Beamon v. Wilke
Filing
91
ORDER signed by Judge J.P. Stadtmueller on 1/26/2017 DENYING 90 Plaintiff's Motion for Order for Usage of Release Account for Copies. Plaintiff to submit trust account statement as required by PLRA by 2/24/2017. (cc: all counsel, via mail to Earnest D. Beamon, Jr. at Waupun Correctional Institution) (jm) (Additional attachment(s) added on 1/26/2017: # 1 Corrected Order) (asc).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EARNEST D. BEAMON, JR.,
Plaintiff,
v.
MICHAEL A. DITTMANN, CAPTAIN
WILKE, CAPTAIN REYES, LT.
WESNER, UNKNOWN sued as Deputy
Warden, CAPTAIN TETZLAFF,
MICHELLE SMITH, and CO HEFT,
Case No. 14-CV-136-JPS
7th Circuit Case No. 16-3545
ORDER
Defendants.
On September 14, 2016, the Court entered an order granting
Defendants’ motion for summary judgment and dismissed the case in its
entirety. (Docket #75). On September 27, 2016, Plaintiff filed a notice of
appeal. (Docket #77). On January 6, 2017, the Court of Appeals granted
Plaintiff’s request to proceed in forma pauperis on appeal. (Docket #88). The
Seventh Circuit instructed this Court to assess an initial partial filing fee for
Plaintiff’s appeal. Id.
To that end, the Clerk of the Court sent Plaintiff a letter on January 6,
2017, requesting that Plaintiff send a certified copy of his prison trust account
statement for the past six months. (Docket #89). The trust account statement
is used to calculate the amount of the partial filing fee pursuant to the Prison
Litigation Reform Act (“PLRA”). See 28 U.S.C. § 1915(b)(1). The prisoner is
required under the PLRA to submit the statement after obtaining it from the
appropriate official at his or her prison. Id. § 1915(a)(2).
On January 19, 2017, Plaintiff filed a motion related to obtaining his
trust account statement. (Docket #90). He asserts that he submitted
disbursement requests to the prison business office, asking that the copying
costs for his trust account statement be taken out of his trust account. Id. He
claims that his requests were ignored because he has no money in his trust
account. Id. Plaintiff asks that this Court issue an order authorizing the prison
to draw the copying costs out of Plaintiff’s release account, which allegedly
has sufficient funds to cover those costs. Id. For the reasons explained below,
the request will be denied.
Wisconsin prisoners generally have two types of accounts: a “general
account” and a “release account.” The general account, also called a “trust
account,” receives a prisoner’s pay and other income. Wis. Admin. Code
(DOC) § 309.02(8). Prisoners can withdraw funds from this account while
they are in state custody. Id. § 309.49(2). The release account, by contrast,
cannot be accessed by a prisoner until he is released. Id. § 309.466(2). After
“crime victim and witness assistance” payments have been made, see id. §
309.465, fifteen percent of a prisoner’s pay goes into the release account until
the balance reaches $500, id. § 309.466(1).
This Court permits prisoners to delve into their release account funds
only very sparingly. In fact, the only generally recognized instance where this
is allowed is when a prisoner needs release account funds to pay an initial
partial filing fee. See Spence v. McCaughtry, 46 F. Supp. 2d 861, 863 (E.D. Wis.
1999). General litigation costs may not be paid from the release account. For
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instance, in Peace v. Larsen, Case No. 15-cv-276-pp, 2016 WL 4126470, at *1
(E.D. Wis. Aug. 2, 2016), the court held that the prisoner could not use release
account funds to pay for copying his medical records. The court reasoned that
the federal PLRA, unlike its Wisconsin counterpart, allows a prisoner to pay
filing fees associated with a civil action out of his release account but not
litigation costs. Id. at *2; Artis v. Meisner, No. 12-cv-589-wmc, 2015 WL
5749785, at *5–7 (W.D. Wis. Sept. 30, 2015) (unlike the Wisconsin PLRA,
“[t]he federal PLRA says nothing about costs”). The Third Circuit has come
to a similar conclusion, noting that Section 1915 “does not exempt litigants
from the costs of copying and filing documents; service of documents other
than the complaint; costs, 28 U.S.C. § 1915(f)(1); expert witness fees. . .; or
sanctions.” Porter v. Dep’t of Treasury, 564 F.3d 176, 180 n.3 (3d Cir. 2009)
(internal citation omitted); see also Czapiewski v. Thomas Doe, Case No.
