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May v. Department of Corrections

United States District Court, E.D. Wisconsin

January 10, 2020

EDITH MAE MAY, Plaintiff,
v.
DEPARTMENT OF CORRECTIONS and TAYCHEEDAH CORRECTIONAL INSTITUTION, Defendants.

          ORDER ON PLANITIFF'S MOTION TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE AND SCREENING THE COMPLAINT

          NANCY JOSEPH, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Edith Mae May, who is confined at Taycheedah Correctional Institution and who is representing herself, filed a complaint against defendants alleging their policies for providing office supplies for indigent prisoners are illegal. Not all parties have had the opportunity to fully consent to magistrate judge jurisdiction under 28 U.S.C. § 636(c). Nonetheless, I have jurisdiction to screen the complaint under the Wisconsin Department of Justice's limited consent to the exercise of magistrate judge jurisdiction as set forth in the Memorandum of Understanding between the Wisconsin Department of Justice and this court.

         May has also filed a motion for a temporary restraining order and preliminary injunction asking the court to enjoin defendants from indirectly making her pay for office supplies. Additionally, she has also filed two motions for extension of deadlines. I will address each in turn.

         1. Motion to Proceed without Prepayment of the Filing Fee and Motions for Extension of Deadlines

         The Prison Litigation Reform Act gives courts discretion to allow prisoners to proceed with their lawsuits without prepaying the $350 filing fee, as long as they comply with certain requirements. 28 U.S.C. § 1915. One of those requirements is that the prisoner pay an initial partial filing fee.

         On August 27, 2019, I ordered May to pay an initial partial filing fee of $1.76 by September 18, 2019. On October 2, 2019, May still had not paid the initial partial filing fee, so I ordered her to either explain why she was not able to pay the fee or pay the fee by October 23, 2019. Instead of paying the filing fee, she filed two motions for extensions of deadlines. However, she did not explicitly ask for the deadline to pay the initial partial filing fee be extended. As such, I issued another order to show cause on November 18, 2019 and gave May until December 5, 2019 to pay the initial partial filing fee. May paid the initial partial filing fee December 9, 2019. Accordingly, I will grant May's motion. She must pay the remainder of the filing fee over time in the manner explained at the end of this order. I will also deny May's motions for extensions of deadlines as moot because there are no active deadlines in this case.

         2. Temporary Restraining Order and Preliminary Injunction

         May filed a temporary restraining order asking me to enjoin the defendants from indirectly making her pay for office supplies. ECF No. 4. She states that defendants, since 2016, have been taking money out of her prisoner account for the repayment of legal loans. She asserts that part of the money for repayment of her legal loans is going towards paying for office supplies like pens, paper, and stamps that she needs for filing legal documents. She further states that such supplies should be provided to her by the state at no cost because she is indigent. She asserts that having to pay back these legal loans leaves her no money for hygiene products because she only makes between $0.01-$0.35 every two weeks. She argues that because she is in essence paying for her supplies, the defendants should be enjoined from taking money for repayment of her legal loans out of her account and should be ordered to reimburse her for all payments she has made to date.

         A preliminary injunction or temporary restraining order is “an extraordinary remedy” that a court may grant only after a “clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, 555 U.S. 7. 22 (2008). To make such a showing, the plaintiff must show that 1) her underlying case has some likelihood of success on the merits; 2) no adequate remedy at law exists; and 3) she will suffer irreparable harm without the injunction. Wood v. Buss, 496 F.3d 620, 622 (7th Cir. 2007). If the plaintiff makes that showing, then the court must balance the harm to each party and to the public interest caused by granting or denying the injunction. Id. See also Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013); Cooper v. Salazar, 196 F.3d 809 813 (7th Cir. 1999).

         I will not grant May the requested injunction. She has not shown that her underlying case has some likelihood of success on the merits. At best, being required to pay for office supplies would be an access-to-courts claim under the Fifth Amendment. While it “‘is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents . . .and with stamps to mail them, ” Owens v. Evans, 878 F.3d 559, 564 (7th Cir. 2017) (quoting Bounds v. Smith, 430 U.S. 817, 824-25 (1977)), if an inmate alleges she was denied these supplies, to prevail on an access-to-courts claim, she “must also allege the prejudice [s]he suffered as a result of the alleged denials.” Stathas v. Smith, 2018 WL 6033493 at *2 (E.D. Wis. Nov. 16, 2018) (citing Marshall v. Knight, 445 F.3d 965, 969-70 (7th Cir. 2006)). By denying the inmate supplies, the defendants “must have done more than merely inconvenienced [her]; they must have ‘caused a potentially meritorious claim to fail.'” Id. (quoting Marshall, 445 F.3d at 969.) And the claim cannot be based “on speculation that [s]he would suffer some unspecified future harm, ” but must be based on “an actual or imminent injury.” Marshall 445 F.3d at 969-670.

         In both her motion for temporary restraining order and her complaint (discussed below), May fails to allege that she suffered any prejudice as a result of being required to indirectly pay for office supplies by paying back her legal loans. She does not describe how this has impacted her ability to successfully litigate her cases. At most, she alleges inconvenience and financial hardship.

         Even if she did sufficiently allege facts that demonstrate she would have some likelihood of success on the merits, she does not demonstrate that she would suffer irreparable harm without the injunction. The apparent harm is that the defendants are erroneously taking money from her account. This is not irreparable because the remedy is to simply reimburse May the expenses if the withdrawals are indeed erroneous. As such, I will deny her motion for a temporary restraining order and preliminary injunction.

         3. Screening ...


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