United States District Court, E.D. Wisconsin
ORDER DENYING PLAINTIFF'S REQUEST TO WAIVE
INITIAL PARTIAL FILING FEE (DKT. NO. 10)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
Blakes is an inmate at the Milwaukee County Jail, and is
representing himself. When he filed this 42 U.S.C. §1983
lawsuit, he also filed a motion to proceed without prepaying
the filing fee. Dkt. No. 2. Before the court will allow an
inmate to proceed without prepaying the filing fee, he first
must pay an initial partial filing fee. 28 U.S.C.
§1915(b)(1). On January 25, 2019, Judge Joseph issued an
order assessing an initial partial filing fee of $22.15 and
ordering the plaintiff to pay it by February 19, 2019. Dkt.
No. 5. A week before that deadline, the court received from
the plaintiff another motion for leave to proceed without
prepaying the filing fee. Dkt. No. 7. This second motion said
that the plaintiff was “fundless currently.”
Id. at 2. Along with that motion, he filed his
inmate trust account statement for September 12, 2018 through
November 5, 2018. Dkt. No. 8.
March 18, 2019, the court issued an order requiring the
plaintiff to pay the fee by the end of the day on March 29,
2019, or to explain why he couldn't do so. Dkt. No. 9.
Instead of paying the fee, the plaintiff submitted a letter
stating that he “[couldn't] come up with” the
money. Dkt. No. 10. He said that he had been trying to come
up with the money, but that it had been hard for him because
his family hadn't been sending any money. He said he
“send” a copy of his trust account statement-the
court assumes he was referring to the trust account statement
he filed in February, because he didn't send a new trust
account statement with the March 28 letter. He said that he
did not want the court to dismiss his case. Id.
may not dismiss the lawsuit of a prisoner who lacks the
ability to pay an initial partial filing fee. See 28
U.S.C. § 1915(b)(4) (“In no event shall a prisoner
be prohibited from bringing a civil action . . . for the
reason that the prisoner has no assets and no means by which
to pay the initial partial filing fee.”). “But if
the court finds that the prisoner is unable to pay the
partial filing fee at the time of collection because he
intentionally depleted his account to avoid payment, the
court in its sound discretion may dismiss the action.”
Thomas v. Butts, 745 F.3d 309, 312 (7th Cir. 2014)
(citations and internal quotation omitted).
he filed his lawsuit on January 18, 2019, the plaintiff has
filed two trust account statements. The court received the
first one the day the plaintiff filed his case; that
statement covers September 12, 2018 through January 7, 2019.
Dkt. No. 3. The second one, which the court received in
February, covers only September 12, 2018 through November 5,
2018, but it shows the same information for that period that
the first statement showed. The record shows that the
plaintiff received deposits of $458.21 during that time, and
that he spent almost all that money on phone cards and
commissary. There are a couple deductions for medical costs.
Dkt. No. 3 at 2. But almost every other deduction is from the
commissary or from phone calls. Id. at 1-2.
true that the deposits slowed down in the month or so before
the plaintiff filed his lawsuit-while he received a $250 in
October and $100 in November of 2018, he received only $15 in
December. But the plaintiff's complaint says that the
events for which he wants to sue took place on October 7,
2018. Between that date and the date he filed his complaint,
the plaintiff received deposits of $165. He did not save any
of that money for an initial partial filing fee.
Court of Appeals for the Seventh Circuit has held that
“[i]t is not enough that the prisoner lack assets on
the date he files. If that were so, then a prisoner could
squander his trust account and avoid the fee. Section
1915(b)(4) comes into play only when ‘the prisoner has
no assets and no means by which to pay the initial partial
filing fee.' A prisoner with periodic income has
‘means' even when he lacks
‘assets.'” Newlin v. Helman, 123
F.3d 429, 435 (7th Cir. 1997) (rev'd on other grounds
Walker v. O'Brien, 216 F.3d 626 (7th Cir. 2000)).
this standard, the plaintiff is not eligible for waiver of
the initial partial filing fee; he had money he could have
used to pay it, but he chose to use that money for phone
calls and commissary. The plaintiff has two options: (1) he
can ask the court to voluntarily dismiss the lawsuit, and can
refile it later (as long as it isn't barred by the
relevant statutes of limitations), or (2) he can pay the
$22.15 initial partial filing fee. If the plaintiff wants to
continue the case, he must pay the initial partial filing fee
by the deadline the court sets below. If the court does not
receive the $22.15 or a request to voluntarily dismiss the
case by the deadline below, the court will dismiss the
plaintiffs case on the next business day without further
notice or hearing.
court ORDERS that by the end of the day on
Friday, August 23, 2019, the plaintiff must
pay the initial partial filing fee of $22.15. If the court
does not receive $22.15 from the plaintiff by the end of the
day on Friday, August 23, 2019, the court will dismiss the
case without prejudice for the plaintiffs failure to pay it.
court ORDERS that if the plaintiff wants to
voluntarily dismiss the case, he may send the court a letter