Durley v. Pitzlin et al
ORDER signed by Chief Judge Pamela Pepper on 11/17/2022. #7 Plaintiff's motion for extension of time to file magistrate judge consent form DENIED AS MOOT. #13 Plaintiff's motion to waive initial partial filing fee DENIED; by end of day 12/2/2022, plaintiff must either pay $1.87 initial partial filing fee or file motion to voluntarily dismiss case. He is responsible for full $350 filing fee no matter which option he chooses. (cc: all counsel and mailed to Warden and Timothy Durley at Waupun Correctional Institution)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 22-cv-1127-pp
WHITNEY PITZLIN, ALLISON HOHENSTERN,
JESSICA HOSFELP, JENNA HILAND,
ASHLEY HASELEU, ROBERT WEINMAN,
DR. JEAN PIERRE, RN VICK GWENDOLYN
and ANN YORK,
ORDER DENYING PLAINTIFF’S MOTION TO WAIVE INITIAL PARTIAL
FILING FEE (DKT. NO. 13) AND DENYING AS MOOT PLAINTIFF’S
REQUEST FOR EXTENSION OF TIME TO FILE MAGISTRATE JUDGE
CONSENT FORM (DKT. NO. 7)
Timothy Durley, who is incarcerated at Waupun Correctional Institution
and is representing himself, filed a complaint under 42 U.S.C. §1983, dkt. no.
1, and a motion for leave to proceed without prepaying the filing fee, dkt. no. 2.
October 13, 2022, the court received the plaintiff’s institutional trust fund
account statement for the preceding six months, which shows that as of
September 30, 2022, he had $0.00 in his regular account and of $0.24 in his
release account. Dkt. No. 11. On October 17, 2022, based on the information
in the trust account statement, the court ordered the plaintiff to pay an initial
partial filing fee of $1.87. Dkt. No. 12.
On October 26, 2022, the court received from the plaintiff a motion to
waive the requirement that he pay the $1.87 initial partial filing fee. Dkt. No.
Case 2:22-cv-01127-PP Filed 11/17/22 Page 1 of 6 Document 14
13. The plaintiff asserts that from May to September 2022 his account had
only “0.00 – 0.24 cents in it.” Id. at 1. He says that his “loved one’s ask[ed him]
if [he] want them to put money on [his] book’s, in which [he] say no, just buy
[him] stamps—paper, etc. misc stuff from J.L. Marcus.” Id. The plaintiff asks
the court “for permission to be not required[d] to pay the filing fee.” Id.
The court must assess an initial partial filing fee each time an
incarcerated person files a case. 28 U.S.C. §1915(b)(1); see also Bruce v.
Samuels, 577 U.S. 82, 89–90 (2016). But the court may waive an incarcerated
plaintiff’s requirement to pay an initial partial filing fee if he lacks both the
“assets” and the “means” to pay it. See 28 U.S.C. §1915(b)(4). The Seventh
Circuit has explained that “[i]t is not enough that the prisoner lack assets on
the date he files.” Newlin v. Helman, 123 F.3d 429, 435 (7th Cir. 1997),
overruled in part on other grounds by Walker v. O’Brien, 216 F.3d 626, 628–29
(7th Cir. 2000), and Lee v. Clinton, 209 F.3d 1025, 1027 (7th Cir. 2000). If that
were the case, an incarcerated person could avoid paying the initial partial
filing fee by spending what is in his trust account before filing his lawsuit. The
court construes an incarcerated person’s “means” broadly; an incarcerated
person may lack “assets” but still have “means” to pay the fee. See id. (“A
prisoner with periodic income has ‘means’ even when he lacks ‘assets.’”).
The court recently granted the plaintiff’s motion to waive the initial
partial filing fee in another of his cases because, as of July 2022, he had no
money in his institutional account and only $0.24 in his release account. Case
No. 22-cv-706-pp, Dkt. No. 14 at 2–4. The court concluded in that case that
Case 2:22-cv-01127-PP Filed 11/17/22 Page 2 of 6 Document 14
the plaintiff had showed that “he has no assets, no cash or bank account and
no source of income.” Id. at 3. The court found “that the plaintiff has neither
the assets nor the means to pay the initial partial filing fee, and it [did] not
require him to pay one.” Id.
The plaintiff’s institutional trust account statements through September
2022 show that he still has no money in his regular account and still has only
$0.24 in his release account. That statement, and the plaintiff’s motion for
leave to proceed without prepaying the filing fee, suggest that he still “has no
assets, no cash or bank account and no source of income” with which to pay
the initial partial filing fee. But the plaintiff’s motion shows that, although he
does not currently have the assets to pay the initial partial filing fee, he does
have the means—his loved ones who have sent him money in the past and who
asked him if he wanted them to send him more money. The plaintiff says that,
despite the fact that his loved ones offered to put money in his account, he told
them not to—presumably so that it couldn’t be used to pay filing fees. The
plaintiff said that instead, he asked them to buy him stamps, paper and “misc
stuff from J.L. Marcus,” a company which sells medical clothing and footwear.
