Timothy L. Wihlen v. Warden Messenger

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION TIMOTHY L. WIHLEN, ) ) Plaintiff, ) v. ) Civil Action No. 5:26-00007 ) WARDEN MESSENGER, ) ) Defendant. ) O R D E R Pending before the Court is Plaintiff’s “Motion to Stay Fee Waiver Order Until Service of Respondent” (Document No. 5), filed on January 20, 2026.

On January 6, 2025, Plaintiff, acting pro se, filed his Application to Proceed Without Prepayment of Fees and Costs and Complaint seeking relief for alleged violations of his constitutional rights pursuant to Bivens v. Six Unknown Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 24 L.Ed.2d 619 (1971). (Document Nos. 1 - 2). By Order entered on January 7, 2026, the undersigned determined that Plaintiff’s Application to Proceed Without Prepayment of Fees and Costs was deficient because the Certificate portion at the end of the Application was not completed by a prison official. (Document No. 4.) The undersigned directed Plaintiff to either pay the filing and administrative fee totaling $405 or file a properly completed Application to Proceed Without Prepayment of Fees and Costs by February 9, 2026. (Id.) In the above Motion, Plaintiff indicates that the Prison Trust Fund Officer refuses to complete the Certificate portion at the end of his Application to Proceed Without Prepayment of Fees and Costs. (Document No. 5.) Thus, Plaintiff requests that Court “stay the fee waiver order until service of Respondent.” (Id.) In support, Plaintiff claims that “[o]nce the Respondent has waived or accepted service, the Court possesses the jurisdiction to order Petitioner’s custodian to furnish the certificate and records required in order to make the fee waiver determination.” (Id.) Based on the foregoing, it is hereby ORDERED that a form Application to Proceed Without Prepayment of Fees and Costs be mailed to the officer at FCI Beckley having responsibility for administering prisoner accounts. The officer at FCI Beckley having responsibility for administering prisoner accounts is ORDERED to complete the Certificate portion at the end of Plaintiff's Application and provide such to Plaintiff by February 6, 2026.

Plaintiff is DIRECTED to complete the remaining sections of the Application and return such to this Court on or before February 20, 2026. It is further ORDERED that Plaintiffs “Motion to Stay Fee Waiver Order Until Service of Respondent” (Document No. 5) is DENIED.

The Clerk is requested to send a copy of this Order to Plaintiff, the officer at FCI Beckley having responsibility for administering prisoner accounts, the Warden of FCI Beckley, and the United States Attorney’s Office for the Southern District of West Virginia.

ENTER: January 21, 2026.

Dobe bo Lh aN ws United States Magistrate Judge