Brown v. Eck

Filing 13

ORDER signed by Judge J. P. Stadtmueller on 12/5/2016. Defendant to file responsive pleading to 10 amended complaint within 60 days. 11 Plaintiff's MOTION to stay and to pay full filing fee from release account DENIED. (cc: all counsel, via mail to Devin L. Brown at Oshkosh Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEVIN L. BROWN,
Plaintiff,

Case No. 16-CV-979-JPS

v.
C.O. ECK,
Defendant.

ORDER

On September 29, 2016, the Court screened the plaintiff’s original
complaint. (Docket #9). The Court found that the plaintiff failed to state any
viable claims for relief, but it permitted him to amend his complaint. Id. at 45. The plaintiff submitted an amended complaint on October 25, 2016.
(Docket #10).
As noted in the first screening order, the Court is required to screen
complaints brought by prisoners seeking relief against a governmental entity
or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
Court must dismiss a complaint, or portion thereof, if the prisoner has raised
claims that are legally “frivolous or malicious,” that fail to state a claim upon
which relief may be granted, or that seek monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b). All of the standards
cited in the first screening order remain applicable here. (Docket #9 at 1-3).
The plaintiff’s complaint contains substantial legal argument and
citations which the Court must ignore. The factual allegations, however,
establish the following. On September 13, 2015, soon after 2:00 a.m., the
plaintiff told the defendant that he was having back and chest pain and
difficulty breathing. (Docket #10 at 1). The defendant allegedly told the
plaintiff that the nurses were gone for the night, so there was no one to see

him. Id. The plaintiff alleges that he suffered “unbearable pain for hours,
barley [sic] to breathe with throbbing back and chest pain. Id. at 2. The
plaintiff’s exhibits show that he was seen by a nurse the next day, September
14, 2015, who appears to have concluded that he had no detectable medical
condition. (Docket #12-1).
The Court finds that, given the very liberal construction required of
prisoner complaints at the screening stage, the plaintiff has stated a claim for
deliberate indifference. The plaintiff has alleged that he had substantial chest
pain, which could be considered a serious medical condition, and that the
defendant flatly refused to contact medical professionals to address it. See
Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). He has also alleged that he
suffered severe pain as a result of the delay in treatment. See Smith v. Knox
Cnty. Jail, 666 F.3d 1037, 1039-40 (7th Cir. 2012). It appears that these facts are
on the lowest end of the spectrum for a cognizable deliberate indifference
claim, but that cannot be a basis to dismiss this action at the screening stage.
The Court finds, then, that the plaintiff may proceed on the following
claim: the defendant’s deliberate indifference to the plaintiff’s serious medical
needs, pursuant to the Eighth Amendment, based on the parties’ conduct on
the morning of September 13, 2015.
The Court also addresses the plaintiff’s other pending motion. On the
same day he submitted his amended complaint, the plaintiff filed a motion
containing two separate requests. (Docket #11). The first portion of the
motion requests a “stay” on the amended complaint so that the plaintiff
could acquire additional exhibits. Id. That request will be denied as moot, as
the exhibits have been received. (Docket #12). The second portion referenced
a previous motion to pay his filing fee from his release account. (Docket #11
and #6). The Court denied the earlier motion as moot, but the plaintiff now
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clarifies that he wants permission to pay his full filing fee, not just the initial
partial fee, from his release account. (Docket #11).
While it is true that this Court has the authority to order
disbursements from a prisoner’s release account for payment of an initial
partial filing fee (“IPFF”), see, e.g., Doty v. Doyle, 182 F. Supp. 2d 750, 751 (E.D.
Wis. 2002) (noting that “both the Wisconsin Prison Litigation Reform
Act…and the federal Prison Litigation Reform Act [(“PLRA”)]…authorize
the courts to order that…a prisoner’s release account be made available [to
pay an IPFF]”), this Court lacks the authority—statutory or otherwise—to
order that a prisoner may tap into his release account to pay current (or
future) litigation costs. Cf. Wilson v. Anderson, No. 14-CV-0798, 2014 WL
3671878, at *3 (E.D. Wis. July 23, 2014) (declining to order that a prisoner’s
full filing fee be paid from his release account, “[g]iven the [DOC’s] rationale
for segregating funds into a release account” and the absence of any statutory
authority compelling the court to do so).
Notwithstanding the foregoing, denying prisoners the use of their
release accounts to fund litigation costs is also prudent given that those
accounts are “restricted account[s] maintained by the [DOC] to be used upon
the prisoner’s release from custody.” Id. Permitting a prisoner to invade that
account for litigation costs could be a detriment to that prisoner’s likelihood
of success post-incarceration, see Wis. Adm. Code. § DOC 309.466 (stating
that disbursements from a prisoner’s release account are authorized “for
purposes that will aid the inmate’s reintegration into the community”),
especially if the prisoner is overly litigious. As the Seventh Circuit has
instructed, “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); thus, if a prisoner concludes that “the limitations
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on his funds prevent him from prosecuting [a] case with the full vigor he
wishes to prosecute it, he is free to choose to dismiss it voluntarily and bring
it at a later date.” Williams v. Berge, No. 02-CV-10, 2002 WL 32350026, at *8
(W.D. Wis. Apr. 30, 2002). He is not free, however, to tap into his release
account to cover those legal costs. In light of the foregoing, the Court is
obliged to deny the plaintiff’s request to pay the filing fee from his release
account.
Accordingly,
IT IS ORDERED that pursuant to an informal service agreement
between the Wisconsin Department of Justice and this Court, copies of
plaintiff’s amended complaint (Docket #10) and this order will be
electronically sent to the Wisconsin Department of Justice for service on the
state defendant;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court, the
defendant shall file a responsive pleading to the amended complaint within
sixty (60) days of receiving electronic notice of this order;
IT IS FURTHER ORDERED that the plaintiff’s motion to stay and to
pay his full filing fee from his release account (Docket #11) be and the same
is hereby DENIED; and
IT IS FURTHER ORDERED that a copy of this order be sent to the
warden of the institution where the inmate is confined.
Dated at Milwaukee, Wisconsin, this 5th day of December, 2016.
BY THE COURT:
s/ J. P. Stadtmueller
J.P. Stadtmueller
U.S. District Judge
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