Wells v. Hestheaven
| Decision Date | 13 September 2021 |
| Docket Number | 20-cv-1510-pp |
| Parties | ALFONZO WELLS, JR. Plaintiff, v. SGT HESTHEAVEN, SGT MORRIS, SGT CLOPE, SGT ANDERSON, JULIE MASTRONOIAD, MEND MEDICAL, JEREMY HESKE, LIEUTENANT YOHN, DEPUTY REED, DEPUTY HOLDENFELDT, DEPUTY JEUNDERLY, DEPUTY GREEN, DEPUTY JOHN C. HANRAHAN, CAPTAIN FRIEND, RACINE PAROLE OFFICE, RACINE COUNTY JAIL, RACINE SHERIFF'S DEPARTMENT, SHERIFF CHRISTOPHER P. SCHMALING, and THE STATE OF WISCONSIN, 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. 12), DENYING AS MOOT SECOND AND THIRD MOTIONS TO PROCEED WITHOUT PREPAYING THE FILING FEE (DKT. NOS. 14, 16), DENYING PLAINTIFF'S REQUESTS FOR APPOINTMENT OF COUNSEL (DKT. NOS. 3, 9, 17) 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. The plaintiff filed that complaint in the U.S. District Court for the Northern District of Illinois. Dkt. No. 1. On September 29 2020, District Judge Manish S. Shah transferred the complaint and the plaintiff's motion for appointment of counsel (Dkt. No. 3) to this court because the events alleged in the complaint occurred in Wisconsin. Dkt. Nos. 5, 6. This decision resolves the plaintiff's motions for leave to proceed without prepaying the filing fee, dkt. nos. 12, 14 16, and to appoint counsel, dkt. Nos. 3, 9, 17, 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 to proceed with his case without prepaying the civil case filing fee. 28 U.S.C. §1915(a)(2). When funds exist, the prisoner 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 October 28, 2020—about a month after he filed the case—the plaintiff filed a motion to proceed without prepaying the filing fee. Dkt. No. 12. The motion indicated that he was in the Racine County Jail and that he had three small children. Id. at 1-3. At the end of the motion, the plaintiff said he'd been indigent since June 20, 2020 because the Racine County Jail had “THEFT [his] wallet of $300.50.” Id. at 4. He stated that he had $33.30 in his inmate account, asserting that was his first and only dollar amount since June 29, 2020. Id.
The same day the court received the motion, it received a trust account statement that covered the period July 7, 2020 through October 6, 2020.[1] Dkt. No. 13. The statement showed that until October 5, 2020, he had had a negative trust account balance. On October 5, 2020, he received a deposit of $46.05, $10.50 of which was used to cover the negative balance. An additional $2.25 was used to pay for phone time and “Property Misc.” Id. The statement sowed that as of October 6, 2020, the plaintiff's account balance was $33.30. Id.
On November 9, 2020, the court ordered the plaintiff to pay an initial partial filing fee of $3.07. Dkt. No. 15. That same day, the court received from the plaintiff another motion to proceed without prepaying the filing fee. Dkt. No. 16. He advised the court that he was being charged $0.25 for getting a copy of his trust account statement and that he'd been charged that amount several times. He stated, “I personally mailed and submitted my 6-month transaction printout 5 times to 517 E Wisconsin Ave Rm: 362 Milwaukee, WI 53202 including in my Civil Complaint Package of each 3 civil cases that's active.” Id. He stated that he was indigent and could not pay “the full filing fee, ” and asked to be allowed to proceed without prepaying the full filing fee. Id.
On November 20, 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. 18. 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 affidavit was signed November 12, 2020 and notarized November 16, 2020. Id. at 1-2.
As indicated in these filings, the plaintiff has three lawsuits pending in the Eastern District of Wisconsin. On July 20, 2020, he filed Wells v. Anderson, Case No. 20-cv-1107. On October 22, 2020—three months after he filed the lawsuit—the plaintiff filed a trust account statement that covered the period July 7, 2020 through September 30, 2020. Id. at Dkt. No. 10. That statement showed that the plaintiff had a negative account balance of $10.50 as of September 30, 2020. Id. It showed that two weeks before he filed the complaint in that case, he had a balance of negative $10.00. Id.
The plaintiff filed this lawsuit—his second—on September 22, 2020. Dkt. No. 1. The court has described the trust account statement he filed in this case—while by the time he asked to proceed without prepaying the filing fee in this case he'd received a deposit, some of it had gone toward paying his negative balance, leaving him with just over $33.00 as of October 6, 2020.
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. The statement was updated through October 14, 2020. It showed that on October 7 and 8, 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), the 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. 2020). 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—two weeks 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. 18 at 2. A month later, on December 21, 2020, the plaintiff paid the initial partial filing fee in one of the three cases; assuming 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 needed 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 filing fees (and, consequently, 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 construe the plaintiff's affidavits as a request to waive the initial partial filing fee and will grant that request and his motion for leave to proceed without prepaying the filing fee. Dkt. No. 12. The court will deny as moot the plaintiff's second and third motions to proceed without prepaying the filing fee. Dkt. Nos. 14, 16.
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 allowing him to proceed without prepaying the filing fee in the third, he still owes a $350 filing fee in each of the first two cases and a balance of $346.93 in the last 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...
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