Baker v. Litscher et al

Filing 7

ORDER signed by Judge J.P. Stadtmueller on 10/16/2017 DENYING 2 Plaintiff's Motion to Pay the Full Filing Fee with Release Account Funds. By 11/6/2017, Plaintiff to submit a certified copy of his prisoner trust account statement for the six-month period immediately preceding the filing of the complaint. (cc: all counsel, via mail to Fontaine L. Baker, Sr. at Waupun Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
FONTAINE L. BAKER, SR.,

v.

Plaintiff,

JON E. LITSCHER, WARDEN PAUL
KEMPER, MS. VASQUEZ, MS.
FRIAIZER, DR. HAGEN, DR.
NACKER, DR. BASS, NURSE PAM,
MR. GROW, MR. TRAVIS, MR.
BISHOP, MS. DICKES, and JOHN
DOES 1 - 5,

Case No. 17-CV-1275-JPS-JPS

ORDER

Defendants.
Plaintiff Fontaine L. Baker, Sr., a prisoner representing himself, filed
a complaint in the above-captioned action. (Docket #1). Plaintiff has also
filed a motion to pay the full filing fee from his release account. (Docket #2).
The total cost of filing a civil action is $400.00, which includes the $350.00
statutory filing fee and a $50.00 administrative fee. However, the $50.00
administrative fee does not apply to persons granted leave to proceed
without prepayment of the filing fee. Pursuant to the Prison Litigation
Reform Act (“PLRA”), a prisoner plaintiff proceeding without prepayment
of the filing fee is required to pay the statutory filing fee of $350.00 for any
civil action. See 28 U.S.C. § 1915(b)(1).
Under the PLRA, the Court must assess an initial partial filing fee of
twenty percent of the average monthly deposits to the plaintiff’s account or
average monthly balance in the plaintiff’s prison account for the six-month
period immediately preceding the filing of the complaint, whichever is

greater. Id. After the initial fee is paid, the prisoner must make monthly
payments of twenty percent of the preceding month’s income until the
filing fee is paid in full. 28 U.S.C. § 1915(b)(2). “The agency having custody
of the prisoner shall forward payments from the prisoner’s account to the
Clerk of the Court each time the amount in the account exceeds $10 until
the filing fees are paid.” Id.
Plaintiff filed a copy of his trust account statement showing the
balance of his regular account and his release account for a period ending
in September 2017. (Docket #3). Plaintiff has not filed a certified copy of his
prisoner trust account statement for the six-month period immediately
preceding the filing of the complaint, as required by 28 U.S.C. § 1915(a)(2).
Instead, Plaintiff seeks to pay the full filing fee from his release account.
(Docket #2).
Plaintiff cannot use his release account funds in that manner. “A
release account is a restricted account maintained by the Wisconsin
Department of Corrections to be used upon the prisoner’s release from
custody upon completion of his sentence.” Wilson v. Anderson, Case No. 14C-798, 2014 WL 3671878 at *3 (E.D. Wis. July 23, 2014) (citing Wis. Adm.
Code § DOC 309.466). Given the purpose of the release account, federal
courts do not deem it prudent to focus on that account as the source of funds
to satisfy the filing fee payment requirements. Smith v. Huibregtse, 151 F.
Supp. 2d 1040, 1042 (E.D. Wis. 2001). 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
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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 will deny
Plaintiff’s motion to use release account funds to pay the full amount of his
filing fee.
Plaintiff must comply with the requirement that he submit a certified
copy of his prisoner trust account statement for the six-month period
immediately preceding the filing of the complaint. He must supply that
document on or before November 6, 2017, or this action will be dismissed
without prejudice for his failure to prosecute it.
Accordingly,
IT IS ORDERED that Plaintiff’s motion to pay the full filling fee with
funds in his release account (Docket #2) be and the same is hereby DENIED;
and
IT IS FURTHER ORDERED that Plaintiff shall submit a certified
copy of his prisoner trust account statement for the six-month period
immediately preceding the filing of the complaint on or before November
6, 2017.
Dated at Milwaukee, Wisconsin, this 16th day of October, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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