Jurjens, Ralph v. County Of La Crosse, Wisconsin et al

Filing 6

ORDER on ifp request: Initial partial filing fee of $ 64.00 assessed. (Initial partial filing fee due 7/22/2013.) Plaintiff's 4 motion to use release account funds to pay the initial partial payment he has been assessed in this case is GRANTED in part as explained in this order. Plaintiff's 5 motion for appointment of counsel is DENIED without prejudice to reconsideration. Signed by Magistrate Judge Peter A. Oppeneer on 6/27/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

RALPH H. JURJENS, III,
Plaintiff,

ORDER
13-cv-455-wmc

v.
COUNTY OF LA CROSSE, WISCONSIN, et al.,
Defendants.

Plaintiff Ralph Jurjens, III, a prisoner incarcerated in the Wisconsin Department of
Corrections at the Columbia Correctional Institution, has submitted a proposed civil action
under 42 U.S.C. § 1983. With the exception of habeas corpus proceedings, the fee for civil
actions filed after May 1, 2013 is $400 unless a litigant qualifies as indigent under the federal
in forma pauperis statute, 28 U.S.C. § 1915(a), in which case the fee is $350. Plaintiff has filed
a certified copy of his inmate trust fund account statement in support of his motion for leave
to proceed in forma pauperis in this case. (Dkt. # 2, # 3). After considering the motion and
supporting documentation, the court concludes that plaintiff qualifies for indigent status for
reasons set forth briefly below.
Because plaintiff is incarcerated, his case is governed by the Prisoner Litigation Reform
Act (PLRA), 28 U.S.C. § 1915(b), which requires indigent inmates to pay by installment the
entire filing fee for civil actions and appeals. The federal in forma pauperis statute does not permit
a court to waive a prisoner’s entire obligation to pay filing fees, but it does allow a qualifying
individual to proceed without prepaying some or all of the filing fee. To determine whether a
prisoner qualifies for indigent status for purposes of the PLRA, this court applies the formula set
forth in 28 U.S.C. § 1915(b)(1). According to this formula, a prisoner requesting leave to

proceed in forma pauperis must prepay 20% of the greater of the average monthly balance or the
average monthly deposits made to his prison account in the six-month period immediately
preceding the filing of the complaint. In other words, he must make an initial partial payment
of the filing fee before the court will consider his complaint. Thereafter, he shall be required to
make monthly installment payments from his trust fund account. 28 U.S.C. § 1915(b)(2).
Using information for the relevant time period from plaintiff’s trust fund account
statement, 20% of the average monthly deposits to plaintiff’s account is $16.43, but 20% of
plaintiff’s average monthly balance is $64.00. Because the greater of the two amounts is 20%
of the average monthly balance, or $64.00, this is the amount plaintiff will be assessed as an
initial partial payment of the filing fee. For this case to proceed, plaintiff must submit this
amount on or before July 22, 2013.
Plaintiff has filed a motion to use his inmate release account to pay the filing fee in this
case. (Dkt. #4). The federal in forma pauperis statute suggests that prison officials are required
to use a prisoner’s release account to satisfy an initial partial payment if no other funds are
available, Carter v. Bennett, 399 F. Supp. 2d 936, 936-37 (W.D. Wis. 2005), and the State of
Wisconsin has conceded that the PLRA, 28 U.S.C. § 1915(b)(1), supersedes any restrictions
state law imposes on the availability of funds in a prisoner’s release account. Therefore, if
sufficient funds do not exist in plaintiff’s regular account to pay his initial partial payment, he
should be allowed to use his release account to pay some or all of the assessed amount. This
does not mean that plaintiff is free to ask prison officials to pay all of his filing fee from his
release account. The only amount plaintiff must pay at this time is the $64.00 initial partial
payment. Before prison officials take any portion of that amount from plaintiff’s release

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account, they may first take from plaintiff’s regular account whatever amount up to the full
amount plaintiff owes. Plaintiff should show a copy of this order to prison officials to ensure
that they are aware they should send plaintiff’s initial partial payment to this court.
In addition, the court notes that plaintiff has filed a motion for “appointment of
counsel.” (Dkt. #5). It is well established that civil litigants have no constitutional or statutory
right to the appointment of counsel. See, e.g., Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir.
1997); Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). The most a
court can do is determine whether to recruit counsel pro bono to assist an eligible plaintiff who
proceeds under the federal in forma pauperis statute. See 28 U.S.C. § 1915(e)(1) (“The court may
request an attorney to represent any person unable to afford counsel.”); Pruitt v. Mote, 503 F.3d
647, 653-54 (7th Cir. 2007) (en banc) (noting that, at most, the federal IFP statute confers
discretion “to recruit a lawyer to represent an indigent civil litigant pro bono publico”). In other
words, a reviewing court only has discretion to recruit a volunteer. Ray, 706 F.3d at 867. Until
the court has screened the complaint as required by the PLRA, 28 U.S.C. § 1915A, any motion
requesting the assistance of volunteer counsel must be denied as premature. The court will
reconsider plaintiff’s request after it has completed the screening process.

ORDER
IT IS ORDERED that:
1.

The motion filed by plaintiff Ralph H. Jurjens, III for leave to proceed without
prepayment of fees (Dkt. # 2) is GRANTED.

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2.

Plaintiff is assessed $64.00 as an initial partial payment of the $350 fee for filing
this case as an indigent litigant. He shall submit a check or money order made
payable to the “Clerk of Court” in the amount of $64.00 on or before July 22,
2013. Plaintiff is advised that, if he fails to comply as directed or show
cause of his failure to do so, the court will assume that he does not wish
to proceed and this case will be dismissed without further notice pursuant
to Fed. R. Civ. P. 41(a).

3.

Plaintiff’s motion to use release account funds (dkt. #4) to pay the initial partial
payment he has been assessed in this case is GRANTED in part as explained in
this order.

4.

Plaintiff’s motion for appointment of counsel (Dkt. #5) is DENIED without
prejudice to reconsideration.

5.

No further action will be taken in this case until the clerk’s office receives
plaintiff’s initial partial filing fee as directed above and the court has screened the
complaint as required by the PLRA, 28 U.S.C. § 1915A. Once the screening
process is complete, a separate order will issue as soon as practicable depending
on the demands of this court’s heavy docket.

Entered this 27th day of June, 2013.
BY THE COURT:

/s/
PETER OPPENEER
Magistrate Judge

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