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 this
complaint on October 11, 2019, 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 16, 2019,
the court ordered that by November 6, 2019, the plaintiff had
to submit $3.19 to the Clerk of Court as an initial partial
filing fee. Dkt. No. 7.
plaintiff filed this lawsuit on October 11, 2019. Dkt. No. 1.
He submitted a trust account statement for the period from
April 2, 2019 through October 2, 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 April 1,
2019 through September 30, 2019, so the court used the trust
account statement the plaintiff filed to calculate the $3.19
court issued the order requiring the plaintiff to pay the
$3.19 initial partial filing fee on October 16, 2019. Dkt.
No. 6. Eight days later, on October 24, 2019, the court
received the same trust account statement from the plaintiff.
Dkt. No. 8. There was no cover letter, no explanation-just a
second copy of his trust account statement. The court
suspects that the plaintiff was somehow trying to let the
court know that he did not have the money to pay the $3.19
filing fee. The reason the court suspects this is because the
plaintiff has filed four cases in this district in the past
three and a half months. He filed his first case on August
26, 2019, Jackson v. Kurkowski, et al., No.
19-cv-1235. He submitted the same trust account statement in
that case as he did in this one, and later wrote the court a
letter saying that he didn't receive funds from the state
and that he'd submitted a form asking to pay the filing
fee later. Id. at Dkt. No. 10.
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.
October 11, 2019, the plaintiff filed this case, in which the
court has assessed him a $3.19 initial partial filing fee.
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).
plaintiff may believe that every document he files shows up
on the docket in each of his four cases. That is not correct.
The plaintiff's letter in his first case-the letter in
which he said he didn't receive state money-had No.
19-cv-1235on it. So the clerk's office put that letter on
the docket for that case. That letter is
not on the docket in this case; the court
became aware of it only because it was reviewing all the
plaintiff's cases for the missing initial partial filing
plaintiff may also believe that he is required to pay only
one initial partial filing fee regardless of how many cases
he files. That is not correct, either. The 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. The plaintiff 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 does not appear to have received any job income, or
made any purchases, in the month before h filed the case.
Maybe the plaintiff has enough 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. Or maybe the plaintiff really does not have
any money in either account.
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.
If the court does not receive the $3.19 initial partial
filing fee, the plaintiff's request to pay the fee out of
his release account or the plaintiff's 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 ...