Beyer, Bernard L. v. Cormier, Rob G. ( 2000 )

  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 99-2671
    ROB G. CORMIER, et al.,
    Appeal from the United States District Court
    for the Eastern District of Wisconsin.
    No. 99-C-359--Thomas J. Curran, Judge.
    Submitted December 13, 2000--Decided December 22, 2000
      Before FLAUM, Chief Judge, and RIPPLE and ROVNER,
    Circuit Judges.
      PER CURIAM. Bernard Beyer filed suit under 42
    U.S.C. sec. 1983 against Rob Cormier, a building
    inspector for the City of Green Bay, Wisconsin,
    and other city officials. When Mr. Beyer failed
    to pay the filing fee within the 21 days allotted
    by the district court, the case was dismissed
    with prejudice. Because we conclude that the
    district court abused its discretion in
    dismissing Mr. Beyer’s case with prejudice, we
    vacate the district court’s order and remand the
    case to the district court.
      After filing his complaint, Mr. Beyer petitioned
    the district court to proceed in forma pauperis
    in April 1999. The district court granted that
    request but required Mr. Beyer to pay a partial
    filing fee of $71.83, see 28 U.S.C. sec.
    1915(b)(1), within 21 days of its April 16, 1999
    order. Mr. Beyer is a prisoner at Whiteville
    Correctional Institution in Whiteville,
    Tennessee. Although he is incarcerated at a
    facility in Tennessee, Mr. Beyer is a Wisconsin
    state prisoner. As a result, he remains under the
    control and authority of the Wisconsin Department
    of Corrections. Thus, while he remains in
    Tennessee, Mr. Beyer must send a letter to prison
    officials in Wisconsin and ask that they withdraw
    the necessary funds from his account and mail a
    check to the appropriate district court to pay
    any required court costs.
      On April 23, 1999, Mr. Beyer wrote to the
    district court, asking to withdraw the motion to
    proceed in forma pauperis. In this letter, he
    stated that he did not want to risk incurring a
    "strike" under the Prison Litigation Reform Act,
    see 28 U.S.C. sec. 1915(g), by proceeding in
    forma pauperis. He also accepted the
    responsibility of paying the entire filing fee of
    $150.00 and stated that he had sent a request
    three days earlier, via letter, to the custodian
    of inmate accounts at the Jackson Correctional
    Institute in Black River Falls, Wisconsin. Mr.
    Beyer reported that he asked that $150.00 be
    withdrawn from his "Inmate Release Account" and
    mailed to the clerk of the district court to pay
    the filing fee. Because he had already sent his
    request to the Jackson facility, the letter to
    the district court stated that he anticipated
    that the funds would be arriving at the clerk’s
    office in Milwaukee, Wisconsin, shortly, well
    within the 21-day limit set by the district
      Mr. Beyer’s 21-day limit was set to expire on
    Friday, May 7, 1999. On Monday, May 10, not
    having received any funds from Mr. Beyer, the
    district court instead received a motion from Mr.
    Beyer, requesting an extension until May 20 to
    pay the filing fee. On May 11, 1999, the district
    court dismissed Mr. Beyer’s action with prejudice
    for failure to pay the fee.
      Mr. Beyer finally received a response from the
    Wisconsin prison trustees dated May 13, 1999.
    That letter revealed to Mr. Beyer that this
    particular district court, the Eastern District
    of Wisconsin, did not allow the use of release
    funds to pay filing fees. By the time Mr. Beyer
    received this letter from the prison trustees,
    the district court had already dismissed his
    complaint with prejudice. Although Mr. Beyer
    included the new information about the release
    funds in three motions to reconsider, the
    district court declined to revisit its decision.
      We review a district court’s dismissal for want of
    prosecution or for failure to follow a court order
    for an abuse of discretion. Kruger v. Apfel, 
    214 F.3d 784
    , 786 (7th Cir. 2000); Grun v. Pneumo Abex
    163 F.3d 411
    , 425 (7th Cir. 1998). Dismissal
    is a harsh sanction that should be reserved for
    "extreme situations." Kruger, 214 F.3d at 787;
    Dunphy v. McKee, 
    134 F.3d 1297
    , 1299 (7th Cir.
    1998); see also Hatchet v. Nettles, 
    201 F.3d 651
    653 (5th Cir. 2000) (per curiam) (suggesting the
    district court consider taking lesser steps before
    entering a dismissal for failure to pay fee). In
    the absence of contumacious conduct or a clear
    record of disobeying court orders, it is an abuse
    of discretion to dismiss without first firing a
    warning shot or imposing other lesser sanctions.
    See, e.g., Kruger, 214 F.3d at 787-88 (requiring
    district court to consider alternatives before
    imposing dismissal as "ultimate sanction"); Bolt v.
    227 F.3d 854
    , 856-57 (7th Cir. 2000)
    (encouraging district courts to consider lesser
    sanctions before dismissal).
      In this case, the district court dismissed Mr.
    Beyer’s case with prejudice before he could
    attempt to pay the partial filing fee from a non-
    release fund account in accordance with the
    district court’s rules. When Mr. Beyer did not
    meet the deadline, the district court did not
    allow an extension or communicate with the prison
    trustees to determine the status of his payment.
    In addition, the district court declined to
    consider Mr. Beyer’s explanation for his delay in
      We conclude that the district court’s relatively
    short deadline, the absence of a minimal
    extension, and the dismissal with prejudice
    constituted an abuse of discretion by the
    district court.
      Accordingly, we VACATE the judgment of the
    district court and REMAND the case for further