United States District Court, E.D. Wisconsin
AND ORDER GRANTING PLAINTIFF’S MOTION TO STAY
PLAINTIFF’S REPLY TO THE DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 39), DENYING PLAINTIFF’S
MOTION FOR USE OF RELEASE ACCOUNT (DKT. NO. 40), AND
DIRECTING PLAINTIFF TO FILE A RESPONSE TO THE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON OR BEFORE
AUGUST 31, 2016
PAMELA PEPPER United States District Judge
plaintiff, Daniel Anthony Peace, is proceeding pro
se on Eighth Amendment medical care claims against the
defendants. On June 15, 2016, the plaintiff filed a motion
for partial summary judgment on his failure to treat and
delay in treatment claims (Dkt. No. 28), accompanied by a
brief (Dkt. No. 29); proposed findings of fact (Dkt. No. 30);
and his declaration (Dkt. No. 31). On June 27, 2016, the
defendants responded to that motion, Dkt. No. 35, and filed
their own motion for summary judgment, Dkt. No. 32. The
plaintiff then filed a motion asking the court to stay the
deadline by which he had to file his response to the
defendants’ motion, Dkt. No. 39, as well as a motion
for the use of his release account, Dkt. No. 40. These last
two motions are before the court.
court received the plaintiff’s motion for order to stay
summary judgment response on July 5, 2016. Dkt. No. 39. The
motion indicates that after he received the defendants’
summary judgment pleadings, the plaintiff requested a file
review of his institution medical file. The institution put
him on a thirty-day waiting list. Id. at 2. The
plaintiff asserts that he cannot properly respond to the
defendants’ motion for summary judgment until he can
review and obtain copies of the documents in his medical
file. Id. He also advises the court that he needs to
file a motion for use of release account to pay for the
copies and supplies he needs to respond to the
defendants’ motion for summary judgment. Id.
court will give the plaintiff additional time to review his
medical records and prepare his response to the
defendants’ motion for summary judgment. The court is
not going to “stay” the proceedings; that is not
necessary. Rather, the court construe the plaintiff’s
motion as a motion for an extension of time to file the
reply, and will grant him that extension. The court will
extend the deadline by which the plaintiff must file his
response to the defendants’ motion for summary judgment
to the end of the day on Wednesday, August 31, 2016.
20, 2016, two weeks after the court received the motion to
stay, the court received the plaintiff’s motion for
order authorizing use of release account. Dkt. No. 40. In
that motion, the plaintiff indicates that he received his
pass to review his medical file on July 13, 2016, but that he
needs $2.10 to copy fourteen pages of the medical records.
Id. at 1. The plaintiff also asks the court to
authorize him to take another $1.68 from his release account
to pay for supplies, including two pens, one pad of paper,
one correction tape, one pencil eraser and one pencil.
Id. at 2. The plaintiff provides a copy of his
prisoner trust account statement confirming that he has
sufficient funds in his release account to cover these costs.
Dkt. No. 40-1. (That statement shows that at the end of June,
the plaintiff had $0.18 in his regular inmate account, $79.89
in his release account, and $157.69 in his work release
it is true that this court has the authority to order
disbursements from a prisoner's release account for
payment of an initial partial filing fee
(“IPFF”), see, e.g., Doty
v. Doyle, 182 F.Supp.2d 750, 751 (E.D. Wis. 2002)
(noting that “both the Wisconsin Prison Litigation
Reform Act. . . and the federal Prison Litigation Reform Act
[(“PLRA”)] . . . authorize the courts to order
that . . . a prisoner's release account be made available
[to pay an IPFF]”), this court lacks the
authority-statutory or otherwise-to order that a prisoner may
tap into his release account to pay current (or future)
in this district have noted that “[n]othing in the
[PLRA] can be interpreted as congressional intent that
prisoners deplete savings or release account balances in
order to pay off their filing fee debts.” Wilson v.
Anderson, No. 14-CV-0798, 2014 WL 3671878, at *3 (E.D.
Wis. July 23, 2014) (declining to order that a prisoner's
full filing fee be paid from his release account,
“[g]iven the [DOC's] rationale for segregating
funds into a release account” and the absence of any
statutory authority compelling the court to do so) (citations
omitted). That is even more true here, and the court will
apply the reasoning in Wilson to encompass requests
by prisoners to use their release accounts to cover
there is a textual difference between the Wisconsin PLRA,
which addresses procedures to be followed when a prisoner
wishes to bring a civil action without prepayment of
“fees or costs” generally, see Wis.
Stat. § 814.29, and the federal PLRA, which refers
specifically to procedures to be followed when a prisoner
wishes to bring a civil action “without prepayment of
fees or security therefor[.]” 28 U.S.C. §
1915(a)(2); see also Artis v. Meisner, No.
12-cv-589-wmc, 2015 WL 5749785, at *5-7 (W.D. Wis. Sept. 30,
2015). “The federal PLRA says nothing about
costs.” Artis, 2015 WL 5749785, at *6.
prisoners the use of their release accounts to fund
litigation costs also is prudent given that those accounts
are “restricted account[s] maintained by the [DOC] to
be used upon the prisoner's release from custody.”
Id. Permitting a prisoner to invade that account for
litigation costs could reduce that prisoner's likelihood
of success post-incarceration, see Wis. Adm.Code.
§ DOC 309.466 (stating that disbursements from a
prisoner's release account are authorized “for
purposes that will aid the inmate's reintegration into
the community”), especially if the prisoner is a
frequent, or prolific, litigant. As the Seventh Circuit has
instructed, “like any other civil litigant, [a
prisoner] must decide which of [his] legal actions is
important enough to fund,” Lindell v.
352 F.3d 1107, 1111 (7th Cir. 2003); thus, if a prisoner
concludes that “the limitations on his funds prevent
him from prosecuting [a] case with the full vigor he wishes
to prosecute it, he is free to choose to dismiss it
voluntarily and bring it at a later date.” Williams
v. Berge, No. 02-CV-10, 2002 WL 32350026, at *8 (W.D.
Wis. Apr. 30, 2002). He is not free, however, to tap into his
release account to cover those legal costs.
being said, “[i]t is indisputable that indigent inmates
must be provided at state expense” with the basic
material necessary to draft legal documents and with stamps
to mail them. Bounds v. Smith, 430 U.S. 817, 824, 97
S.Ct. 1491, 1496, 52 L.Ed.2d 72 (1977). The materials the
plaintiff requests seem to fall into this category of
supplies, which the state must provide. The court anticipates
that the defendants will ensure that the plaintiff has the
materials he needs to respond to their motion for summary
judgment so the court can consider it on its merits.
court GRANTS the plaintiff’s motion for an extension of
time to file his reply to the defendants’ summary
judgment motion. Dkt. No. 39. The court DENIES the
plaintiff’s motion for order authorizing use of release
account for legal supplies. Dkt. No. 40. The court ORDERS the
plaintiff to file a response to the defendants’ motion
for summary judgment by the end of the day on Wednesday,
August 31, 2016. If the ...