Phillip Byrd v. Chris Buesgen, Gerald Van Ert, and Claire Hickey-Wilbur

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

PHILLIP BYRD, Plaintiff, v. ORDER CHRIS BUESGEN, GERALD VAN ERT, 23-cv-64-jdp and CLAIRE HICKEY-WILBUR, Defendants.

In my previous order I denied plaintiff Phillip Byrd’s motion to alter or amend the judgment, stated that his appeal was not in bad faith, and directed him to submit a copy of his six-month trust fund account statement so that the court may calculate an initial partial payment of the filing fee for his appeal as required under 28 U.S.C. § 1915(b)(1). Dkt. 161.

Byrd has responded with an account statement and he continues to argue that I incorrectly erred in concluding that his proposed findings of fact failed to comply with this court’s summary judgment procedures.

I will deny Byrd’s further motion for reconsideration because nothing in his motion persuades me that I incorrectly assessed his summary judgment materials. As for Byrd’s financial status, his trust fund account statement shows that he is unable to prepay the full appellate filing fee. Under § 1915(b)(1), Byrd must make an initial partial payment of the appellate fee, which the court has calculated as $49.26. I will give Byrd a short time to make this payment. If necessary, he may arrange with prison authorities to pay some or all of this amount from his release account. If he fails to make the required payment by the deadline set below, the appeal may be dismissed.

Byrd reiterates his desire to pay the remainder of his appellate filing fee from his release account. He may make that request to prison authorities. But as I explained in my previous order, other than for the initial partial payment of a filing or appellate fee, this court does not have the authority to tell state officials whether a prisoner should be able to withdraw money from a release account. See Carter v. Bennett, 399 F. Supp. 2d 936, 936–37 (W.D. Wis. 2005).

ORDER IT IS ORDERED that: 1. Plaintiff’s motion for in forma pauperis status on appeal, Dkt. 158, is GRANTED.

2. Plaintiff’s second motion to alter or amend the judgment, Dkt. 163, is DENIED.

3. Plaintiff may have until June 2, 2026, to submit a check or money order made payable to the clerk of court in the amount of $49.26 as an initial partial payment for his appeal. After that, plaintiff must pay the remainder of the $605 appellate fee in monthly installments under 28 U.S.C. § 1915(b)(2). If plaintiff does not have enough money to make the initial partial payment from his regular account, he should arrange with prison authorities to pay the remainder from his release account.

4. Plaintiff’s motion to pay the remainder of his fee from his release account, Dkt. 159, is DENIED.

Entered May 12, 2026.

BY THE COURT: /s/ ________________________________________ JAMES D. PETERSON District Judge