Riley v. Franke et al

Filing 12

ORDER signed by Judge J.P. Stadtmueller on 7/27/2017: VACATING 10 the 7/24/2017 Judgment of Dismissal in this action; GRANTING in part and DENYING in part 11 Plaintiff's Motion for Order to Use Release Account to Pay Filing Fee; and ORDER ING Secretary of Wisconsin DOC or designee to release $13.49 from Plaintiff's release account for payment of initial partial filing fee in this matter. (cc: all counsel, via mail to Shawn Riley and Warden at Wisconsin Secure Program Facility) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHAWN RILEY,
Plaintiff,
v.

Case No. 17-CV-891-JPS

C.O. FRANKE, LT. CAMPBELL,
CAPTAIN SCHULTZ, SGT. FRANCOIS,
CATHY FRANCOIS, NURSE VAN
VERKINTER, NURSE TREMEL, and
JANE DOE,

ORDER

Defendants.
Plaintiff, who is incarcerated at the Wisconsin Secure Program
Facility, filed a pro se complaint under 42 U.S.C. § 1983, alleging that his
civil rights were violated. (Docket #1). On July 24, 2017, the Court
dismissed this action for Plaintiff’s failure to pay his initial partial filing
fee (“IPFF”). (Docket #9). Plaintiff then filed a motion on July 26, 2017,
asking that the Court tap into his prison release account to satisfy the
filing fee in this case. (Docket #11). On Plaintiff’s representation that his
release account has sufficient funds to cover the IPFF, the Court will reopen this matter and order that a disbursement be made from his release
account for that purpose.
However, the Court can only order that the IPFF be paid from the
release account; it cannot order payment of the entire $350 balance of the
filing fee from that account. The Court has the authority to order
disbursements from a prisoner’s release account for payment of an IPFF.
See 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]”).
The 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 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-

2

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 Plaintiff’s
request to pay the full filing fee from his release account. After the Court
receives payment of the IPFF, it will screen Plaintiff’s complaint and order
that the balance of the fee be collected from his prison trust account as
provided in 28 U.S.C. § 1915(b).
Accordingly,
IT IS ORDERED that the July 24, 2017 judgment of dismissal of
this action (Docket #10) be and the same is hereby VACATED;
IT IS FURTHER ORDERED that Plaintiff’s motion to use his
release account to pay the filing fee in this matter (Docket #11) be and the
same is hereby GRANTED IN PART and DENIED IN PART;
IT IS FURTHER ORDERED that the Secretary of the Wisconsin
Department of Corrections or his designee shall release $13.49 from
Plaintiff’s release account for payment of the initial partial filing fee in this
matter; and
IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the agency where Plaintiff is confined.
Dated at Milwaukee, Wisconsin, this 27th day of July, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

3