United States District Court, E.D. Wisconsin
GARRY A. BORZYCH, Plaintiff,
JON LITSCHER, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO CHANGE VENUE
(DKT. NO. 4), AND DENYING PLAINTIFF'S MOTION TO USE FUNDS
FROM RELEASE ACCOUNT TO PAY CIVIL FILING FEE (DKT. NO
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
plaintiff, Garry A. Borzych, is a state prisoner representing
himself. He is incarcerated at Waupun Correctional
Institution, in Fond du Lac County. He filed a complaint
under 42 U.S.C. §1983, alleging that his civil rights
were violated. Dkt. No. 1. He also filed a motion to change
venue, dkt. no. 4, and a motion to use funds from release
account to pay civil filing fee, dkt. no. 7.
the plaintiff asks this court to change the venue of this
case to Milwaukee, because the librarian at the prison
incorrectly filed his complaint in the Green Bay Division.
Dkt. No. 4. The plaintiff asserts that it is critical that
his case be filed in Milwaukee because he wants to file a
motion asking the court to remove a “strike” he
incurred years ago. Id. at 2. He believes that venue
is incorrect in the Green Bay Division and does not believe
that court has jurisdiction to hear his claims.
plaintiff properly submitted his complaint for electronic
filing with the United States District Court for the Eastern
District of Wisconsin, and the prison librarian properly
electronically filed the complaint. The Green Bay Division is
not a separate federal court; the Eastern District of
Wisconsin is one court that is divided into the Green Bay
Division and the Milwaukee Division. In any event, even
though the Green Bay Division processed the plaintiff's
electronically filed complaint and docketed it, the case was
assigned to a judge in the Milwaukee Division. The court will
deny the plaintiff's motion to change venue.
the plaintiff filed a motion asking the court for an order
allowing him to use funds from his release account to pay the
$400.00 civil filing fee. Dkt. No. 7. A release account is a
restricted account maintained by the Wisconsin Department of
Corrections, to be used when the prisoner is released from
custody after completing his sentence. Wis. Adm. Code
§DOC 309.466. While the court may order disbursement of
funds from the release account for payment of the initial
partial filing fee when a prisoner files a petition for leave
to proceed without prepayment of the filing fee, the Prison
Litigation Reform Act does not require the court to invade
that account for payment of the balance. See 28
U.S.C. §1915(b)(2) (The balance of payments, after the
initial payment, is to equal “twenty percent of the
preceding month's income credited to the prisoner's
account.”). “Nothing in this language 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, 2014 WL
3671878, at *3 (E.D. Wis. July 23, 2014) (quoting Carter
v. Bennett, 399 F.Supp.2d 936, 937 (W.D. Wis. 2005);
see also Doty v. Doyle, 182 F.Supp.2d 750 (E.D. Wis.
2002). The court will deny the plaintiff's motion for an
order allowing him to pay the $400.00 full filing fee from
his release account.
order to proceed, the plaintiff either must pay the $400.00
filing fee or file a motion for leave to proceed without
prepayment of the filing fee (in forma
pauperis). Under the Prison Litigation Reform Act
(PLRA), a prisoner may not bring a civil action or appeal a
civil judgment in forma pauperis
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). The plaintiff acknowledges that he
currently has three strikes, though he indicates he would
like to file a motion challenging one of those strikes. He
had not indicated that he believes he is in imminent danger
of serious physical injury, which is the exception to §
court will set a deadline for the plaintiff to either (a) pay
the $400.00 full filing fee or (b) file a motion for leave to
proceed without prepayment of the filing fee on the
court's form, along with a certified copy of his prison
trust account statement for the six months prior him filing
his complaint. If the plaintiff files a motion for leave to
proceed without prepayment of the filing fee, he must also
file a motion challenging his prior strike and/or indicating
that his complaint includes allegations of imminent danger.
If the plaintiff takes no action, the court may dismiss this
case for failure to pay the filing fee.
court DENIES the plaintiffs' motion to change venue. Dkt.
court also DENIES the plaintiffs motion to use funds from
release account to pay the civil filing fee for this case.
Dkt. No. 7.
court ORDERS the plaintiff to do one of the following by
Monday, July 17, 2017: (1) forward to the clerk of this court
the sum of $400.00 as the full filing fee in this case; or
(2) file a motion for leave to proceed without prepayment of
the filing fee using the court's form, along with a
certified copy of his prison trust account for the six months
before he filed his complaint and a motion challenging his
prior strike and/or indicating that his complaint ...