistrate Judge Peter A. Oppeneer on 2/9/2018. (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
WILLIE DAVIS,
Plaintiff,

ORDER

v.
Case No. 18-cv-77-wmc
SGT. JAKUSZ, TIM ZIEGLER
and MICHAEL MEISNER,
Defendants.

Plaintiff Willie Davis, an inmate 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 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 $12.58. For this case to proceed, plaintiff
must submit this amount on or before March 1, 2018.
In plaintiff’s motion for leave to proceed without prepaying the fee, plaintiff requests
an order to use his release account funds to pay an initial partial filing fee in the amount of
$226.75. I will grant in part plaintiff’s motion.
Pursuant to 28 U.S.C. § 1915(b)(1), 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 the $12.58 plaintiff has been assessed as an initial
partial payment, he can use his release account to pay the initial partial payment balance.
However, with the exception of initial partial payment assessed to an inmate, this
court does not have the authority to tell state officials whether, and to what extent, a prisoner
should be able to withdraw money from a release account. Therefore, I will deny plaintiff’s
request to use his release account funds to pay $226.75 toward the $350.00 fee for filing this
case.

ORDER
IT IS ORDERED that,
1.

Plaintiff Willie Davis is assessed $12.58 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 $12.58 or advise the court in writing why plaintiff is not
able to submit the assessed amount on or before March 1, 2018.
2.

Plaintiff’s motion to use release account funds to pay the $12.58 initial partial

payment is GRANTED. If sufficient funds do not exist in plaintiff’s regular account to pay the
$12.58 assessed as an initial partial payment, he can use his release account to pay the initial
partial payment balance.
3.

Plaintiff’s motion to use additional release account funds beyond the assessed

$12.58 initial partial payment is DENIED.
3.

If, by March 1, 2018, 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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3.

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 9th day of February, 2018.
BY THE COURT:

/s/
PETER OPPENEER
Magistrate Judge

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