Garner, Oscar v. Kirby

Filing 68

ORDER denying 65 Motion for Use of Release Account Funds to pay the $505 appeal filing fee. The clerk of court is directed to notify plaintiff's institution of its obligation to deduct monthly payments until the filing fee has been paid in full. Signed by District Judge James D. Peterson on 8/22/2017. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
OSCAR GARNER,
Plaintiff,
ORDER
v.
14-cv-545-jdp
App. No. 17-2070

OFFICER KIRBY,
Defendant.

On June 14, 2017, I denied plaintiff Oscar Garner’s motion for leave to proceed in
forma pauperis on appeal and found that the appeal was not taken in good faith. Garner then
filed a motion to use release account funds to pay his entire $505 appeal filing fee. Dkt. 65.
Before I entered a ruling on Garner’s motion, the court of appeals dismissed Garner’s appeal
for failure to pay the filing fee. Dkt. 66. The court of appeals directed the clerk of this court
to collect the filing fee from Garner’s trust fund account “using the mechanism of Section
1915(b).” Id.
Garner must pay the full $505 filing fee because when a prisoner files a notice of
appeal in addition to a motion for leave to proceed in forma pauperis on appeal, as Garner did
in this case, he signals “an unconditional desire to appeal whether or not the fee will be
deferred [and] irrevocably incurs an obligation to pay the fee.” Newlin v. Helman, 123 F.3d
429, 433 (7th Cir. 1997), overruled on other grounds by Walker v. O’Brien, 216 F.3d 626, 634
(7th Cir. 2000). The full appeal filing fee “may be collected from the prisoner’s trust account
using the mechanism of § 1915(b)” of the Prisoner Litigation Reform Act, even if the appeal
is dismissed for failure to pay the fee. Id. at 434. Presumably, the appeals court intended this

court to collect 20 percent of Garner’s average monthly income each month under
§ 1915(b)(2) until the full filing fee has been paid. I will direct the clerk of court to notify
Garner’s institution of its obligation to deduct monthly payments until the filing fee has been
paid in full.
That leaves Garner’s motion for use of his release account funds. It is up to prison
officials to decide how to apply the release-account regulations; federal courts generally
cannot tell state officials how to apply state law. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89 (1984). There is no federal law permitting this court to require state
officials to submit an entire appellate filing fee by accessing a prisoner’s release account
funds. It is only when a prisoner’s general account has insufficient funds to pay an initial
partial filing fee payment that § 1915(b) permits this court to order an institution to access a
prisoner’s release account funds to satisfy that payment. See, e.g., Mosby v. Wommack, No. 08cv-677, 2009 WL 2488011 (W.D. Wis. Aug. 12, 2009) (“[W]ith the exception of initial
partial payments, [federal district courts] do not have the authority to tell state officials
whether and to what extent a prisoner should be able to withdraw money from his release
account.”); see also Artis v. Meisner, No. 12-cv-589, 2015 WL 5749785, at *5-6 (W.D. Wis.
Sept. 30, 2015) (“Absent some authority requiring the prison to disburse [plaintiff’s] release
account funds, the court declines to interfere in the administration of Wisconsin state prisons
. . . .”). So before Garner’s appeal was dismissed, I would have denied his motion because I
would not have had the authority to grant access to his release account funds for payment of
his filing fee.
But now the § 1915(b) mechanism has come into play, although not because Garner

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has been assessed an initial partial payment. As the Seventh Circuit has explained, “[t]he
partial-prepayment mechanism under § 1915(b) applies only when a prisoner has been
allowed to proceed in forma pauperis,” Newlin, 123 F.3d at 432, and I denied Garner leave to
proceed in forma pauperis. Instead, only § 1915(b)(2), the provision governing the collection
of the balance of the filing fee, applies to Garner’s case. See Carter v. Bennett, 399 F. Supp. 2d
936, 936 (W.D. Wis. 2005). That provision does not permit this court to order an
institution to access a prisoner’s release account funds to satisfy the monthly payment. See id.
at 937 (“[N]othing in the fee collection provision of § 1915 can be read as requiring the state
to allow a prisoner to pay off the balance of a federal court filing fee from money carried over
several months in his release account . . . .”). So I will deny Garner’s motion, and the
monthly payments will be drawn from his trust account.

ORDER
IT IS ORDERED that:
1. Plaintiff Oscar Garner’s motion for use of release account funds to pay the $505
appeal filing fee, Dkt. 65, is DENIED.
2. The clerk of court is directed to notify plaintiff’s institution of its obligation to
deduct monthly payments from Garner’s account until the filing fee has been paid
in full.
Entered August 22, 2017.

BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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