Edmonson v. Fremgen

Filing 19

ORDER granting 11 Motion to Dismiss; denying 15 Motion to Appoint Counsel. (cc: all counsel) (cav)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JASON EDMONDSON,
Plaintiff,
v.

Case No. 13-C-613

DIANE FREMGEN,
Defendant.

DECISION AND ORDER

Plaintiff brought this action under 42 U.S.C. § 1983 against Diane Fremgen, the clerk of the
state courts of appeals. He alleges that Fremgen violated various of his civil rights when she froze
his inmate trust accounts until filing fees had been paid in two of his state appeals. The Defendant
has now moved to dismiss. For the reasons given below, the motion will be granted.
Wisconsin law, like federal law, allows indigent citizens to file civil actions without
prepayment of the filing fee. But, also like federal law, Wisconsin law provides that the unpaid fee
is not waived in its entirety but is collected over time, as funds allow. “The agency having custody
of the prisoner shall freeze the prisoner's trust fund account until the deposits in that account are
sufficient to pay the balance owed for the costs and fees.” Wis. Stat. 814.29(1m)(e). In effect, what
this means is that the state will allow an indigent prisoner to file civil actions or appeals without
pre-payment of the filing fee, but in return the inmate must essentially direct all of his future
earnings and deposits toward the payment of those fees. The account is thereby frozen until the
balance owed is paid. Id.

In April 2013 Edmondson filed two appeals in state court. Under state procedures, the Clerk
of Court is empowered to determine whether an inmate meets the indigence requirement of the
statute. Accordingly, Defendant Fremgen determined that Plaintiff was eligible and allowed his
appeals to be filed without prepayment of the fee. In connection with those determinations, and in
accordance with state law, she also ordered Edmondson’s inmate trust account frozen until the filing
fees were paid. Edmondson argues that this violated his right to access the courts, constituted an
unconstitutional seizure, and denied his right to due process of law.
At the outset, I must address Plaintiff’s motion to appoint counsel. Courts have no ability
to “appoint” counsel in civil cases, but in some cases they are obligated to attempt to recruit counsel
to assist civil litigants to ensure that they receive due process. “The decision whether to recruit pro
bono counsel is grounded in a two-fold inquiry into both the difficulty of the plaintiff's claims and
the plaintiff's competence to litigate those claims himself.” Pruitt v. Mote, 503 F.3d 647, 655 (7th
Cir. 2007). Here, the claims are quite intelligible and factually straightforward: the Plaintiff is
complaining that his money was taken and his account was frozen. Claims like this are analyzed
under well-known constitutional frameworks. Federal courts are well-versed in addressing such
claims; in fact, such claims are usually addressed without counsel. Second, Plaintiff has revealed
an above-average ability to litigate on his own behalf. His filings are neatly typed and his arguments
are cogent. In short, it is hard to imagine how outside counsel would have made a material
difference to this action. The motion will therefore be denied.
Turning to the merits, I first note that it is difficult to envision how freezing his account
violated Plaintiff’s right to access the courts, given that it was part of the process that allowed his
appeals to be filed in the first place. “Lindell's ability to proceed by having deductions for the filing
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fee made from his prison account provides him meaningful access to the courts.” State ex rel.
Lindell v. Litscher, 2003 WI App 36, 260 Wis.2d 454, 461, 659 N.W.2d 413, 417 (Wis. Ct. App.
2003). Plaintiff suggests that not having the ability to spend money in his account prevents him
from copying legal materials and the like, but those are the sorts of impairments that countless
indigent litigants face. Open access to petition the courts does not mean an unrestricted right to
spend money doing legal research. It simply means an inmate must be afforded access to materials
crucial to his claim. Campbell v. Clarke, 481 F.3d 967, 968 (7th Cir. 2007) (prisoner must allege
that “a lack of access to legal materials has undermined,” or caused to founder, “a concrete piece
of litigation”.) Here, Plaintiff does not even allege that the Defendant, by allowing his appeals to
proceed, somehow injured his ability to access the courts.
Plaintiff also argues that the state’s procedures for withdrawing his funds were improper
because he never agreed to them. He signed a form indicating that he authorized the agency to
withdraw payments each time the account exceeds $10 until the costs are paid in full. He asserts
that this form did not suggest that the state had the ability to freeze his account.
But that is what the statute itself provides. In essence Plaintiff’s complaint is that the
Defendant followed state law. But state law is the source of any property rights Plaintiff might have
had in his trust account. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). Since the Defendant
followed that law, there can be no procedural due process claim. To the extent Plaintiff suggests
he lacked adequate notice, the Defendant is not under some sort of general obligation to provide
advance notice to citizens that she will be following the law. “Generally, a legislature need do
nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to
familiarize itself with its terms and to comply.” Texaco, Inc. v. Short, 454 U.S. 516, 532 (1982).
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The law presumes that citizens are familiar with duly passed statutes, and thus the mere fact that the
authorization form Plaintiff himself signed did not mention freezing his account does not entitle him
to relief.
Moreover, the freezing of the account is actually implicit in the form Plaintiff signed. If the
state can collect the funds only when they exceed $10, not freezing his account would allow an
inmate to artificially keep his account below $10 for all eternity, thus preventing the state from ever
recovering the filing fee. It is implicit in the form, and explicit in the statute, that the state may
prevent the inmate from artificially depleting the funds it is owed. The fact that it is not explicit on
the form Plaintiff signed does not give rise to some sort of due process claim.
Plaintiff also argues the freezing of his account constituted an illegal seizure. Again,
however, Plaintiff looks solely at the freezing aspect without considering the context in which it
occurs. As described above, freezing an account is part of a process Plaintiff himself initiated by
asking to proceed in forma pauperis on his appeals. He signed a form indicating that the fees would
be withdrawn from his account. It is not as though the state is simply seizing his property and
taking it for no purpose. It is instead taking it to pay for services that the Plaintiff himself desired.
(In fact, the state is giving him an interest-free loan to pay the fees.) That is no more a seizure than
a fee paid upon entrance to a state park.
In addition, it is clear that the Fourth Amendment provides little protection in the prison
environment. As the Ninth Circuit has recognized, “An inmate's fourth amendment rights are
among the rights subject to curtailment. In particular, the fourth amendment does not protect an
inmate from the seizure and destruction of his property. . . . Hence it cannot protect an inmate from

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the conversion of his property.” Taylor v. Knapp, 871 F.2d 803, 806 (9th Cir. 1989). See Jackson
v. SCI-Camp Hill, 2012 WL 3990888, *6 (M.D. Pa., September 11, 2012) (collecting cases).
Finally, Plaintiff suggests that he has a claim under the Takings Clause because he has been
permanently deprived of money. The permanent deprivation of money is not what constitutes a
Takings claim. If that were true, then any taxpayer or payer of filing fees would have such a claim.
The Constitution does not prohibit the government from taking money in the payment of legitimate
fees or levies. Here, as a condition of allowing Plaintiff to proceed without prepayment of his filing
fee, the government seized his account. That is not a taking.
The motion to dismiss is GRANTED. The motion to appoint counsel is DENIED. The
case is DISMISSED with prejudice.
SO ORDERED this 22nd day of April, 2014.

s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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