Neal, Dorian v. Richardson, Reed et al

Filing 6

ORDER denying 5 Motion for Reconsideration. Plaintiff is to submit the $400 filing fee or motion for ifp and Trust Fund Account Statement by 5/18/2017. Signed by Magistrate Judge Peter A. Oppeneer on 4/26/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DORIAN V. NEAL,
Plaintiff,

ORDER

v.
Case No. 17-cv-146-wmc
REED RICHARDSON, JASON
ACTHERBERG, and BRAD LUNMARK,
Defendants.

On March 10, 2017, I denied plaintiff Dorian V. Neal’s Motion to Authorize
Payment of Filing Fees from Both Trust and Release Accounts because there is no federal
authority permitting this court to access his release account to pay his full filing fee. (Dkt.
#3.) I therefore directed plaintiff to either pay the full filing fee or submit a motion for leave
to proceed without prepayment by March 31, 2017. Plaintiff has done neither, and instead
on March 24, 2017, he filed a motion seeking reconsideration of that order, on the ground
DOC policy (DAI 309.45.02(A)) explicitly permits the WDOC to pay his filing fee from his
release account. (Dkt. #5.) For the reasons that follow, I am denying his motion.
Under DAI 309.45.02(A), the WDOC is permitted to make the following type of
payment from an inmate’s release account: “PLRA fees (with notification directly from the
courts and if regular account and regular savings account funds are not available).” While I
agree that this policy permits the court to direct the WDOC to access inmate release account
funds in certain circumstances, those circumstances do not apply for the purpose plaintiff
seeks.

As an initial matter, plaintiff has not sought leave to proceed in forma pauperis
pursuant to the terms of 28 U.S.C. § 1915(a)(2), so the court cannot assess whether “regular
account and savings account funds” are, in fact, not available.
Even if plaintiff had submitted a request to proceed in forma pauperis and submitted
the proper documentation showing that his regular and savings account funds are not
available to pay the full filing fee, no federal law permits this court to require state officials to
submit the entire filing fee by accessing a prisoner’s release account funds. The Prisoner
Litigation Reform Act (“PLRA”) permits this court to order an institution to access a
prisoner’s release account funds to satisfy the initial partial filing fee payment because it
provides that the court shall assess that fee based on the greater of the “average monthly
deposits to the prisoner’s account” or “the average monthly balance in the prisoner’s account
for the 6-month period immediately preceding the filing of the complaint ….” 28 U.S.C.
§ 1915(b)(1). Payment of the remainder of the filing fee is different; the PLRA provides that
-After payment of the initial partial filing fee, the prisoner shall be required to make
monthly payments of 20 percent of the preceding month's income credited to the
prisoner's account. 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.

28 U.S.C. § 1915(b)(2). As the subsequent monthly payments of the filing fee must be
drawn from the prisoner’s “preceding monthly income,” and does not reference the prisoner’s
“account” more generally, no statutory authority supports plaintiff’s desire to pay the full fee
with his release account funds. See Carter v. Bennett, 399 F. Supp. 2d 936, 936-37 (W.D.
Wis. 2005) (“[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 ….”). The three cases plaintiff cites in his motion
for reconsideration do not suggest otherwise.
First, he cites Clark v. Foster, Case No. 3:16-cv-603-jdp (W.D. Wis. Jan. 24, 2017).
However, in that case, the court did not direct the WDOC to pay the plaintiff’s full filing fee
from his release account.

Rather, the court acknowledged that the Eastern District of

Wisconsin has taken the position that “release accounts may be used to pay off filing fees,”
and requested the state to respond to plaintiff’s request. The state opposed the motion on
other grounds, the plaintiff has subsequently filed a motion to withdraw his request, and the
court took that motion under advisement. Id., dkts. #19, #23. As such, that case does not
support plaintiff’s position.
Plaintiff also cites two decisions from the Eastern District of Wisconsin, but neither
supports his position. Indeed, in Harrell v. Rowe, Case No. 16-cv-694 (E.D. Wis. October 11,
2016), the court denied the plaintiff’s request to access his release account funds for
payments beyond the initial partial filing fee. Dkt. #22, at 1 (“This court has found no
authority to access the release account outside of an initial partial filing fee ….”).

In

Nicholson v. Eckstein, Case No. 16-cv-310-PP, dkt. #7, at 2-3 (E.D. Wis. May 13, 2016), the
court did permit plaintiff to pay the full $400 filing fee from his release account, commenting
that the court “respects the plaintiff’s choice to use his release funds to pay the filing fee.”
Yet that court subsequently denied a request to pay the full appellate filing fee from his
release account, concluding that while the court will consider such requests from prisoners, it
was not appropriate to deplete the plaintiff’s release account in that instance. Id., dkt. #23,
at 2.

