Porter, Brandon et al v. Dittman, M. et al

Filing 4

ORDER assessing an initial partial filing fee of $ 10.62. ( Initial partial filing fee due 3/27/2018.) Plaintiff's 3 Motion for Use of Release Account Funds to pay the initial partial payment is granted. Signed by Magistrate Judge Peter A. Oppeneer on 3/5/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
BRANDON L. PORTER,
Plaintiff,

ORDER

v.
Case No. 18-cv-138-wmc
WARDEN MR. M. DITTMAN,
SEC. DIR. MR. WEBER, CAPT. LUCAS WOGERNESE,
LT. MR. BEUTTNER, SGT. MS. CARL,
MS. LINDSEY WALKER, and MS. MARY LEISER,
Defendants.

Plaintiff Brandon L. Porter, 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 his request for leave to
proceed without prepaying the fee. After considering the 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 $10.62 of the $350.00 filing fee. For this
case to proceed, plaintiff must submit this amount on or before March 27, 2018.
Plaintiff has also filed a motion to use his release account funds to pay the $400.00
filing fee. Dkt. #3. I will grant in part and deny 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 $10.62 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 the full $350.00 fee for filing this case.

ORDER
IT IS ORDERED that,
1.

Plaintiff Brandon L. Porter is assessed $10.62 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 $10.62 or advise the
court in writing why plaintiff is not able to submit the assessed amount on or
before March 27, 2018.

2.

Plaintiff’s motion to use his release account funds to pay the full $350.00 filing
fee is DENIED. Plaintiff’s motion to use his release account funds to pay the
$10.62 assessed as an initial partial payment is GRANTED.

3.

If, by March 27, 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.

2

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 5th day of March, 2018.
BY THE COURT:

/s/
PETER OPPENEER
Magistrate Judge

3