Jeffrey Olson v. James Schwochert ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 19, 2019*
Decided August 19, 2019
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 19-1019
JEFFREY E. OLSON, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of Wisconsin.
v. No. 18-cv-666-jdp
JAMES SCHWOCHERT, James D. Peterson,
Defendant-Appellee. Chief Judge.
ORDER
Jeffrey Olson is a Wisconsin prisoner who owes money to the state and federal
governments but does not like the way his debts are being paid out of his prison trust
account. He filed a lawsuit under 42 U.S.C. § 1983 against a director of the Wisconsin
Department of Corrections, seeking to enjoin the collection of debts that he incurred
through a state criminal judgment and obtain a refund of what he had already paid. In
this appeal challenging the dismissal of his complaint with prejudice at screening, he
* The defendant was not served with process in the district court and is not
participating in this appeal. We have agreed to decide this case without oral argument
because the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19-1019 Page 2
also opposes the way his prison attempted to collect the initial partial filing fee for this
litigation. We affirm the judgment.
A Wisconsin state court entered a judgment of conviction against Olson that
included an order to pay $210 as a “Mandatory Victim/Wit[ness] Surcharge,” and $60 in
court costs, with the costs “to be paid as a condition of extended supervision.” Olson
interprets the order to require that he pay $270 only after he is released from prison in
2047. Beginning in 2016, however, prison officials have diverted money from Olson’s
prison trust account deposits to pay the surcharge.1
In response to these deductions, Olson brought this suit against James
Schwochert, an administrator for the Wisconsin Department of Corrections, in his
personal and official capacities. Schwochert had instituted a state-wide policy
governing the procedures for deducting money from deposits made into prison trust
accounts to pay prisoners’ debts. The policy increased the maximum deduction from
25% to 50% of deposits. Olson alleged that this policy modified his criminal judgment in
violation of state law as well as the Due Process, Takings, and Ex Post Facto Clauses of
the United States Constitution. He sought declaratory relief, an injunction prohibiting
the deductions, refund of the money already deducted, and punitive damages under
42 U.S.C. § 1983.
A magistrate judge granted Olson leave to proceed in forma pauperis, assessed
an initial partial filing fee, and ordered that “[i]f plaintiff does not have enough money”
in his “regular account,” he “should arrange with authorities to pay the remainder from
[his] release account.” A release account is a separate prison trust account that, under
Wisconsin law, contains funds to be made available to an inmate on his release (though
both state and federal courts in Wisconsin have permitted its use to pay at least initial
court filing fees). See WIS. ADM. CODE § DOC 309.466; Kennedy v. Huibregtse, 831 F.3d
441, 442 (7th Cir. 2016); Carter v. Bennett, 399 F. Supp. 2d 936, 936–37 (W.D. Wis. 2005).
Olson understood the magistrate judge’s order to mean that the prison’s
business office could pay the partial filing fee from only his release account. When
prison officials told him that he first had to deplete his regular account and then take
the remaining balance from his release account, Olson moved to hold them in contempt.
1 Olson alleges that officials took $270, but an exhibit to his complaint shows that
only the $210 Victim/Witness surcharge had been collected. That surcharge was due at
the time of conviction. See WIS. STAT. § 973.045(2), (4).
No. 19-1019 Page 3
The magistrate judge denied the motion, explaining that the officials were correct.
Eventually, the district judge waived the initial partial filing fee on the understanding
that Olson had approved payment from his regular account, but the disbursement was
not being processed. See 28 U.S.C. § 1915(b)(4); Sultan v. Fenoglio, 775 F.3d 888, 890
(7th Cir. 2015).
The district judge then screened the complaint under 28 U.S.C. § 1915A and
dismissed it for failure to state a claim. He determined that Olson had no right to
individual notice or a hearing before prison officials could enforce its new policy, so
Olson’s due-process rights were not violated. Nor, the judge concluded, was a change
in the schedule for collecting a prior debt a punishment or a taking.
