United States District Court, E.D. Wisconsin
JUMAR K. JONES, Plaintiff,
JON LITSCHER, SCOTT ECKSTEIN, MICHELLE HAESE, LT. LENZ, and STEVE SCHUELER, Defendants.
DECISION AND ORDER DENYING PLAINTIFF'S MOTION TO
USE FUNDS FROM HIS RELEASE ACCOUNT TO PAY THE FILING FEE
BALANCE (DKT. NO. 18), SCREENING PLAINTIFF'S SECOND
AMENDED COMPLAINT (DKT. NO. 17), AND DISMISSING THE
PEPPER United States District Judge
19, 2017, the plaintiff-a state prisoner representing
himself- filed a complaint under 42 U.S.C. §1983. Dkt.
No. 1. He later filed an amended complaint, dkt. no. 13,
which the court screened. After identifying problems with the
amended complaint, the court gave the plaintiff the
opportunity to file a second amended complaint. Dkt. No. 15.
The plaintiff took advantage of that opportunity and filed a
second amended complaint on March 28, 2018. Dkt. No. 17. That
same day, the plaintiff filed a motion asking the court to
order his institution to deduct the remainder of the filing
fee from his release account rather than from his regular
prison trust account. Dkt. No. 18. This decision resolves the
plaintiff's motion and screens his second amended
Motion to Use Release Account Funds to Pay Balance of Filing
plaintiff has asked the court to order his institution to
deduct the balance of the filing fee from his release
account, rather than from his regular prison trust account.
Dkt. No. 18. In support of his motion, the plaintiff attached
a copy of Department of Adult Institutions (DAI) policy
309.45.02, Attachment A, which explains the DAI's policy
for when a prisoner may use the funds in his prisoner's
release account. Dkt. No. 18-1.
Prison Litigation Reform Act requires the court to collect
filing fees from a “prisoner's account.” 28
U.S.C. §1915(b). The term “prisoner's
account” includes both a prisoner's release account
and his general account. Spence v. McCaughtry, 46
F.Supp.2d 861, 862 (E.D. Wis. 1999). “A release account
is a restricted account maintained by the Wisconsin
Department of Corrections to be used upon the prisoner's
release from custody upon completion of his sentence.”
Wilson v. Anderson, No. 14-C-798, 2014 WL 3671878 at
*3 (E.D. Wis. July 23, 2014) (citing Wis. Adm. Code §
DOC 309.466). Given the purpose of the release account,
federal courts generally don't consider it a good idea to
focus on that account as the source of money to pay the
filing fee requirements. Smith v. Huibregtse, 151
F.Supp.2d 1040, 1042 (E.D. Wis. 2001).
attaching DAI policy 309.45.02 to his motion, the plaintiff
appears to suggest that the Department of Corrections'
policy allows prisoners to use release account funds to pay
case filing fees. If that is the plaintiff's
interpretation of the policy, he is incorrect. The policy
states that a prisoner may use funds in his release account
to pay for PLRA fees (i.e., case filing fees) only
if a court directly orders the institution to use those
funds, and only if there are no funds available in the
prisoner's regular prison trust account.
the first requirement, the policy acknowledges that, in some
circumstances, a court may decide that it is appropriate to
deviate from the standard practice and allow a prisoner to
use release account funds to pay the filing fee. This
provision encourages a prisoner to present his request to the
court, so the court may decide whether departing from the
standard practice is necessary or appropriate. Here, the
plaintiff has not identified any reason that the court should
allow him to pay his filing fee balance out of his trust
account. He addressed the motion to the clerk of court, and
all it said was that he was requesting an order directing the
institution to let him pay the balance from the release
account. Dkt. No. 18.
the second requirement, the policy says that, to the extent a
prisoner has funds in his regular account, he first should
use those funds to pay case filing fees, rather than
depleting the funds in his release account. On May 19, 2017,
the court received from the plaintiff a copy of his regular
trust account statement for the period from November 15, 2016
through May 5, 2017-some five and a half months. Dkt. No. 3.
That statement showed that, at least as of that period, the
plaintiff was receiving regular deposits into his account
(presumably from his prison job), as well as deposits from
someone outside the institution (perhaps a friend or family
member). The plaintiff's average monthly deposits totaled
$160.14 for those months, and his average monthly balance was
a positive $30.41. Some of the money deposited was deducted
by the institution for various reasons (including satisfying
an outstanding restitution order), but much of it remained
available to the plaintiff.
money in the plaintiff's release account is there so that
when he is released from custody, he won't go out into
the world with nothing. Because the plaintiff has not given
the court any reason to allow him to pay the balance of his
filing fee from his release account, and because it appears
that the plaintiff has adequate money in his regular account,
the court does not think it is a good idea to allow him to
use the money in his release account to pay his case filing
fees. The court will deny this motion.
Screening the Plaintiff's Second Complaint
Federal Screening Standard
court previously explained to the plaintiff that it was
required to dismiss a complaint if a plaintiff raises claims
that are legally “frivolous, malicious, ” that
fail to state a claim upon which relief may be granted or
that seek monetary relief from a defendant who is immune from
such relief. 28 U.S.C. §1915A(b). To state a claim under
the federal notice pleading system, a plaintiff must provide
a “short and plain statement of the claim showing that
[he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2).
proceed under 42 U.S.C. § 1983, a plaintiff must allege
facts sufficient to support the inference that: 1) he was
deprived of a right secured by the Constitution or laws of
the United States; and 2) the defendant was acting under
color of state law. Buchanan-Moore v. Cty. of
Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing
Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861
(7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S.
635, 640 (1980). The court gives a pro se
plaintiff's allegations, “however inartfully
pleaded, ” a liberal construction. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).