Peace v. Unknown et al

Filing 46

DECISION AND ORDER signed by Judge Pamela Pepper on 2/10/2016 GRANTING 38 Defendants' Motion to Stay Discovery on the Merits; and DENYING 30 Plaintiff's Motion to Amend Court Filing Fees. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DANIEL ANTHONY PEACE,
Plaintiff,
v.

Case No. 14-cv-1416-pp

WARDEN PAUL KEMPER, LISA AVILA,
ROBIN DIEBOLD, KIMBERLY ENGEL,
CO JONES, CO II LAMKE,
TERRY ZIEM, CO JOHN DOE 1, and
CO JOHN DOE 2,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING PLAINTIFF’S MOTION TO AMEND
COURT FILING FEES (DKT. NO. 30) AND GRANTING DEFENDANTS’
MOTION TO STAY DISCOVERY ON THE MERITS (DKT. NO. 38)
______________________________________________________________________________
On September 15, 2015, the court screening the plaintiff’s amended
complaint and allowed him to proceed on Eighth and Fourteenth Amendment
claims regarding the dissemination of information about the plaintiff’s sexual
assault, as well as First Amendment retaliation claims. Dkt, No. 25. The
defendants have filed a motion to dismiss the plaintiff’s retaliation claim and a
motion for partial summary judgment on exhaustion grounds. Dkt. Nos. 31,
34). Both of these motions are fully briefed, but the court will address them in
a separate order. There are two other motions pending in this case, the
plaintiff’s motion to amend court filing fees and the defendants’ motion to stay
discovery on the merits, which the court will address here.

1

I.

Motion to Amend Court Filing Fees
On November 6, 2015, the plaintiff filed a motion to amend court filing

fees in three of his pending cases. Dkt. No. 30. He notes that he is charged
twenty percent of his income for each of the three cases, and asks for a court
order either combining the filing fees or allowing the filing fees to be paid one
after another rather than concurrently. The plaintiff argues that he needs
access to legal research tools and supplies, both for his own cases (which
include a mandamus action in Milwaukee County Circuit Court), and his
assistance to other individuals with civil and criminal litigation. He indicates
that he also must purchase health care products with the funds in his trust
account.
The court does not have the discretion to do what the plaintiff asks.
Under 28 U.S.C. § 1915(b)(2), “[a]fter payment of the initial partial filing fee, the
prisoner shall be required to make monthly payments of 20 percent of the
preceding month’s income credited to the prisoner’s account.” (Emphasis
added.) This provision applies to each complaint or appeal the plaintiff files.
The statute does not allow the court the discretion to modify the collection
requirement. The court also notes that the fact that the plaintiff chooses to use
some of his prison income to pay for cases he has filed in state court is not
relevant to whether he has to pay the federal filing fees.
Additionally, the court notes that the plaintiff seems to be using his own
funds to pay for case law, papers, pens and correction tape to help other
inmates with their criminal and civil cases. If the plaintiff does not have
2

enough money to fund his own litigation, he should not be spending his money
assisting other inmates with theirs.
The court will deny the plaintiff’s motion to amend the court filing fees.
II.

Motion to Stay Discovery on the Merits
After filing their motion to dismiss and their motion for partial summary

judgment, the defendants filed a motion asking the court to stay all discovery
on the merits of the plaintiff’s claims pending a decision on those motions. Dkt.
No. 38. The defendants seek relief from extensive discovery requests the
plaintiff served them with just days after they filed their motions.
In Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008), the United States
Court of Appeals for the Seventh Circuit “emphasize[s] that in the ordinary case
discovery with respect to the merits should be deferred until the issue of
exhaustion is resolved.” This is not the kind of exceptional case “in which
expeditious resolution of the litigation requires that some discovery be
permitted before the issue of exhaustion is resolved.” Id.
Additionally, a pleading that fails to state a claim under Fed. R. Civ. P. 8
“does not unlock the doors of discovery for a plaintiff armed with nothing more
than conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). If, based on
the defendants’ motion, the plaintiff is not allowed to proceed on a retaliation
claim, he should not be able to conduct discovery.
At this stage, with the motion to dismiss and the motion for partial
summary judgment fully briefed, the court agrees that there is no need for the
parties to engage in discovery on the merits of the plaintiff’s claim. The court
3

will allow discovery to begin again if and when the court denies the motion to
dismiss.
III.

Conclusion
The court DENIES the plaintiff’s motion to amend court filing fees. Dkt.

No. 30. The court GRANTS the defendants’ motion to stay discovery on the
merits. Dkt. No. 38. The court will issue a separate order regarding the
defendants’ motion to dismiss plaintiff’s retaliation claim and their motion for
partial summary judgment on exhaustion grounds.
Dated in Milwaukee, Wisconsin this 10th day of February, 2016.

4