Leonard Thomas v. Keith Butts , 745 F.3d 309 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2902
LEONARD THOMAS,
Plaintiff-Appellant,
v.
KEITH BUTTS, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12-cv-00443-JMS-DKL — Jane E. Magnus-Stinson, Judge.
SUBMITTED MARCH 12, 2014* — DECIDED MARCH 13, 2014
Before BAUER, MANION, and ROVNER, Circuit Judges.
PER CURIAM. Leonard Thomas, an Indiana prisoner, sued
prison officials and medical personnel at the Pendleton
*
Because there are no appellees to be served in this appeal, the appeal has
been submitted without the filing of appellees’ briefs. After an examination
of the appellant's brief and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the appellant's
brief and the record. See FED. R. APP. P. 34(a)(2).
2 No. 12-2902
Correctional Facility under 42 U.S.C. § 1983 for deliberate
indifference to his epilepsy in violation of the Eighth Amend-
ment. The district court dismissed without prejudice after
Thomas did not pay the initial partial filing fee that the court
assessed under 28 U.S.C. § 1915(b)(1). We vacate the dismissal
because the judge dismissed the suit without determining if
Thomas was at fault for not paying.
At the start of litigation, Thomas moved to proceed in
forma pauperis, attaching two documents covering the
previous six months: a record of transactions for his prisoner
trust account and a certificate of his average monthly balance.
The transaction record shows an ending balance of $.02 and the
certificate, signed by a prison official, states that the average
monthly balance was $43.50. The district judge granted the
motion, assessed an initial partial filing fee of $8.40 under the
Prison Litigation Reform Act, and ordered Thomas to pay this
initial fee within three weeks.
A month after the payment deadline had passed, the judge
dismissed the case without prejudice because the initial fee had
not been paid. Thomas sent a letter to the court challenging the
dismissal. He maintained that when his payment came due he
had no money and no income, and that any money he does
receive is immediately and automatically deducted by the
prison to pay for debts he incurred by printing copies of his
complaint. The judge did not respond to Thomas’s letter.
About five weeks after the dismissal (39 days to be exact),
Thomas sent another letter to the court. In this letter, he stated
that he wished to appeal the dismissal but that he had been
unable learn how to timely do so because he did not have
No. 12-2902 3
access to the law library and because the prison was interfering
with his mail. In response to this second letter, the judge
granted Thomas another 14 days to file a notice of appeal, and
Thomas filed the notice 12 days later.
Before proceeding to the merits of Thomas’s appeal, we
must determine whether we have jurisdiction to hear the case.
See Minn. Life Ins. Co. v. Kagan, 724 F.3d 843, 846 (7th Cir. 2013).
We see two potential concerns with jurisdiction, but both are
resolved in favor of hearing the appeal. First, a dismissal
without prejudice is generally not appealable, Ennenga v.
Starns, 677 F.3d 766, 772 (7th Cir. 2012), but an exception
applies when the dismissal is “conclusive in practical effect,”
see Schering-Plough Healthcare Prods., Inc. v. Schwarz Pharma,
Inc., 586 F.3d 500, 507 (7th Cir. 2009) (internal quotation marks
omitted). The dismissal here, though without prejudice, is
conclusive for two reasons: First, because Thomas’s transaction
report shows (and he asserts to us) that he has no funds, he
cannot remedy the problem that led to the dismissal and,
second, the statute of limitations has run on at least some of his
claims. See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1026
(7th Cir. 2013); Schering-Plough, 586 F.3d at 506–07. Accord-
ingly, the non-prejudicial nature of the dismissal does not
impair our jurisdiction.
The second issue is timeliness. Thomas did not file the
notice of appeal within 30 days after the dismissal, as ordi-
narily required by Federal Rule of Appellate Procedure
4(a)(1)(A). But Rule 4(a)(5)(A)(ii) allows a district court to
extend the filing deadline if a party “shows excusable neglect
or good cause” and the party asks for the extension within 30
days after the filing deadline. Thomas asked for his extension
4 No. 12-2902
on the 39th day after dismissal, just 9 days after the filing
deadline. The district court granted Thomas an extension of 14
days, as the Rule permits, based on his lack of access to the law
library and his problems with the mail, and Thomas then filed
the notice of appeal within that period. Because the court’s
grant of the extension was reasonable, the appeal was timely.
See Abuelyaman v. Ill. State Univ., 667 F.3d 800, 807–08 (7th Cir.
2011).
We thus proceed to the merits. Thomas argues on appeal
that the district court abused its discretion by dismissing his
suit. He contends that the dismissal was unreasonable because
he had no money and no income at the time his initial payment
was due and thus could not pay the partial filing fee.
