Peace v. Lewis et al

Filing 18

DECISION AND ORDER signed by Judge Pamela Pepper on 9/14/2015 GRANTING 7 Motion for Use of Prison Release Account to Pay Partial Filing Fee and DIRECTING Plaintiff to Pay Initial Partial Filing Fee of $9.62 on or before Friday, 10/9/2015. (cc: all counsel; by US Mail to Plaintiff and Warden at Waupun CI) (pwm)

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

Case No. 15-cv-561-pp

SARA B. LEWIS, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR USE OF
PRISON RELEASE ACCOUNT TO PAY PARTIAL FILING FEE (DKT. NO. 7)
AND DIRECTING PLAINTIFF TO PAY INITIAL PARTIAL FILING FEE OF
$9.62 ON OR BEFORE FRIDAY, OCTOBER 9, 2015
______________________________________________________________________________
On May 21, 2015, the court directed the plaintiff, David Anthony Peace,
to pay an initial partial filing fee of $9.62 on or before June 10, 2015. Dkt. No.
11. The plaintiff did not timely pay the fee. Ordinarily, the court would issue an
order to show cause directing the plaintiff to explain why he did not pay the
initial partial filing fee. See Thomas v. Butts, 745 F.3d 309, 312-13 (7th Cir.
2014) (courts required to learn before dismissal whether the prisoner is at fault
for the nonpayment of the initial fee). In this case, however, the plaintiff has
filed a motion for the use of his prison release account to pay his initial partial
filing fee. Dkt. No. 7.
The PLRA requires courts to collect filing fees from “prisoner’s account.”
28 U.S.C. § 1915(b). As stated in Doty v. Doyle, 182 F. Supp. 2d 750 (E.D. Wis.
2002):

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the courts have found that when a prisoner’s general
fund has insufficient funds to pay filing fees, both
the . . . Wisconsin PLRA . . . and the . . . federal PLRA
. . . authorize the courts to order that the money in a
prisoner’s release account be made available for that
purpose. Spence v. Cooke, 222 Wis. 2d 530, 537 (Ct.
App. 1998); Spence v. McCaughtry, 46 F. Supp. 2d
861 (E.D. Wis. 1999). (All the same, in deference to the
Wisconsin public policy behind release accounts,
judges of this district do not routinely look to
prisoners’ release accounts when they assess initial
partial filing fees under the federal PLRA, Smith v.
Huibregtse, 151 F. Supp. 2d 1040, 1042 (E.D. Wis.
2001), although they will do so upon request from the
prisoner, as in Spence v. McCaughtry.)
Id. at 751.
The plaintiff has sufficient funds in his release account to pay the initial
partial filing fee for this case, and the court respects the plaintiff’s choice to use
his release funds to pay his initial partial filing fee. The court also will allow the
plaintiff additional time to request the disbursement of funds from his release
account.
The court GRANTS the plaintiff’s motion for order allowing use of prison
release account to pay initial partial filing fee (Dkt. No. 7).
The court ORDERS that, upon the plaintiff’s request, the warden at the
correctional institution where the plaintiff is incarcerated shall withdraw a total
of $9.62 from the plaintiff’s release account and forward that sum to the Clerk
of this Court as the initial partial filing fee in this action. The warden must
send the payment in time for the court to receive it on or before Friday,
October 9, 2015.

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The court will send a copy of this order to the warden at Waupun
Correctional Institution.
Dated at Milwaukee this 14th day of September, 2015.

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