United States District Court, E.D. Wisconsin
ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED FOR FAILURE TO PAY INITIAL PARTIAL
PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE.
plaintiff, a prisoner who is representing himself, filed the
complaint, dkt. no. 1, along with a motion asking the court
to allow him to proceed without prepaying the filing fee,
dkt. no. 2. On October 15, 2019, the court ordered the
plaintiff to pay $3.19 to the Clerk of Court by November 5,
2019 as an initial partial filing fee. Dkt. No. 7. On October
24, 2019, the court received a letter from the plaintiff,
asking about the status of the case, stating that he
doesn't receive funds from the state and stating that he
sent a waiver form asking to be able to pay later. Dkt. No.
10. The next day, in response to the plaintiff's request
for the status of the case, court staff mailed the plaintiff
a copy of the docket sheet.
plaintiff filed this lawsuit on August 26, 2019. Dkt. No. 1.
He submitted a trust account statement for the period from
April 1, 2019 through October 22, 2019. Dkt. No. 9. Under the
Prison Litigation Reform Act (“PLRA”), inmates
asking to proceed without prepaying the filing fee must file
a certified trust account statement for the six-month period
preceding the month in which they file their lawsuit. 28
U.S.C. §1915(a)(2). This allows the court to calculate
an initial partial filing fee, which the law requires
prisoner plaintiffs to pay as a condition of proceeding
without prepaying the entire filing fee. 28 U.S.C.
§1915(b). The six months preceding the month in which
the plaintiff filed this lawsuit would have covered February
1, 2019 through July 31, 2019. The court checked the
Department of Corrections' Inmate Locator web site,
however, and learned that the plaintiff was transferred to
his current facility on April 4, 2019, so it appears that his
trust account statement covers the time he was at his
facility prior to filing the lawsuit. The court used that
trust account statement to assess the $3.19 filing fee.
court understands that the plaintiff wrote to the court,
saying that he does not receive money from the state, and
that he asked to pay the filing fee later. But the PLRA
requires that before a court can decide whether to allow an
incarcerated plaintiff to pay the filing fee over time, that
prisoner first may pay an initial partial filing
fee, based on the amount of money he has in his trust account
during the six months prior to when he filed his complaint.
the plaintiff's money problem is the result of the fact
that he has filed four cases in this district in the past
three and a half months. He filed this one on August 26,
2019. On October 7, 2019, he filed Jackson v. Chippewa
Valley Correctional Treatment Center, et al.,
No. 19-cv-1466; the court assessed him the same $3.19 initial
partial filing fee in that case, and he paid $2.39 of it on
October 28, 2019. Along with the $2.39, the plaintiff sent a
letter, saying that he had sent all the funds in his account
but that he wanted all of his cases to continue and to be
allowed to pay over time. No. 19-cv-1466 at Dkt. No. 9. The
court recently issued an order accepting the $2.39 partial
payment, but dismissing that case because the court
doesn't have jurisdiction to hear it. Id. at
Dkt. No. 10. On October 11, 2019, the plaintiff filed
Jackson v. Robert E. Ellsworth Correctional Center,
et al., No. 19-cv-1497. The court assessed him a
$3.19 initial partial filing fee in that case. Finally, on
October 12, 2019, the plaintiff filed Jackson v.
Atkinson, et al., No. 19-cv-1668. In that case,
the plaintiff filed a trust account statement covering the
period May 6, 2019 through November 5, 2019, id. at
dkt. no. 3; the court assessed him a $2.60 initial partial
filing fee, id. at dkt. no. 4, even though he had
not provided trust account information for the entire
six-month period prior to the month in which he filed the
lawsuit (April 1, 2019 through September 30, 2019).
PLRA requires an inmate to pay the initial partial filing fee
for each case he files; “[i]t is undisputed
that the initial partial filing fee is to be assessed on a
per-case basis, i.e., each time the prisoner files a
lawsuit.” Bruce v. Samuels, U.S., 136 S.Ct.
627, 629 (2016). By filing four lawsuits in just over two
months, the plaintiff made himself subject to a total initial
partial filing fee of $12.17.
trust account statement the plaintiff filed in this
case-covering April 2, 2019 through October 2, 2019-showed a
starting balance of $2.02 and an ending balance of $2.39.
Dkt. No. 6. He appears to have had job income here and there,
although he also has many withdrawals for child support, DNA
surcharges and deposits into his release account. He made
occasional canteen purchases.
dismissing the case for failure to pay the initial fee, the
court must determine whether the plaintiff is at fault for
the non-payment. See Thomas v. Butts, 745 F.3d 309,
312-13 (7th Cir. 2014). A court may not dismiss the case of a
prisoner who lacks funds in his account. Id. at 312;
see also 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, 745 F.3d at 312
(citations and internal quotation omitted).
plaintiff's trust account statement does not show that
the intentionally depleted his account prior to filing this
case-he made only three small canteen purchases in the month
of July 2019, and incurred two small copying fees. It
appears, however, that the plaintiff might have sufficient
funds in his release account to pay the $3.19
initial partial filing fee, because the institution has been
taking money out of the trust account and depositing it into
the release account on a regular basis. The court will give
the plaintiff the opportunity to either pay the $3.19 initial
partial filing fee, ask for authorization to pay it out of
his release account (if the plaintiff has enough in that
account), or explain to the court why he cannot pay the $3.19
and ask the court to allow him to proceed without paying any
of the initial partial filing fee. The plaintiff must do one
of these three things-pay the $3.19, ask for permission to
pay it from his release account or ask the court to waive the
initial partial filing fee-by the deadline the court sets
below. If the plaintiff doesn't do one of those things by
the deadline, the court will dismiss this case for the
plaintiff's failure to diligently pursue it.
court ORDERS that, in time for the court to
receive it by the end of the day on January 3,
2020, the plaintiff must either (a) pay the $3.19
initial partial filing fee, (b) file a written request for
authorization to pay the $3.19 initial partial filing fee
from his release account, or (c) explain to the court in
writing why he can't pay the $3.19 initial partial filing
fee from either his trust account or his release account. The
plaintiff must do one of these three things in time for the
court to receive it by the end of the day on January 3, 2020.
court does not receive the $3.19 initial partial filing fee,
the plaintiffs request to pay the fee out of his release
account or the plaintiffs written explanation by the end of
the day on January 3, 2020, the court will dismiss the
plaintiffs case for failure to diligently pursue it. Civ.
L.R. 41(c) (E.D. Wis.).
court will mail a copy of this order to the warden of the
Chippewa Valley ...