Toston v. Zank et al

Filing 10

Decision and Order GRANTING 8 Plaintiff's motion to use release account to pay initial partial filing fee and DIRECTING Plaintiff to pay initial partial filing fee from release account on or before 9/30/2016. (cc: counsel; by US Mail to Plaintiff and Warden at Waupun CI)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TONI TOSTON,
Plaintiff,
v.

Case No. 16-cv-1112-pp

PAMELA ZANK,
JOHN O’DONOVAN, and
WILLIAM POLLARD,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION TO USE
RELEASE ACCOUNT TO PAY INITIAL PARTIAL FILING FEE (DKT. NO. 8)
AND DIRECTING PLAINTIFF TO PAY INITIAL PARTIAL FILING FEE FROM
RELEASE ACCOUNT ON OR BEFORE FRIDAY, SEPTEMBER 30, 2016
______________________________________________________________________________
On August 19, 2016, the court directed the plaintiff, Toni Toston, to pay
an initial partial filing fee of $53.19 on or before September 16, 2016. Dkt. No.
6. On August 24, 2016, the court received a motion from the plaintiff asking to
use funds in his release account to pay the initial partial filing fee. Dkt. No. 8.
The plaintiff submitted a certified copy of his prison trust account statement
showing that he does not have sufficient funds in his regular account to pay
the initial partial filing fee but that he has ample funds in his release account.
Dkt. No. 9.
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):

1

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 provide
the plaintiff with additional time to pay the initial filing fee from his release
account.
The court GRANTS the plaintiff’s motion to use release account to pay
initial partial filing fee. Dkt. No. 8.
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 $53.19 from the plaintiff’s release account and forward that sum to the clerk
of this court as the initial partial filing fee in this case. The warden must make
the payment on or before Friday, September 30, 2016.

2

The court will send a copy of this order to the warden at Waupun
Correctional Institution.
Dated in Milwaukee, Wisconsin this 1st day of September, 2016.

3