United States District Court, E.D. Wisconsin
ORDER DENYING PLAINTIFF'S MOTION TO PROCEED
WITHOUT PREPAYING THE FILING FEE (DKT. NO. 2) AND SETTING A
DEADLINE FOR THE PLAINTIFF TO PAY THE FILING FEE IN
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
Patrick James Werner, who is presently confined at Oshkosh
Correctional Institution and representing himself, filed a
complaint under 42 U.S.C. §1983, alleging that his civil
rights were violated. Dkt. No. 1. He also filed a motion for
leave to proceed without prepayment of the filing.
Dkt. No. 2. He filed his trust account statement for the
months of January through July 2019; it showed that he had
average monthly deposits of $14.14 and, as of the end of
July, a negative balance of $0.24. Dkt. No. 4. The court must
deny the motion. The plaintiff also filed a motion asking the
court to allow him to pay any “partial filing
fees” out of his release account. Dkt. No. 3. The
plaintiff conceded that he owed “for past federal
filings fees, ” and that he had accrued three strikes.
Id. at 1. But he argued that this case involved
upcoming injury or harm, and that he had money in his release
account. Id. Finally, the plaintiff filed a motion
asking the court the allow him to be present at all hearings.
Dkt. No. 5. He indicated that he could be released around
October 8, 2019 if the parole board granted him parole.
Id. at 1. He indicated that he would “have to
travel to Madison for various other issues as well . . .
.” Id. at 2.
Prison Litigation Reform Act (PLRA) applies to this case
because the plaintiff was incarcerated when he filed his
complaint (and, according to the Wisconsin Inmate Locator web
site, is still in custody). The PLRA mandates that “in
no event” may a prisoner bring a civil case or an
appeal if, on three or more occasions while incarcerated, he
has brought a case or an appeal that was dismissed because it
was frivolous, malicious or failed to state a claim upon
which relief could be granted, “unless the prisoner is
under imminent danger of serious physical injury.” 28
U.S.C. §1915(g). This is commonly known as the
plaintiff has, as he acknowledged in his motion to pay the
filing fee out of his release account, three strikes. He has
received strikes in the following cases: (1) Werner v.
Richmond, No. 15-cv-116 (E.D. Wis. Sept. 4, 2017); (2)
Werner v. Steffens, No. 14-cv-439 (E.D. Wis. July 7,
2015); and (3) Werner v. Goassage, No. 12-cv-380
(E.D. Wis. June 11, 2012).
the plaintiff has accrued three strikes, the next question is
whether he meets the exception for “imminent danger of
serious physical injury.” 28 U.S.C. §1915(g). He
does not. The plaintiff's twenty-six-page complaint
alleges that the GPS monitoring requirements and other
systems put in place to monitor individuals on parole or
extended supervision, and how they are used by various
employees of the Wisconsin Department of Corrections, violate
the First, Fourth and Fourteenth Amendments. Dkt. No. 1.
Nothing in the plaintiff's complaint alleges that he is
at imminent risk of physical injury. Rather, he
appears to believe that he is going to be released from
custody in mid-October, and that at that time, he will be
subject to supervision conditions which he asserts violate
the constitution. Dkt. No. 1 at 10. Even if the plaintiff is
correct-and he is released sometime in the next week or
so-the harm he says he will suffer is not physical
harm. The plaintiff does not meet the exception in
§1915(g) and therefore cannot proceed without prepaying
the filing fee.
court will not rule on the plaintiff's other motions at
this time. If, as the plaintiff anticipates, he's
released in the next week or so, he will receive the funds in
his release account, and he can decide whether to use them to
pay the $400 filing fee. As to his motion to allow him to
appear at hearings, if the plaintiff is out of custody, he is
free to attend any hearing the court schedules. The court
notes, however, that the plaintiff appears to believe that
any such hearings will take place in Madison, Wisconsin. This
court sits in Milwaukee, and any hearings the court
sets will take place in Milwaukee.
court DENIES the plaintiff's motion to
proceed without prepayment of the filing fee. Dkt. No. 2. If
the plaintiff wants to proceed with this case, he must pay
the $400 filing fee in time for the court to receive it by
November 8, 2019. If the court does not
receive the $400 filing fee by Friday, November 8, 2019, the
court will dismiss this case for failure to pay the filing
 According to the Department of
Corrections' Inmate Locator web site, the plaintiff's
mandatory release date is October 15, 2019.