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Blizzard v. Thoreson

United States District Court, E.D. Wisconsin

August 30, 2019

ALVIN L. BLIZZARD, and RUSSELL B. MOTT, Plaintiffs,
v.
NEIL THORESON, et al., Defendants.

         ORDER DENYING PLAINTIFF ALVIN BLIZZARD’S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 2) AND DISMISSING COMPLAINT AS TO BLIZZARD FOR FAILURE TO PAY FILING FEE AND FAILURE TO PROSECUTE CASE; GRANTING PLAINTIFF RUSSELL MOTT’S MOTION FOR EXTENSION OF TIME TO PAY INITIAL PARTIAL FILING FEE (DKT. NO. 10), GRANTING HIS MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 2), SCREENING COMPLAINT UNDER 28 U.S.C. §1915A, DISMISSING COMPLAINT AS TO MOTT BECAUSE HIS CLAIMS ARE NOT RIPE, AND DISMISSING CASE

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         Plaintiffs Alvin Blizzard and Russell Mott are Wisconsin state prisoners who are representing themselves. On April 11, 2019, they filed a joint complaint under 42 U.S.C. §1983, alleging that the defendants violated their rights under federal law. Dkt. No. 1. This decision resolves their joint motion for leave to proceed without prepaying the filing fee, dkt. no. 2, and Mott’s motion for an extension of time to pay the initial partial filing fee, dkt. no. 10; it also screens their complaint, dkt. no. 1.

         I. Joint Motion for Leave to Proceed without Prepaying the Filing Fee (Dkt. No. 2)

         The Prison Litigation Reform Act (PLRA) applies to this case because the plaintiffs were prisoners when they filed their complaint. See 28 U.S.C. §1915(h). The PLRA allows the court to give a prisoner plaintiff the ability to proceed without prepaying the entire civil case filing fee. 28 U.S.C. §1915(a)(2). When funds exist, the prisoner must pay an initial partial filing fee. 28 U.S.C. §1915(b)(1). He then must pay the balance of the filing fee over time, through deductions from his prisoner account. Id. The Court of Appeals for the Seventh Circuit has instructed that, in cases where the PLRA applies, each prisoner plaintiff must pay the entire filing fee. See Boriboune v. Berge, 391 F.3d 852, 855-56 (7th Cir. 2004).

         A. Plaintiff Mott’s Request to Proceed without Prepaying the Filing Fee (Dkt. No. 2)

         On June 26, 2019, the court ordered Mott to pay an initial partial filing fee of $234.64. Dkt. No. 7. About a month later, the court received from Mott a motion for an extension of time to pay that initial partial filing fee; he asked the court for help getting his institution to release the money to the court. Dkt. No. 10. Before the court ruled on that motion, however, it received from Mott a payment of $350, see dkt. no. 12, which covers the full filing fee for indigent plaintiffs. The court will grant Mott’s motion for an extension of time to pay the initial partial filing fee, effective back to the date the fee was due (July 17, 2019), dkt. no. 10, and will grant his motion to proceed without prepayment of the filing fee, dkt. no. 2.

         B. Blizzard’s Request to Proceed without Prepaying the Filing Fee (Dkt. No. 2)

         The day after the plaintiffs filed their joint request to proceed without prepaying the filing fee, the clerk’s office sent each of them a letter informing them that before the court would consider their request, each plaintiff must file a certified copy of his institutional trust account statement for the six months preceding the filing of their complaint. Dkt. No. 3.

         Neither plaintiff complied with this request, so on May 29, 2019, the court ordered that by June 21, 2019, each plaintiff must file a certified copy of his trust account statement covering the six months prior to the date on which they filed their complaint (October 2018 through March 2019). Dkt. No. 4. The court warned the plaintiffs that if they did not comply with the court’s order, the court might dismiss their complaint. Id.

         The next day, the court received a letter from the plaintiffs explaining that only recently had they had received the letter from the clerk’s office instructing them to file their trust account statements. Dkt. No. 5. They asked if the court would “accept [their] late notice,” and they confirmed their interest in continuing with the case. Id. The plaintiffs’ letter was dated May 27, 2019, two days before the court entered its order, suggesting that the court’s order and the plaintiffs’ letter had crossed in the mail.

         On June 12, 2019, the court received Mott’s trust account statement. Dkt. No. 6. Blizzard did not file his trust account statement by the June 21 deadline. According to the Department of Corrections inmate locator, Blizzard moved from the Milwaukee Secure Detention Facility (the institution where he was housed when the plaintiffs filed their complaint) to Dodge Correctional Institution on May 31, 2019; he was transferred to Fox Lake Correctional Institution on August 22, 2019. See https://appsdoc.wi.gov/lop/home.do (last accessed August 29, 2019). It is likely that Blizzard did not receive the court’s May 29 order requiring him to file his trust account statement by June 21, 2019.

         Nevertheless, the plaintiffs’ May 30 letter acknowledged that Blizzard received the letter from the clerk’s office notifying him of his obligation to submit a certified copy of his prison trust account statement. That letter concluded with the following warning: “Failure to comply with this requirement may result in the Court’s dismissal of your case.” Dkt. No. 3 (emphasis in the original).

         Despite knowing about this requirement for more than three months, Blizzard has not filed a certified copy of his trust account statement. The court will deny his motion to proceed without prepayment of the filing fee and will dismiss the complaint as to Blizzard based on ...


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