United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2),
DENYING PLAINTIFF'S MOTION TO PAY FILING FEES OUT OF
RELEASE ACCOUNT (DKT. NO. 3), SCREENING COMPLAINT, AND
DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
PAMELA PEPPER United States District Judge
Rufus West, a state prisoner who is representing himself,
filed a complaint under 42 U.S.C. §1983, alleging that
the defendants violated his civil rights. Dkt. No. 1. This
decision resolves the plaintiff's motion for leave to
proceed without prepaying filing fee, dkt. no. 2, and his
motion to pay filing fees out his release account, dkt. no.
3. The court also screens the complaint.
Motion for Leave to Proceed without Prepayment of the Filing
Fee (Dkt. No. 2)
Prison Litigation Reform Act (PLRA) applies to this case
because the plaintiff was incarcerated when he filed his
complaint. 28 U.S.C. §1915. That law allows a court to
give an incarcerated plaintiff the ability to proceed with
his case without prepaying the civil case filing fee, if he
meets certain conditions. One of those conditions is that the
plaintiff pay an initial partial filing fee. 28 U.S.C.
§1915(b). Once the plaintiff pays the initial partial
filing fee, the court may allow the plaintiff to pay the
balance of the $350 filing fee over time, through deductions
from his prisoner account. Id.
August 17, 2018, the court ordered the plaintiff to pay an
initial partial filing fee of $26.48. Dkt. No. 6. The court
received that fee on August 30, 2018. The the court will
grant the plaintiff's motion for leave to proceed without
prepaying the filing fee, and will order him to pay the
remainder of the filing fee over time in the manner explained
at the end of this order.
Motion to Pay Fees Out of Release Account (Dkt. No.
filed his motion for leave to proceed without prepaying the
filing fee, the plaintiff also filed a motion asking the
court to allow him to pay fees out of his release account.
Dkt. No. 3. He stated that he didn't have enough money in
his regular account to pay the filing fee, but that he did
have enough money in his release account. Id. The
plaintiff also asked that if the court did not allow him to
pay the full filing fee from his release account, he would
like to pay the initial partial filing fee from his release
account. Id. On the same day it received this
motion, the court issued an order assessing the plaintiff an
initial partial filing fee which, as stated above, he has
paid. Thus, the plaintiff's request as it relates to
payment of the initial partial filing fee from his release
account is moot.
a court may can order a prison to allow an inmate to use
funds from his release account to pay the initial partial
filing fee, the PLRA does not require the court to allow an
inmate to use release account funds to pay the balance of the
filing fee. See 28 U.S.C. §1915(b). Once a
plaintiff has paid the initial partial filing fee, the PLRA
requires the inmate to pay the balance by making payments
equal to “twenty percent of the preceding month's
income credited to the prisoner's account.” 28
U.S.C. §1915(b)(2). “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.” Carter v. Bennett, 399
F.Supp.2d 936, 937 (W.D. Wis. 2005). This makes sense.
“The purpose of . . . release accounts is to ensure
‘that the inmate has sufficient funds when released
from the institution to purchase release clothing,
out-of-state transportation, and other items and services
needed upon release.” Doty v. Doyle, 182
F.Supp.2d 750, 751 (E.D. Wis. 2002) (quoting §DOC
309.02(18). If an inmate could use his release account to pay
$350 filing fees for filing federal lawsuits, it would defeat
the purpose of the release account for many inmates. Initial
partial filing fees are small amounts, usually not enough to
deplete a release account. But $350 would make a serious dent
in, if not deplete, an inmate's release account balance.
Given that, the court will deny the plaintiff's request
to pay the balance of the $350 filing fee from his release
account. He can pay it over time as prescribed by the PLRA.
Screening the Plaintiff's Complaint
Federal Screening Standard
requires the court to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. §1915A(a).
The court must dismiss a complaint if the plaintiff raises
claims that are legally “frivolous or 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).
state a claim, a complaint must contain sufficient factual
matter, accepted as true, “that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows a court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
state a claim under 42 U.S.C. §1983, a plaintiff must
allege that 1) someone deprived him of a right secured by the
Constitution or laws of the United States; and 2) whoever
deprived him of that right 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,
The Plaintiff's Allegations
plaintiff is incarcerated at the Green Bay Correctional
Institution. Dkt. No. 1 at 1. He is suing Captain Baumann,
Captain Stevens, Lieutenant Swiekatowksi, Security Director
John Kind and Warden Scott Eckstein, all of whom work at
Green Bay. Id. The plaintiff also sues Cindy
O'Donnell, who allegedly was the Wisconsin Department of
Corrections' (DOC) security designee at the time of the
events he describes. Id. at 2. The plaintiff claims
that the defendants retaliated against him after he
complained that the DOC was not following a settlement
agreement it entered into in a federal case the plaintiff
litigated in the Western District of Wisconsin.
plaintiff alleges that on June 27, 2016, he entered into a
settlement agreement with the State of Wisconsin, the DOC and
agents of those entities in his federal case, West v.
