Smith v. Frame

Filing 9

ORDER signed by Judge J.P. Stadtmueller on 1/8/2018 GRANTING 8 Plaintiff's Motion to Pay Initial Partial Filing Fee with Release Account Funds and DIRECTING Wisconsin DOC to release $1.45 from Plaintiff's release account for such payment. IPFF to be paid by 1/16/2018 as previously ordered; failure to timely do so may result in dismissal of this action. (cc: all counsel, via mail to Virgil Smith and Warden at Waupun Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
VIRGIL SMITH,
Plaintiff,

v.

Case No. 17-CV-1745-JPS

B. FRAME,
Defendant.

ORDER
On December 21, 2017, Magistrate Judge Nancy Joseph ordered
Plaintiff to pay an initial partial filing fee (“IPFF”) of $1.45 pursuant to
Plaintiff’s request to proceed in forma pauperis. (Docket #6). This matter was
reassigned to this branch of the Court on January 3, 2018. On January 2,
2018, Plaintiff filed a motion to use his release account funds to pay the
IPFF. (Docket #8).
This Court has the authority to order disbursements from a
prisoner’s release account for payment of an 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]”). However, 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).
Permitting a prisoner to invade a release account for litigation costs
could detriment 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
particularly 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-CV-10, 2002 WL 32350026, at *8 (W.D.
Wis. Apr. 30, 2002).
While the Court will not permit Plaintiff to tap into his release
account for the entirety of his filing fee, or other litigation costs, it will grant
Plaintiff permission to use funds from that account solely for the purpose
of paying the IPFF. Plaintiff shall ensure that the IPFF of $1.45 is paid to the
Clerk of the Court on or before January 16, 2018, the deadline originally set
by Magistrate Joseph. Failure to pay the IPFF within the specified time
period may result in dismissal of the action with prejudice pursuant to Civil
Local Rule 41(c) and Federal Rule of Civil Procedure 41(b).
Accordingly,
IT IS ORDERED that Plaintiff’s motion to pay his initial partial
filing fee with release account funds (Docket #8) be and the same is hereby
GRANTED;
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IT IS FURTHER ORDERED that the Secretary of the Wisconsin
Department of Corrections or his designee shall release $1.45 from
Plaintiff’s release account for payment of the initial partial filing fee in this
matter; and
IT IS FURTHER ORDERED that copies of this order be sent to the
officer in charge of the agency where Plaintiff is confined.
Dated at Milwaukee, Wisconsin, this 8th day of January, 2018.
BY THE COURT:

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

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