Again, the court construes the plaintiff’s “means” broadly. Even though
the plaintiff has no income or cash of his own, he has loved ones outside of the
institution who have sent him money in the past and are willing to do so now.
The fact that the plaintiff has people who send him money to pay for stamps,
paper and items from J.L. Marcus shows he has the “means” to pay the $1.87
initial partial filing fee for this case, even though he does not currently have the
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“assets” in his trust account. See Collins v. State of Wisconsin, No. 20-cv-521pp, 2020 WL 6361860, at *2 (E.D. Wis. Oct. 29, 2020) (“While the plaintiff does
not have a job and is not generating his own income, he is receiving money
from his family, and this qualifies as an ‘asset’ and ‘means’ to pay under
§1915(b)(4).”). The court will not grant the plaintiff’s motion and will not waive
the requirement that he pay the $1.87 filing fee in this case. Had the court
known when it decided the plaintiff’s motion to waive payment of the initial
partial filing fee in Case No. 22-cv-706 that the plaintiff had advised his loved
ones not to put money on his account but to use that money to buy him things
instead, it likely would not have granted that motion, either.
This is the plaintiff’s twelfth civil rights case since December 2020, and
he since has filed a thirteenth (Case 22-cv-1293, filed Nov. 1, 2022). The court
has advised the plaintiff more than once that he is required pay a new $350
filing fee for each case he files and that the prison will automatically deduct
money from his institutional trust account to cover that cost, even in cases
where the court has waived his requirement to pay an initial partial filing fee.
The plaintiff’s trust account statement shows that the reason he does not have
funds to pay the initial partial filing fee in this case is because he is paying
filing fees in his other cases. Until those fees are paid in full, the prison will
continue to deduct money from the plaintiff’s institutional account every time
he receives a deposit, likely leaving him with little to no money to purchase
stamps, paper and commissary items or to fund his lawsuits.
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As explained above, the court may not dismiss a lawsuit filed by an
incarcerated person who lacks the ability to pay an initial partial filing fee. See
28 U.S.C. §1915(b)(4). But “if the court finds that the prisoner is unable to pay
the partial filing fee at the time of collection because he intentionally depleted
his account to avoid payment, the court in its sound discretion may dismiss
the action.” Thomas v. Butts, 745 F.3d 309, 312 (7th Cir. 2014) (citations and
internal quotation omitted). The court is not required to waive payment of an
initial partial filing fee for an incarcerated person who “does not have the ability
to pay the initial partial filing fee . . . because of his past litigation choices.”
Goodvine v. Adams, No. 21-cv-826-pp, 2022 WL 204626, at *2 (E.D. Wis. Jan.
24, 2022). The court will not waive the plaintiff’s requirement to pay an initial
partial filing fee in future lawsuits he files if the only reason he cannot afford
pay that fee is because his trust account funds have been depleted to pay the
fees that he owes in the other thirteen cases he has filed—especially if he tries
to avoid the obligation to pay the filing fees by instructing his loved ones not to
replenish his account.
The plaintiff has two options: (1) he can ask the court to voluntarily
dismiss this lawsuit and can refile it later (as long as it isn’t barred by the
relevant statutes of limitations), or (2) he can pay the $1.87 initial partial filing
fee. If the plaintiff wants to continue the case, he must pay the initial partial
filing fee by the deadline the court sets below. If the court does not receive the
$1.87 or a request to voluntarily dismiss the case by the deadline below, the
court will dismiss the plaintiff’s case on the next business day without further
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notice or hearing. Whichever option the plaintiff chooses, he remains
obligated to pay the full $350 filing fee.
On October 4, 2022, the court received from the plaintiff a motion for an
extension of time to mail the court his form either consenting or refusing to
consent to a magistrate judge deciding his case. Dkt. No. 7. On October 12,
2022, however, the court received the plaintiff’s magistrate consent form. Dkt.
No. 10. The court will deny as moot the plaintiff’s motion for an extension of
time to file that form.
The court DENIES the plaintiff’s motion to waive payment of the initial
partial filing fee. Dkt. No. 13. The plaintiff must pay the $1.87 initial partial
filing fee or file a motion to voluntarily dismiss this case in time for the court to
receive it by the end of the day on December 2, 2022. If the court does not
receive either the $1.87 initial partial filing fee or a motion to voluntarily
dismiss the case by the end of the day on December 2, 2022, the court will
dismiss this lawsuit without prejudice, as stated in its previous order. Dkt. No.
12 at 4. The plaintiff will remain obligated to pay the $350 filing fee even if the
court dismisses the case for failure to pay the initial partial filing fee.
The court DENIES AS MOOT the plaintiff’s motion for an extension of
time to mail the court his magistrate judge consent form. Dkt. No. 7.
Dated at Milwaukee, Wisconsin this 17th day of November, 2022.
BY THE COURT:
HON. PAMELA PEPPER
Chief United States District Judge
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