The court is unconvinced that either of these cases suggests that plaintiff is entitled to
access his release account to pay the entire filing fee. At most, the Nicholson orders indicate
that the Eastern District of Wisconsin considers requests to access release accounts on a case
by case basis. As that order neither cites the PLRA nor an opinion from the Court of Appeals
from the Seventh Circuit, this court is not bound by it.
Again, if plaintiff wishes to proceed with this lawsuit, he must either pay the $400
filing fee or submit a properly supported motion for leave to proceed without prepayment of
the filing fee no later than May 18, 2017. As previously stated, if I find that plaintiff is
indigent, I will calculate an initial partial payment amount that must be paid before the court
can screen the merits of the complaint under 28 U.S.C. § 1915(e)(2).
ORDER
IT IS ORDERED that plaintiff Dorian V. Neal’s Motion for Reconsideration (dkt.
#5) is DENIED. Plaintiff may have until May 18, 2017 to submit the $400 filing fee or a
motion for leave to proceed without prepayment and a trust fund account statement for the
period beginning approximately August 1, 2016 and ending approximately February 1, 2017.
If, by May 18, 2017, plaintiff fails to respond to this order, I will assume that plaintiff wishes
to withdraw this action voluntarily. In that event, the case will be closed without prejudice
to plaintiff filing the case at a later date.
Entered this 26th day of April, 2017.

BY THE COURT:

/s/
PETER OPPENEER
Magistrate Judge

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DORIAN V. NEAL,
Plaintiff,

ORDER

v.
Case No. 17-cv-146-wmc
REED RICHARDSON , JASON
ACTHERBERG, AND BRAD LUNMARK,
Defendants.

PRISONER REQUEST TO PROCEED IN DISTRICT COURT
WITHOUT PREPAYING THE FULL FILING FEE
Answer the following questions to the best of your ability.
Note: If you do not tell the truth, the court may dismiss your lawsuit.
I.

Personal Information

1)

Your name: ___________________________________________________________
(a)

State the place of your incarceration and provide your prisoner identification
number:

_______________________________________
(place)

_____________________________
(number)

(b)

Are you employed at the institution?

□Yes

□ No

(c)

Do you receive any payment from the institution?

□Yes

□ No

Attach a printout of your prison trust account statement showing transactions for the sixmonth period immediately preceding the filing of this request and showing the current
balance of your account.
2)

Do you have any dependents that you are responsible for supporting?
□ Yes

□ No

If “yes,” list them below.

Name or initials (for
minor children only)

Relationship to You

Age

Amount of Support
Provided per Month

________________________

_________________

________

$____________

________________________

_________________

________

$____________

________________________

_________________

________

$____________

II.

Property or Assets: - If you are married, your answers must include your spouse's
property.

1)

Do you own a car?
□ Yes

□ No

If “yes,” list the car(s) below:

Make and Model

Year

Approximate Current
Value

_______________________________________________ __________

$________________

_______________________________________________ __________

$________________

2)

Do you own your home(s)?

□ Yes

If “Yes,” state the approximate value(s).

□ No
$ ____________________

What is the amount of equity (assessed value of residence minus outstanding
mortgage balance) in the home(s)? $ ____________________
3)

Do you have any cash or checking, savings, or other similar accounts?
□ Yes
□ No
If “Yes,” state the total of such sums.

4)

$ ____________________

Do you own any other property of value, such as real estate, stocks, bonds, trusts, or
individual retirement accounts (e.g., IRA, 401 k), artwork, or jewelry?
□ Yes

□ No

If “Yes,” describe the property and the approximate value(s).
______________________________________________________________________
______________________________________________________________________

III.

Litigation History

For each federal lawsuit that you recall having filed, list as much of the following
information that you remember about each case: The name of the case (that is, the plaintiffs and
the defendants), the case number or year of filing, and the federal district in which you filed the
case. Use more paper if needed.
Case Name
(Plaintiffs and defendants)

Case number
(or year of filing)

Federal district

________________________

____________________

_______________________

________________________

____________________

_______________________

________________________

____________________

_______________________

________________________

____________________

_______________________

IV.

Other Circumstances - Describe any other financial circumstance(s) that you would
like the court to consider when reviewing this petition.

____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________

I, ____________________, declare that I am the plaintiff bringing this complaint. I declare that
I am unable to prepay the full filing fee and that I am entitled to the relief sought in the
complaint.
___________________________
Date

_________________________________________
Signature - Signed Under Penalty of Perjury