Borzych v. Litscher et al

Filing 8

ORDER signed by Judge Pamela Pepper on 6/30/2017 DENYING 4 Plaintiff's MOTION to Change Venue; DENYING 7 Plaintiff's MOTION to use funds from Release Account to pay civil filing fee. By 7/17/2017 plaintiff to do one of the following: (1 ) forward $400 filing fee to Clerk of Court or (2) file motion to proceed without prepayment of the filing fee with certified copy of his prison trust account for the 6 months before he filed his complaint and a motion challenging his prior stri ke and/or indicating his complaint includes allegations of imminent danger. Failure to comply will result in dismissal of this case. (cc: all counsel, via mail to Garry Borzych at Waupun Correctional Institution-with copy of court's form Request to Proceed Without Prepaying Filing Fee)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
GARRY A. BORZYCH,
Plaintiff,
v.

Case No. 17-cv-762-pp

JON LITSCHER, et al.,
Defendants.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION TO CHANGE VENUE (DKT. NO. 4),
AND DENYING PLAINTIFF’S MOTION TO USE FUNDS FROM RELEASE
ACCOUNT TO PAY CIVIL FILING FEE (DKT. NO 7)
______________________________________________________________________________
The plaintiff, Garry A. Borzych, is a state prisoner representing himself.
He is incarcerated at Waupun Correctional Institution, in Fond du Lac County.
He filed a complaint under 42 U.S.C. §1983, alleging that his civil rights were
violated. Dkt. No. 1. He also filed a motion to change venue, dkt. no. 4, and a
motion to use funds from release account to pay civil filing fee, dkt. no. 7.
First, the plaintiff asks this court to change the venue of this case to
Milwaukee, because the librarian at the prison incorrectly filed his complaint in
the Green Bay Division. Dkt. No. 4. The plaintiff asserts that it is critical that
his case be filed in Milwaukee because he wants to file a motion asking the
court to remove a “strike” he incurred years ago. Id. at 2. He believes that
venue is incorrect in the Green Bay Division and does not believe that court
has jurisdiction to hear his claims.

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The plaintiff properly submitted his complaint for electronic filing with
the United States District Court for the Eastern District of Wisconsin, and the
prison librarian properly electronically filed the complaint. The Green Bay
Division is not a separate federal court; the Eastern District of Wisconsin is one
court that is divided into the Green Bay Division and the Milwaukee Division.
In any event, even though the Green Bay Division processed the plaintiff’s
electronically filed complaint and docketed it, the case was assigned to a judge
in the Milwaukee Division. The court will deny the plaintiff’s motion to change
venue.
Second, the plaintiff filed a motion asking the court for an order allowing
him to use funds from his release account to pay the $400.00 civil filing fee.
Dkt. No. 7. A release account is a restricted account maintained by the
Wisconsin Department of Corrections, to be used when the prisoner is released
from custody after completing his sentence. Wis. Adm. Code §DOC 309.466.
While the court may order disbursement of funds from the release account for
payment of the initial partial filing fee when a prisoner files a petition for leave
to proceed without prepayment of the filing fee, the Prison Litigation Reform
Act does not require the court to invade that account for payment of the
balance. See 28 U.S.C. §1915(b)(2) (The balance of payments, after the initial
payment, is to equal “twenty percent of the preceding month’s income credited
to the prisoner's account.”). “Nothing in this language can be interpreted as
congressional intent that prisoners deplete savings or release account balances
in order to pay off their filing fee debts.” Wilson v. Anderson, 2014 WL
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3671878, at *3 (E.D. Wis. July 23, 2014) (quoting Carter v. Bennett, 399 F.
Supp. 2d 936, 937 (W.D. Wis. 2005); see also Doty v. Doyle, 182 F. Supp. 2d
750 (E.D. Wis. 2002). The court will deny the plaintiff’s motion for an order
allowing him to pay the $400.00 full filing fee from his release account.
In order to proceed, the plaintiff either must pay the $400.00 filing fee or
file a motion for leave to proceed without prepayment of the filing fee (in forma
pauperis). Under the Prison Litigation Reform Act (PLRA), a prisoner may not
bring a civil action or appeal a civil judgment in forma pauperis
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that
was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under
imminent danger of serious physical injury.
28 U.S.C. § 1915(g). The plaintiff acknowledges that he currently has three
strikes, though he indicates he would like to file a motion challenging one of
those strikes. He had not indicated that he believes he is in imminent danger of
serious physical injury, which is the exception to § 1915(g).
The court will set a deadline for the plaintiff to either (a) pay the $400.00
full filing fee or (b) file a motion for leave to proceed without prepayment of the
filing fee on the court’s form, along with a certified copy of his prison trust
account statement for the six months prior him filing his complaint. If the
plaintiff files a motion for leave to proceed without prepayment of the filing fee,
he must also file a motion challenging his prior strike and/or indicating that

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his complaint includes allegations of imminent danger. If the plaintiff takes no
action, the court may dismiss this case for failure to pay the filing fee.
The court DENIES the plaintiffs’ motion to change venue. Dkt. No. 4.
The court also DENIES the plaintiff’s motion to use funds from release
account to pay the civil filing fee for this case. Dkt. No. 7.
The court ORDERS the plaintiff to do one of the following by Monday,
July 17, 2017: (1) forward to the clerk of this court the sum of $400.00 as the
full filing fee in this case; or (2) file a motion for leave to proceed without
prepayment of the filing fee using the court’s form, along with a certified copy
of his prison trust account for the six months before he filed his complaint and
a motion challenging his prior strike and/or indicating that his complaint
includes allegations of imminent danger. The plaintiff’s failure to comply with
this order will result in dismissal of this case.
Dated in Milwaukee, Wisconsin this 30th day of June, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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