Marshall v. State of Wisconsin

Filing 49

ORDER signed by Judge Pamela Pepper on 2/29/2016 DENYING 39 Petitioner's Motion for Reconsideration; DENYING AS MOOT 43 Petitioner's Second Motion for Leave to Appeal in forma pauperis; and GRANTING 48 Petitioner's Motion for Au thorization to Pay Appellate Filing Fee from Release Account. The court ORDERS that the Warden of Waupun CI shall withdraw $505 from the Petitioner's release account and forward that sum to the clerk of court as payment for the initial partial filing fee in this action no later than 3/25/2016. (cc: all counsel; by US Mail to Petitioner and Warden at Waupun CI) (pwm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAVID MARSHALL,

Case No. 13-cv-111-pp
Petitioner,

v.
STATE OF WISCONSIN,
Respondent.

ORDER DENYING PETITIONER’S SECOND MOTION FOR LEAVE TO
APPEAL IN FORMA PAUPERIS AS MOOT (DKT. NO. 43), DENYING
PETITIONER’S MOTION FOR RECONSIDERATION (DKT. NO. 39), AND
GRANTING MOTION FOR AUTHORIZATION TO PAY APPELLATE FILING
FEE FROM RELEASE ACCOUNT (DKT. NO. 48)
_____________________________________________________________________________
On January 30, 2013, David Marshall, representing himself, filed a
petition for habeas corpus relief. Dkt. No. 1. On January 4, 2016, the court
denied and dismissed the petition, and declined to issue a certificate of
appealability. Dkt. No. 27. On January 19, 2016, the petitioner filed a motion
for extension of time to file a notice of appeal. Dkt. No. 29. The court construed
the motion as the petitioner’s notice of appeal, and directed the clerk’s office to
docket the motion as a notice of appeal. Dkt. No. 30.
On January 19, 2016, the clerk’s office docketed the notice of appeal,
Dkt. No. 31, and transmitted the notice and docket sheet to the United States
Court of Appeals for the Seventh Circuit. Dkt. Nos. 33, 34. On January 25,
2016, the Court of Appeals sent back to this court the petitioner’s request for a
certificate of appealability, Dkt. No. 35, and his motion to proceed in forma

1

pauperis on appeal, Dkt. No. 35-1. On February 1, 2016, this court issued an
order denying the petitioner’s request for certificate of appealability and his
application to proceed in forma pauperis. Dkt. No. 36.
On February 10, 2016, the petitioner filed a second motion for leave to
appeal in forma pauperis. For some reason, this second motion did not appear
on this court’s docket until February 22, 2016. Because the court already has
denied a similar motion (Dkt. 36), and because the court will deny his motion
for reconsideration, the court will deny the February 10, 2016 motion for leave
to appeal in forma pauperis as moot.
The petitioner also filed a motion asking the court to authorize the prison
to pay the appellate filing fee from his release account. Dkt. No. 48. The Prison
Litigation Reform Act (PLRA) requires the court to collect filing fees from a
“prisoner’s account.” 28 U.S.C. §1915(b). The term “prisoner’s account”
encompasses both a prisoner’s release account and general account. Spence v.
McCaughtry, 46 F. Supp. 2d 861, 862 (E.D. Wis. 1999). However, “given the
purpose of the release account to provide funds to the prisoner upon his or her
release from incarceration, the Court does not deem it prudent to routinely
focus on the release account as the initial source of funds to satisfy the filing
fee payment requirements of the PLRA.” Smith v. Huibregtse, 151 F. Supp. 2d
1040, 1042 (E.D. Wis. 2001). Nevertheless, upon request, a court may allow a
plaintiff to pay a filing fee, or a portion thereof, out of his release account. Doty
v. Doyle, 182 F. Supp. 2d 750, 752 (E.D. Wis. 2002).

2

The plaintiff’s desire to pay his initial partial filing fee with funds from
his release account is clear, and he represents that his release account
contains adequate funds to cover the fee. Accordingly, the court will grant the
plaintiff’s motion to pay the fee with funds in his release account.
On February 15, 2016, the petitioner filed a motion asking this court to
reconsider that decision. Dkt. No. 39. For the reasons stated below, the court
will deny the motion.
“Technically, a ‘Motion for Reconsideration’ does not exist under the
Federal Rules of Civil Procedure.” Talano v. Northwestern Med. Faculty
Foundation, Inc., 273 F.3d 757, 760 n.1 (7th Cir. 2001). However, “[m]otions
may exist as a matter of general practice. And that’s what the Supreme Court
has held.” United States v. Rollins, 607 F.3d 500, 502 (7th Cir. 2010). The
petitioner did not identify the rule under which he was bringing his motion, but
the Federal Rules of Civil Procedure provide two possible options.
First, Rule 59(e) allows a party to file “[a] motion to alter or amend a
judgment . . . no later than 28 days after the entry of judgment.” In this case,
the petitioner filed his motion to reconsider fourteen days after the court
entered its February 1, 2016 order. Therefore, the petitioner’s motion would be
timely under Rule 59(e). But Rule 59(e) motions serve a very limited purpose in
civil litigation. A court may alter or amend a judgment pursuant to Rule 59(e)
only when the movant presents newly discovered evidence or where there has
been a manifest error of law or fact. Harrington v. City of Chicago, 433 F.3d
542, 546 (7th Cir. 2006) (citing Bordelon v. Chi. Sch. Reform Bd. of Trs., 2333
3

