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Jones v. Litscher

United States District Court, E.D. Wisconsin

May 10, 2018

JUMAR K. JONES, Plaintiff,


          PAMELA PEPPER United States District Judge

         On May 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 complaint.

         I. Motion to Use Release Account Funds to Pay Balance of Filing Fee

          The 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.

         The 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).

         By 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.

         As to 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.

         As to 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.

         The 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.

         II. Screening the Plaintiff's Second Complaint

         A. Federal Screening Standard

         The 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).

         To 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)).

         B. The ...

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