United States District Court, W.D. Wisconsin
RYAN K. ROZAK, Plaintiff,
RANDALL R. HEPP, GEORGE COOPER, MARC W. CLEMENTS, HOLLY MEIER, CHARLES LARSEN, CHRIS KRUEGER, JOHN MAGGIONCALDA, MICHAEL MCCORMICK, MARK SCHOMISCH, GREG PAHL, NURSE MOORE, JOE PRZYBYLINSKI, and CAPTAIN KUHOLK, Defendants. NORMAN STAPLETON, Plaintiff,
RANDALL R. HEPP and EDWARD F. WALL, Defendants.
D. PETERSON District Judge.
Ryan Rozak and Norman Stapleton are both litigating cases
about the unsafe levels of lead and copper in the water
supply of the Fox Lake Correctional Institution. They are
currently represented by the same volunteer attorneys, who
have filed a motion in both cases to appoint and compensate
two impartial experts under Federal Rule of Evidence 706: (1)
a medical professional or toxicologist; and (2) an engineer
specializing in water quality and treatment. Plaintiffs ask
that the state pay the experts up front, with those costs
charged along with the other costs at the end of the
with plaintiffs that this case involves complex, specialized
issues regarding both the quality of the water and the
effects that water had on them. I also reject defendants'
argument that plaintiffs should rely on the consultants
already hired by the Department of Administration to
remediate the problem. There is good reason to believe that
those consultants cannot serve as impartial witnesses, given
their previous work on the FLCI water supply. So I will grant
plaintiffs' motion to appoint experts in both cases. At
this point, I will assume that the same experts will be able
to serve in both cases.
next question is how to locate these experts. As envisioned
by Rule 706(a), I will ask the parties to submit nominations
after conferring with each other. Plaintiffs state that they
would prefer local experts given their familiarity with
Wisconsin water regulations, but at this point, it is up to
them and defendants to find experts they deem acceptable. I
will give the parties a deadline to inform the court about
their progress in locating experts and the projected cost of
leaves the question of compensation. As a starting point,
plaintiffs and defendants should split the cost of these
experts 50/50. I agree with defendants that plaintiffs'
share can come from the court's pro bono reimbursement
fund, to the extent that plaintiff's share is within the
fund's disbursement limits. So when prepayment time
comes, plaintiffs' counsel should seek disbursement of
funds from the pro bono fund for that purpose. The court will
not require plaintiffs' volunteer counsel to go out of
pocket for the cost of the experts. So if the cost of
plaintiffs' share exceeds the amount available from the
pro bono fund, the court will expect the state to pay the
rest, within reason. Plaintiffs should be forewarned: this is
not a blank check. The court expects that the cost of the
court-appointed experts will be reasonable, and the expenses
of the engagement will be pre-approved by the court.
Release account funds
Rozak has filed a motion asking me to issue an order
directing Fox Lake officials to allow him to use funds from
his release account to pay the remainder of his filing fee
for that action. Dkt. 61 in the '134 case. Rozak says
that prison officials will authorize the use of his release
account funds if the court orders the funds to be released.
But that still leaves the question whether this court has the
authority to order the DOC to release the funds.
up to prison officials to decide how to apply the
release-account regulations; this federal court generally
cannot tell state officials how to apply state law. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89 (1984). There is no federal law permitting this court to
require state officials to submit the lump-sum remainder of a
filing fee by accessing a prisoner's release account
funds. It is only when a prisoner's general account has
insufficient funds to pay an initial partial filing fee
payment that the Prisoner Litigation Reform Act permits this
court to order an institution to access a prisoner's
release account funds to satisfy that payment. See,
e.g., Mosby v. Wommack, No. 08-cv-677, 2009 WL
2488011 (W.D. Wis. Aug. 12, 2009) (“[W]ith the
exception of initial partial payments, [federal district
courts] do not have the authority to tell state officials
whether and to what extent a prisoner should be able to
withdraw money from his release account.”); see
also Artis v. Meisner, No. 12-cv-589, 2015 WL 5749785,
at *5-6 (W.D. Wis. Sept. 30, 2015) (“Absent some
authority requiring the prison to disburse
[petitioner's] release account funds, the court declines
to interfere in the administration of Wisconsin state prisons
. . . .” (emphasis in original)). Therefore, I will
deny Rozak's motion for the use of his release account
Plaintiffs Ryan Rozak and Norman Stapleton's motion to
appoint experts in the above-captioned cases, Dkt. 61 in case
no. 15-cv-134-jdp, is GRANTED.
parties may have until July 10, 2017 to update the court on
their progress in locating a medical or toxicology expert and
a water expert, and the projected cost of the appointments.
Plaintiff Rozak's motion for the use of release account
funds, Dkt. 63 ...