On appeal, Olson first argues that he stated a claim against Schwochert under
42 U.S.C. § 1983 and, to the extent he did not, that the judge should have given him an
opportunity to amend his complaint. Olson’s complaint fails to a state a claim for
several reasons, the most critical being the chosen defendant. A suit against an officer of
a state agency in his official capacity is a suit against the state, and the state is not a
“person” subject to suit under § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58,
71 (1989); Kolton v. Frerichs, 869 F.3d 532, 535–36 (7th Cir. 2017). Moreover, Olson does
not (nor could he) plausibly allege that Schwochert was personally involved in taking
his money or enforcing state policy. Olson thus cannot sue Schwochert either in his
individual capacity for damages or in his official capacity for prospective relief under
Ex parte Young, 209 U.S. 123 (1908). See Mitchell v. Kallas, 895 F.3d 492, 498 (7th Cir. 2018)
(personal involvement needed under § 1983); Doe v. Holcomb, 883 F.3d 971, 975–76
(7th Cir.) (enforcement needed under Young), cert. denied, 139 S. Ct. 126 (2018).
Olson contends that he was entitled to a chance to amend his complaint. But
even if Olson could have identified a proper defendant, amendment would still have
been futile, so we see no error in the district judge’s decision to dismiss Olson’s
complaint with prejudice. See Tate v. SCR Med. Transp., 809 F.3d 343, 346 (7th Cir. 2015).
The district judge properly concluded that the Due Process Clause did not entitle Olson
to individual notice and a hearing before the enactment of a generally applicable
regulation. Pro-Eco, Inc. v. Bd. of Comm’rs, 57 F.3d 505, 513 (7th Cir. 1995). And even if
Schwochert’s policy were invalid under Wisconsin law (Olson points to three state trial
courts that have apparently so held), the Due Process Clause does not provide a remedy
for violations of state law. See Wozniak v. Adesida, No. 18-3315, 2019 WL 3562011, at *3
(7th Cir. Aug. 6, 2019).
No. 19-1019 Page 4
Olson’s other theories fare no better. Wisconsin’s decision to speed up collection
of his pre-existing debts is not a “punishment” within the meaning of the Ex Post Facto
Clause. See Quarles v. Kane, 482 F.3d 1154, 1155 (9th Cir. 2007); cf. In re Buddhi, 658 F.3d
740, 742 (7th Cir. 2011) (recognizing that Federal Bureau of Prisons can modify terms of
payment plan). Nor is it a taking because the money is seized not for public use but to
pay Olson’s debts. That the debt is to the state, and therefore the money goes to the
state’s general funds, does not matter, because the obligations were imposed under a
lawful criminal judgment. See Bennis v. Michigan, 516 U.S. 442, 452 (1996) (recognizing
that government need not compensate owner for property taken through means other
than eminent domain).
Finally, Olson insists that the district judge should have held prison officials in
contempt for failing to remit his initial partial filing fee entirely from his release
account. But the officials followed the magistrate judge’s order, so there was no
contempt. See Trade Well Int'l v. United Cent. Bank, 778 F.3d 620, 626 (7th Cir. 2015). In
any event, the district judge waived the initial partial filing fee, so Olson was not
injured by the prison’s refusal to use his release account. And regardless how the initial
filing fee was to be paid, further installments must be paid from his regular account,
see Carter, 399 F. Supp. 2d at 936–37, at a rate of 40% of his monthly deposits because he
filed both a complaint and this appeal, see 28 U.S.C. § 1915(b)(2); Newlin v. Helman,
123 F.3d 429, 436 (7th Cir. 1997), abrogated on other grounds by Lee v. Clinton, 209 F.3d
1025, 1027 (7th Cir. 2000), and Walker v. O'Brien, 216 F.3d 626, 628–29 (7th Cir. 2000).
AFFIRMED