Gard v. Dooley et al

Filing 9

ORDER granting 6 Motion to Extend - Plaintiff shall have until March 16, 2015 to pay the initial partial filing fee of $28.50; denying 7 Motion to Use Frozen Funds. Signed by US Magistrate Judge Veronica L. Duffy on 1/15/2015. (Attachments: # 1 Miller v. Weber opinion re: frozen funds usage) (CG)

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FILEI
UNITED STATES DISTRICT COURT

JAN 23 2013

DISTRICT OF SOUTH DAKOTA

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SOUTHERN DIVISION

GERALD MILLER,
Plaintiff,
vs.
DOUGLAS WEBER, Warden,
South Dakota State Penitentiary;
ROBERT DOOLEY, Warden,
Mike Durfee State Prison;
DR. WATT, contract doctor,
South Dakota Dept. of Corrections,
North Central Heart Institute;
DR. RAYMOND H. ALLEN,
contract doctor,
South Dakota Dept. of Corrections,
North Central Heart Institute,
in their individual and official capacities,
Defendants.

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Civ. 11-4176-LLP

AMENDED ORDER

The Court issued an order on May 29,2012, granting Miller's motion to proceed in
fonna pauperis, but dismissing his § 1983 complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
for failure to state a claim upon which relief may be granted. Docket 9. In calculating Miller's
initial partial filing fee, the Court looked at Miller's average monthly balance for the six
months preceding the filing of his § 1983 complaint, which at the time was $105.86. Docket 5
at 1. Pursuant to 28 U. S.C. § 1915(b)(1), the court took twenty percent ofthat amount and
detennined that Miller owed an initial partial filing fee of $21.17. Docket 9 at 4.
As indicated on the Prisoner Trust Account Report, frozen funds are included in the
calculation of an inmates accounts and balances. Frozen funds, or frozen accounts, are separate

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sub accounts in which the Department of Corrections "may place a designated amount of an
inmate's deposits and earnings" which are "to be saved until release." ARSD 17:50:01 :21.
"The inmate may not draw from this frozen subaccount prior to release except with the
approval of the warden." Id. Nonetheless, the Court included the funds in Miller's frozen
subaccount when it calculated his initial partial filing fee. Docket 9 at 4.
Miller filed a Motion for Reconsideration on June 26, 2012, notifying the court that the
average monthly balance used by the Court included $100 in frozen funds-funds that are not
available to Miller until his release from prison. Docket 10. Accordingly, Miller has requested
that the Court recalculate his initial partial filing fee using the balance of his spending account,
which represents the only funds Miller is free to access while imprisoned. Id. The Court has
reconsidered its calculation of Miller's initial filing fee, and it has determined that funds held in
a frozen account should not be considered in determining whether to grant an inmate in forma
pauperis status, nor should it be factored into the initial-partial-filing-fee calculation.
The South Dakota Department of Corrections (DOC) describes four types of accounts
available to inmates: (1) commissary or spend accounts, which inmates may use to purchase
personal items from the prison commissary; (2) disbursement accounts, which are used to pay
child support, other court~ordered obligations (fines, fees, sanctions, and restitution), costs
incurred while in the custody of the DOC, and/or costs of incarceration; (3) savings accounts,
from which funds can be transferred to disbursement accounts or "used to make authorized
purchases of property items approved by the warden;" and (4) frozen accounts, from which
"[i]nmates may not withdraw funds ... without the approval of the Warden and then only if
they are serving a life or death sentence or the inmate has a documented, legitimate and

2

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compelling use for the funds." DOC Policy: Inmate Accounts and Financial Responsibility,
1.1.B.2, 6-11 (2012) [hereinafter DOC Inmate Account Policy], available at http://doc.sd.gov/
aboutipolicies/documents/InmateAccountsandFinancialResponsibility.pdf.
The PLRA, on the other hand, does not distinguish between types of prisoner accounts,
nor does it define the term "prisoner's account." Rather, it merely states that courts are to
collect filing fees from a prisoner's account. 28 U.S.C. § 1915(b). In the absence oflegislative
history or case law to the contrary, the court presumes that Congress intended to give deference
to state administrative restrictions in determining which funds to include among a prisoner's
assets for purposes of calculating court filing fees. As previously noted, South Dakota
Administrative Rule 17:50:01 :21 specifies that frozen accounts are "to be saved until release,"
and can only be drawn from prior to release "with the approval of the warden." The South
Dakota Department of Corrections takes this restriction one step further by specifying that the
warden can only give approval if an inmate is serving a life or death sentence, or if "the inmate
has a documented, legitimate and compelling use for the funds." DOC Inmate Account Policy
at 11.'
Applying those restrictions to the instant case, it follows that unless Miller is serving a
life sentence or has a "compelling use for the funds," he cannot request that funds from his
frozen account be released. Therefore, because Miller is not, in fact, serving a life sentence, and
because the payment of a court filing fee does not constitute a "compelling use for the funds,"

Elsewhere, DOC policy states that the transfer of funds from the frozen account to a spend
or savings account is "[s]pecific to inmates serving a life sentence and with Warden's approval."
DOC Inmate Account Policy at 8.
1

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Miller cannot request access to his frozen account. 2 Accordingly, the amount of money in
Miller's frozen account should not be considered in calculating the funds available to Miller for
the payment of court filing fees.
ORDERED that Miller's Motion for Reconsideration is granted.
IT IS FURTHER ORDERED that Miller provide the court with an updated Prisoner
Trust Account Report. In accordance with this order, the Prisoner Trust Account Report will
not include funds present in Miller's frozen account.
Dated this 23 rd day of January, 2013.

BY THE COURT:

LAWRENCE L. PIERSOL
UNITED STATES DISTRICT JUDGE

ATTEST:

JOSEPH HAAS, CLERK~
BY:

5{)..(U.Pl!2J

{l~~

DEPUTY

2 Court fees are among the payments explicitly accounted for within the designation offunds
held in "disbursement accounts." The court therefore finds that the payment ofa court filing fee does
not constitute a "compelling use" of frozen funds.

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