F.3d 524, 529 (7th Cir. 2000)). Rule 59(e) requires that the movant “clearly
establish” one of the aforementioned grounds for relief. Id. (citing Romo v. Gulf
Stream Coach, Inc., 250 F.3d 1119, 1122 n.3 (7th Cir. 2001)).
The plaintiff’s motion does not satisfy the requirements of Rule 59(e). He
does not argue that the court made a manifest error of law, nor does he identify
any newly discovered evidence. Instead, he states, “I had to rush to put
something together for the court, and I didn’t do my best on stating my
constitutional right.” Dkt. No. 39 at 2. He then re-explains the claims he
alleged in his petition. He also states that he has shown “the inability to pay”
the filing fee. Id. at 4.1 That the petitioner didn’t do as thorough a job as he
might have liked in crafting his petition, or that he is incarcerated in a facility
which sometimes limits his ability to access the law library,2 or that he is
indigent, are not sufficient bases upon which to grant relief under Rule 59(e).
The second “reconsideration” option is Rule 60(b), which allows the court
to grant relief from a judgment or order. Whether a court should analyze a
motion under Rule 59(e) or 60(b) depends on the substance of the motion, not
The court disagrees. On February 3, 2016, the petitioner filed his prisoner
trust fund account statement. Dkt. No. 37. That document shows that, as of
February 2, 2016, the petitioner had a balance of $828.09 in his trust account.
This demonstrates that he has the ability to pay the $505 filing fee and still
have a balance of about $323.09 to use at the commissary or to make other
purchases at his institution.
1

It also appears that the petitioner is referring to his motion to extend time—
which the court construed as a notice of appeal—in explaining that he was
rushed. He talks about how the institution was on lock-down while he was
preparing the pleading which he thinks was not “his best.” But the pleading
that the court dismissed was his petition, which he filed in 2013; presumably
the institution was not on lock-down in 2013, and the petitioner did have time
to state all of his arguments in his petition.
2

4

on the label the plaintiff affixes to it. Obreicht v. Raemisch, 517 F.3d 489, 493
(7th Cir. 2008) (citing Borrero v. City of Chicago, 456 F.3d 698, 701-02 (7th
Cir. 2006)). This court may, on its own, review the arguments in the petitioner’s
motion to determine whether Rule 60 affords him any relief—even if he didn’t
ask the court to look at Rule 60.
A court may vacate a judgment or order under Rule 60(b) for several
reasons, including mistake and excusable neglect. Fed. R. Civ. P. 60(b).
However, “‘Rule 60(b) relief is an extraordinary remedy and is granted only in
exceptional circumstances.’” Karraker v. Rent-A-Center, Inc., 411 F.3d 831,
837 (7th Cir. 2005) (quoting Cinncinnati Ins. Co. v. Flanders Elec. Motor Serv.,
Inc., 131 F.3d 625, 628 (7th Cir. 1997)).
The petitioner has not alleged mistake, excusable neglect, or exceptional
circumstances. In fact, he notes that his situation reflects what many prisoners
face: over-crowded facilities, limited access to the law library, and limited
financial resources. The court acknowledges the difficulties an incarcerated
litigant faces, but those difficulties do not justify the granting of an
extraordinary remedy under Rule 60.
The court DENIES AS MOOT the petitioner’s February 10, 2016 motion
to proceed in forma pauperis on appeal (Dkt. No. 43). The court ORDERS that
the plaintiff’s motion to pay his initial partial filing fee with funds from his
release account (Dkt. No. 48) is GRANTED.
The court further ORDERS that the warden of Waupun Correctional
Institution shall withdraw $505.00 from the plaintiff’s release account and
5

forward that sum to the clerk of court as payment for the initial partial filing
fee in this action. The warden shall make such payment by March 25, 2016.
The court DENIES the petitioner’s motion for reconsideration (Dkt. No.
39).
The court will mail a copy of this order to the warden of Waupun
Correctional Institution.
Dated in Milwaukee, Wisconsin this 29th day of February, 2016.

6