16-cv-426, 2016 WL 1733456, at *1 (E.D. Wis. Apr. 29, 2016) (denying prisoner
use of his release account to pay for copying, postage, and other litigation
costs).
This approach is consistent with the underlying purpose of the release
account. “Denying prisoners the use of their release accounts to fund
litigation costs also is prudent given that those accounts are ‘restricted
account[s] maintained by the [DOC] to be used upon the prisoner’s release
from custody.’” Peace, 2016 WL 4126470, at *2 (quoting Artis, 2015 WL
5749785, at *6). As the court in Peace noted, “[p]ermitting a prisoner to invade
that account for litigation costs could reduce that prisoner’s likelihood of
success post-incarceration, especially if the prisoner is a frequent, or prolific,
litigant.” Id. (internal citation omitted). As the Seventh Circuit has observed,
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“like any other civil litigant, [a prisoner] must decide which of [his] legal
actions is important enough to fund.” Lindell v. McCallum, 352 F.3d 1107, 1111
(7th Cir. 2003). The inmate is not at liberty to tap into his release account for
litigation costs, and he must make his strategic calculus accordingly. See Peace,
2016 WL 4126470, at *2 .
Under this Court’s longstanding approach to such matters, it is clear
that Plaintiff cannot use his release account to pay for copying his trust
account statement. Plaintiff would certainly be permitted to pay the initial
partial filing fee for his appeal from his release account. However, that fee
cannot be calculated and assessed until Plaintiff provides the Court with his
trust account statement. The PLRA places the burden on him to obtain the
statement. See 28 U.S.C. § 1915(a)(2). The cost of copying, while probably
very slight, cannot be debited from Plaintiff’s release account under the
federal PLRA. Moreover, using Plaintiff’s release account funds in this way
would undermine the state’s purpose in providing a release account in the
first place. Put simply, the release account is not a backup litigation fund.
Instead, it exists to help the prisoner reintegrate into the community upon
release. If it is depleted through litigation, that important endeavor will be
hamstrung.
For these reasons, the Court will deny Plaintiff’s motion. He must
provide the Court a certified copy of his trust fund account statement for the
6-month period immediately preceding the filing of his notice of appeal. The
Court will grant him a short extension of time so that he can obtain the
necessary funds for that purpose or make his decision about whether to
pursue his appeal further. Plaintiff must file his trust account statement no
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later than February 24, 2017, or his appeal may be dismissed. See Robbins v.
Switzer, 104 F.3d 895, 897–98 (7th Cir. 1997) (if prisoner does not file the
required trust account statement, “a court may dismiss the appeal without
regard to his ability (or inability) to pay”).1
Accordingly,
IT IS ORDERED that Plaintiff’s motion for usage of release account
funds (Docket #90) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that Plaintiff shall submit his trust
account statement as required by the PLRA no later than February 24, 2017.
Failure to comply with this order may result in dismissal of this appeal.
Dated at Milwaukee, Wisconsin, this 26th day of January, 2017.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
1
This is not a case where the Court might assume Plaintiff is telling the
truth about his lack of funds. When the case was originally filed in early 2014, the
average monthly deposit in Plaintiff’s trust account was $97.64 and the average
monthly balance to the account was $105.41. Based on this information, the Court
assessed, and Plaintiff paid, an initial partial filing fee of $21.08. It is impossible
to say whether he has depleted his trust account funds during the pendency of this
case. As such, this case is unlike Sultan v. Fenoglio, 775 F.3d 888, 889 (7th Cir. 2015),
where it was obvious from the plaintiff’s submissions that he had a large and
persistent negative balance in his trust account. Moreover, in Sultan, the prisoner
submitted a trust account statement in compliance with the court’s order. Id. at 891.
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