United States District Court, E.D. Wisconsin
ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY COURT
SHOULD NOT DISMISS THE CASE FOR FAILURE TO PAY THE INITIAL
PARTIAL FILING FEE
PAMELA PEPPER Chief United States District Judge
plaintiff, a prisoner who is representing himself, filed this
complaint on November 12, 2019, dkt. no. 1, along with a
motion asking the court to allow him to proceed without
prepaying the filing fee, dkt. no. 2. He submitted a trust
account statement covering the period May 6, 2019 through
November 5, 2019. Dkt. No. 3. On November 13, 2019, the court
ordered that by December 4, 2019, the plaintiff had to submit
$2.60 to the Clerk of Court as an initial partial filing fee.
Dkt. No. 7.
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. In that case, he did not submit a trust account
statement until October 7, 2019, and it covered the period
from April 2, 2019 through October 2, 2019. Dkt. No. 6. The
court ordered him to pay $3.19 as an initial partial filing
fee. Dkt. No. 7. The plaintiff 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 No. 19-cv-1466, Jackson v.
Chippewa Valley Correctional Treatment Center, et al.;
the court assessed him the same $3.19 initial partial filing
fee in that case, dkt. no. 5, 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. 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 Jackson v. Robert
E. Ellsworth Correctional Center, et al., No.
19-cv-1497, in which the court assessed him a $3.19 initial
partial filing fee. Dkt. No. 6. Finally, on November 12,
2019, the plaintiff filed this case.
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-1235 on 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 fees.
plaintiff also may 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
trust account statement the plaintiff filed in this case (No.
19-cv-1668)-covering May 6, 2019 through November 5,
2019-showed a starting balance of $2.59 and an ending balance
of $0.00. 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
plaintiff's trust account statement does not show that he
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 he filed the case. The
only deduction from his account during that time was the
$2.39 check to this court on October 24, 2019, to pay part of
the initial partial filing fee in No. 19-cv-1466. Maybe the
plaintiff has enough funds in his release account to pay the
$2.60 initial partial filing fee in this case, 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 $2.60 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 $2.60 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
$2.60, 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 10,
2020, the plaintiff must either (a) pay the $2.60
initial partial filing fee, (b) file a written request for
authorization to pay the $2.60 initial partial filing fee
from his release account, or (c) explain to the court in
writing why he can't pay the $2.60 initial partial filing
fee from either his trust account or his release account. The
plaintiff must do one of these things in time for the court
to receive it by the end of the day on January 10, 2020. If
the court does not receive the $2.60 initial partial filing
fee, the plaintiffs request to pay the fee out of his release
account or the plaintiffs written explanation by the
deadline, the court will dismiss the plaintiffs case for
failure to diligently pursue it. Civil Local Rule 41(c) (E.D.
court will mail a copy of this order to the warden of the
Chippewa Valley ...