Wells v. Anderson
| Decision Date | 13 September 2021 |
| Docket Number | 20-cv-1107-pp |
| Parties | ALFONZO WELLS, JR. Plaintiff, v. SGT ANDERSON, SGT CLOPE, SGT HESTHEAVEN, SGT MORRIS, DEPUTY REED, DEPUTY HARRINGTON, DEPUTY GREEN, CAPTAIN FRIEND, SHERIFF CHRISTOPHER P. SCHMALING, MEDICAL STAFF JULIE AND LEITECHA, SGT GONZONLEZ, and DEPUTY DONOVAN, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 9), DENYING AS MOOT PLAINTIFF'S ADDITIONAL MOTIONS FOR LEAVE TO PROCEED WITHOUT PREPAYING THE FILING FEE (DKT. NOS. 13, 15), DENYING PLAINTIFF'S REQUESTS FOR RECRUITMENT OF COUNSEL (DKT NOS. 8, 16, 18) AND SCREENING COMPLAINT UNDER 28 U.S.C §1915A
Alfonzo Wells, Jr., who previously was incarcerated at the Racine County Jail and who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants held him against his will, mistreated him and abused him in violation of his civil rights. This decision resolves the plaintiff's motions for leave to proceed without prepaying the filing fee, dkt. nos. 9, 13, 15, and to appoint counsel, dkt. nos. 13, 15, 16 and 18, and screens his complaint, dkt. no. 1.
The Prison Litigation Reform Act (PLRA) applies to this case because the plaintiff was incarcerated when he filed his complaint. See 28 U.S.C. §1915(h). The PLRA lets the court allow an incarcerated plaintiff the ability to proceed with his case without prepaying the civil case filing fee. 28 U.S.C. §1915(a)(2). When funds exist, the incarcerated person must pay an initial partial filing fee. 28 U.S.C. §1915(b)(1). He then must pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id.
On November 9, 2020, the court ordered the plaintiff to pay an initial partial filing fee of $3.07. Dkt. No. 14. On November 19, 2020, the court received from the plaintiff an affidavit indicating that because of poverty, he was not able to “pay the cost of all 3 actions or special proceeding or initial fee!” Dkt. No. 17. He stated that he had no income, no family support and no public assistance, and that he had had physical and mental disabilities since 2010 that prevented him from working. Id. at 1. The plaintiff stated that he “had one time balance of $35.35” in his account, but $10 was taken to pay medical costs on October 29, 2020. Id. at 2. He stated that he needed the remaining money “to order personal hyg[iene] such as soap, shampoo, toothbrush, toothpaste.” Id. The next day-November 20, 2020-the court received the same affidavit from the plaintiff, but this time it had been notarized. Dkt. No. 19.
The plaintiff filed this lawsuit on July 20, 2020. Dkt. No. 1. On October 22, 2020-three months later-the plaintiff filed a trust account statement that covered the period July 7, 2020 through September 30, 2020.[1] Dkt. No. 10. The statement showed that the plaintiff had a negative account balance of $10.50 as of September 30, 2020. Dkt. No. 10. It showed that two weeks before he filed the complaint in this case, he had a balance of negative $10. Id.
On September 22, 2020, the plaintiff filed a second lawsuit. Wells v. Hestheaven, Case No. 20-cv-1510. Over a month later, on October 28, 2020, he filed a trust account statement in that case; it covered the period from July 7, 2020 through October 6, 2020. Id. at Dkt. No. 13. That statement showed that on October 5, 2020, the plaintiff had received a deposit of $46.05, $10.50 of which was used to cover the negative account balance reflected on the trust account statement he filed in this case. Id. () An additional $2.25 was used to pay for phone time and “Property Misc.” Id. The statement showed that as of October 6, 2020, the plaintiff's account balance was $33.30. Id.
On October 5, 2020, the plaintiff filed a third lawsuit. Wells v. Koski, Case No. 20-cv-1557. Two weeks later, on October 22, 2020, he filed a trust account statement in that case. Id. at Dkt. No. 9. That statement was updated through October 14, 2020. It showed that on October 7 and 8, 2020, the plaintiff had spent $2.00 on phone time and that on October 14, 2020 he spent $0.25 on “indigent property.” Id. The statement showed that as of October 14, 2020, the plaintiff's balance was $31.50.
Finally, on December 21, 2020, the plaintiff paid the $3.07 initial partial filing fee in the last case-Case No. 20-cv-1557.
Under 28 U.S.C. §1915(b)(4), this court has the authority to waive a plaintiff's initial partial filing fee if he lacks both the “assets” and the “means” to pay it. The Seventh Circuit Court of Appeals has explained that “[i]t is not enough that the prisoner lacks 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. For that reason, courts construe the word “means” broadly. An incarcerated person may lack “assets” but still have “means” to pay the fee.
At one time, the plaintiff arguably had the assets to pay an initial partial filing fee. As of October 14-a week before he filed the trust account statement in this case-the plaintiff had $31.50 in his trust account. The court issued the order requiring him to pay the initial partial filing fee on November 9, not quite a month later. But in his November 16, 2020 affidavit, the plaintiff stated that “medical” took $10.00 from his account on October 29, 2020, which, he asserted, took his balance down to $20. Dkt. No. 17 at 2. A month later, on December 21, 2020, the plaintiff paid the initial partial filing fee in one of the three cases; assuming that he did not get any more deposits, that would have taken his balance down to less than $17.00. As the plaintiff pointed out in his affidavit, he needs to purchase hygiene items.
The plaintiff made the choice to file three lawsuits. Normally the court would expect him to be prepared to pay three initial partial filing fees. But given his explanation of his financial status, the financial history reflected in the three trust account statements he has filed and the plaintiff's recent history of living arrangements (discussed below), the court cannot conclude that the plaintiff has either the assets or the means to pay the initial partial filing fee. The court will not require him to pay the initial partial filing fee in this case. The court will deny as moot the plaintiff's second and third motions to proceed without prepaying the filing fee. Dkt. Nos. 13, 15.
The PLRA, however, does not allow the court to waive the $350 filing fee. It says that an incarcerated plaintiff who asks to proceed without prepaying the filing fee is nonetheless “required to pay the full amount of the filing fee.” 28 U.S.C. §1915(b). Although the court is waiving the initial partial filing fee in the first two of the plaintiff's cases and granting his motion to proceed without prepaying the full filing fee in the last one, he still owes a $350 filing fee in each of the first two cases and a balance of $346.93 in the third one-a total of $1, 046.93. He must pay the $350 filing fee for this case over time as he is able.
Under the PLRA, the court must screen complaints brought by prisoners seeking relief from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §1915A(a). The court must dismiss a complaint if the prisoner raises claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §1915A(b).
In determining whether the complaint states a claim, the court applies the same standard that it applies when considering whether to dismiss a case under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir. 2012)). To state a claim, a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must contain enough facts, accepted as true, to “state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege that someone deprived him of a right secured by the Constitution or the laws of the United States, and that whoever deprived him of this right was acting under the color of state law. D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). The court construes liberally complaints filed by plaintiffs who are representing themselves and holds such complaints to a less stringent standard than pleadings drafted by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)).
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