Grams, Case No. 11-cv-687-slc (W.D. Wis.). Dkt. No. 1 at
3. According to the plaintiff, as part of the settlement
agreement, the defendants agreed that regularly-scheduled
congregate religious programming would not be cancelled for
not having a community volunteer or DOC Chaplain of that
faith available to lead the event. Id. The
settlement agreement allegedly required prison officials and
DOC institutions to post a memorandum in the library and
chapel (or other central location) by September 21, 2016, and
for a term of six months after, notifying inmates that
routinely-scheduled congregate religious programming would
not be canceled for the lack of having a community volunteer
or DOC Chaplain available to lead the event. Id.
plaintiff alleges that before January 3, 2017, he provided
evidence showing that as of September 21, 2016, “the
Memo had not been posted in some of the proper locations as
required by the Agreement.” Id. at 4. He also
alleges that before January 3, 2017, he “provided
evidence showing that since September 22, 2016,
routinely-scheduled congregate religious programs including
Talim study groups at Green Bay Correctional Institution have
been canceled in some or all DOC institutions due to the
unavailability of a DOC Chaplain or volunteer.”
Id. He does not say to whom he provided this
Temporary Lock-Up and Conduct Report
plaintiff alleges that on January 3, 2017, he was summoned
from his job in the Bathhouse to the Rotunda where prison
staff “arrested” him and placed him in temporary
lock-up (TLU) pending investigation into a charge of group
resistance and petitions. Id. Once at lock-up, staff
allegedly strip-searched the plaintiff. Id. at 4-5.
The plaintiff alleges that several minutes later, another
inmate, Darin Cobb, was placed in the TLU cell with him
pending investigation into a similar charge of group
resistance and petitions. Id. at 5.
plaintiff alleges that on January 9, 2017, the investigation
into the plaintiff and Cobb concluded, and the plaintiff
“was found not to have participated in any ‘group
resistance and petitions.'” Id. at 6. He
alleges, however, that defendants Kind and Eckstein allegedly
refused to release the plaintiff from TLU back to general
population. Id. The plaintiff alleges that Kind and
Eckstein reviewed his retention on TLU every seven days (on
January 11 and January 18) and that they kept him on TLU even
though they knew that he was not involved in any group
resistance and petitions. Id.
January 9, 2017, defendant Stevens allegedly issued the
plaintiff a conduct report (CR 2922467), claiming that on
December 30, 2016, both the plaintiff and Cobb stood before a
group of inmates and led the group by answering questions
during the Islamic Jumah service in the Chapel. Id.
The conduct report also allegedly charged that the plaintiff
“stated that per Mazin al-Shakhely (the volunteer)
either he or Cobb would be giving the Khutba [sermon] from
that point on.” Id. According to the
plaintiff, the conduct report states that Cobb stood up next
to Mazin, answered questions, and stated “that it
doesn't matter if you're 2-4, 7-4, 22-12 you should
know Jumah it is why we are here.” Id. The
plaintiff alleges that the conduct report indicated the
numbers referred to gangs, also known as security threat
groups, and by making this statement, “Cobb implied
that the Jumah service is for participating in security
threat group gatherings; 303.24.” Id.
According to the plaintiff, the conduct report ended:
Per the Religious Policy, inmates are not allowed to lead
groups at any time; 303.28. Volunteer Mazin al-Shakhely was
present for this service and leads it. He did not give
permission for West or Cobb to lead this service; 303.31.
Mazin said that he asked these two inmates to let him know
what were the issues facing the Islamic inmates at GBCI so
that he could better prepare his Khutba's.
Id. at 6-7. The plaintiff alleges that defendant
Stevens issued a conduct report against Cobb with the same
allegations. Id. at 7. Defendant Stevens allegedly
charged the plaintiff and Cobb with violating prison rules
303.28 (Disobeying order) and 303.31 (Lying), and he charged
Cobb with an additional charge of 303.24 (Group Resistance
and Petitions). Id.
plaintiff alleges that on January 11, 2017, defendant Baumann
stated that both conduct reports would be designated as
“Major Offenses” under 303.71(2). Id. He
also alleges that none of the charges are designated as Major
Offenses under 303.71(2). Id.
plaintiff says that on January 17, 2017, Ms. Gerrits visited
the plaintiff and Cobb at their cell and said that she had
been assigned as their advocates for the hearings on their
conduct reports. Id. at 8. She allegedly gave them
each a witness form to fill out and told them to turn it in
that night. Id. The plaintiff allegedly turned his
in that night by passing it to an officer during evening
medication pass. Id. He states that he requested two