We note at the outset that the district court committed no
error in determining the initial partial filing fee. The certificate
that Thomas submitted stated that his average monthly
balance was $43.50. With a bit of calculation, we see from his
transaction history that his average monthly deposit was $8.26.
The PLRA provides a formula for assessing the initial fee for
prisoners proceeding in forma pauperis—the greater of 20% of
the average monthly deposit or 20% of the average monthly
balance for the six preceding months. See 28 U.S.C. § 1915(b)(1).
The court’s assessment of an initial partial filing fee of $8.40,
which is just slightly less than 20% of $43.50, was consistent
with this formula. Thomas argues that the certificate he
supplied contains an error because the prison official who
reported the average monthly balance on the certificate
miscalculated. But this mistake or misrepresentation does not
undermine the court’s assessment of the initial partial filing fee
because the judge did not know of the alleged inaccuracy at the
No. 12-2902 5
time of assessment, and Thomas never brought it to the district
judge’s attention.
Although the district court properly assessed the initial
partial filing fee, it abused its discretion by dismissing the case
without determining whether Thomas was at fault for not
paying that initial fee. Section 1915(b)(4) warns: “In no event
shall a prisoner be prohibited from bringing a civil action or
appealing a civil or criminal judgment for the reason that the
prisoner has no assets and no means by which to pay the initial
partial filing fee.” Because a court may not dismiss the suit of
a prisoner who has “a lack of funds in the account,” the court
must determine if nonpayment happened for that reason.
Wilson v. Sargent, 313 F.3d 1315, 1321 & n.7 (11th Cir. 2002)
(vacating dismissal and ordering that the prisoner “be given
some reasonable opportunity” to explain the nonpayment); see
also Beyer v. Cormier, 235 F.3d 1039, 1041 (7th Cir. 2000) (vacat-
ing dismissal where district court did not consider prisoner’s
explanation for nonpayment of filing fee); Hatchet v. Nettles, 201
F.3d 651, 654 (5th Cir. 2000) (vacating dismissal for nonpay-
ment and ordering that, before dismissal, “the district court
should take reasonable steps to ascertain” what the prisoner
has done to comply with the initial-payment order); Taylor v.
Delatoore, 281 F.3d 844, 850–51 (9th Cir. 2002) (vacating
dismissal and observing that district court may not dismiss
prisoner’s suit when prisoner lacks funds 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 pay-
ment, the court in its sound discretion may dismiss the action.”
Wilson, 313 F.3d at 1322 n.7; see also Newlin v. Helman, 123 F.3d
6 No. 12-2902
429, 435 (7th Cir. 1997) (noting that a prisoner who “squan-
der[s]” all his assets has the “means” to pay and is not exoner-
ated by section 1915(b)(4)), overruled in part on other grounds by
Lee v. Clinton, 209 F.3d 1025, 1026–27 (7th Cir. 2000); Cosby v.
Meadors, 351 F.3d 1324, 1327 (10th Cir. 2003).
This approach—requiring the court to learn before dis-
missal whether the prisoner is at fault for the nonpayment of
the initial fee—is appropriate for several reasons. First, it is
consistent with the language of the PLRA, which directs courts
to collect the initial partial filing fee only “when funds exist.”
28 U.S.C. § 1915(b)(1); see Wilson, 313 F.3d at 1320; Taylor, 281
F.3d at 850. Second, this approach recognizes the reality that
prisoners have limited control over the processing of their
inmate trust-fund withdrawals and rely on the custodial
institution to transfer the funds. See Hatchet, 201 F.3d at 652;
Wilson, 313 F.3d at 1321. And third, requiring the district court
to learn before dismissal why the fee has not been paid
comports with our admonishment that, “[i]n 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.” Beyer, 235
F.3d at 1041 (citations omitted); see Johnson v. Chi. Bd. of Educ.,
718 F.3d 731, 733 (7th Cir. 2013).
Accordingly, before dismissing Thomas’s suit, the district
court should have attempted to learn why the fee had not been
paid by, for example, issuing a show-cause order. See Wilson,
313 F.3d at 1321; Hatchet, 201 F.3d at 654. Thomas asserts on
appeal that he could not pay the initial fee because he simply
had no funds and no income when payment was due. That
may be correct: The transaction record that Thomas submitted
No. 12-2902 7
to the district court shows that his ending account balance was
only $0.02, that he received no deposits in the previous two
months, and that only $1.50 had been deposited into the
account during the previous three months. But the truth of his
assertion that he lacked funds, and whether he can be faulted
for lacking them, is for the district court to determine in the
first instance.
Accordingly, we VACATE the dismissal and REMAND the
case for further proceedings.