Tuwayne Bell v. Supervisor Kay, et al

Filing

Filed opinion of the court PER CURIAM. VACATED and REMANDED. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge and Michael S. Kanne, Circuit Judge. [6817047-1] [6817047] [15-2479]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2479
TUWAYNE BELL,
Plaintiff-Appellant,
v.
SUPERVISOR KAY, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 9965 — John W. Darrah, Judge.

____________________
SUBMITTED FEBRUARY 2, 2017 * — DECIDED FEBRUARY 7, 2017
____________________
Before WOOD, Chief Judge, and POSNER and KANNE, Circuit Judges.
*

The defendants were not served with process in the district court and
are not participating in this appeal. We have agreed to decide this case
without oral argument because the appellant’s brief and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).

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PER CURIAM. Tuwayne Bell, an Illinois prisoner, appeals
the denial of his application to proceed in forma pauperis
and the dismissal of his civil rights suit for failure to prosecute. The district court denied his application because Bell
did not attach to it his inmate trust-account ledger. But the
court did not assess Bell’s explanation that he could not attach the ledger because prison staff had refused to give it to
him. Because the district court unreasonably dismissed the
suit without first evaluating Bell’s exculpatory explanation,
we vacate the dismissal and remand.
Bell began this suit by filing a request for pauper status
and his complaint. The complaint alleged that while he was
working in the kitchen at the jail where he was previously
detained, hot water spilled on his foot and burned him. He
sued the kitchen supervisors, the food supply company, and
others, and asserted that they deliberately disregarded inmates’ safety by ignoring complaints of unsafe conditions
and providing improper protective gear. His request to proceed in forma pauperis did not include a printout showing
transactions in his trust fund accounts over the previous six
months, as required by 28 U.S.C. § 1915(a)(2). But Bell swore
that he could not submit this printout because staff at
East Moline Correctional Center, where he was incarcerated
at the time he filed suit, refused to give him a copy or sign
anything.
The district court denied Bell’s application to proceed
without prepaying fees because, without the ledger, it was
incomplete. Without setting a deadline, the court warned
Bell that if he did not submit a new application with a copy
of the trust fund ledger or pay the full filing fee, it would
dismiss his case. The court also noted Bell’s statement “that

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prison officials have refused to give him the financial information he requires.” But it did not evaluate the statement’s
veracity or significance, or order the prison to provide the
ledger. It did, however, instruct the clerk to “forward a copy
of this order to the trust fund officer at East Moline Correctional Center to facilitate compliance.”
Three months later the district court dismissed the suit.
In explaining the dismissal, the court observed that it had
ordered Bell to submit a completed application “within thirty days” or risk dismissal. Because, the court continued, Bell
failed to comply with this warning, it dismissed the case
pursuant to Federal Rule of Civil Procedure 41(b) and declared that the “case is terminated.”
Two months later Bell tried to revive the suit. He wrote
to the district court, saying that he recently received the
dismissal order and that he never had received the order
denying his application and warning him to submit a completed one. The court interpreted Bell’s letter as a “motion to
reconsider” the dismissal, but denied it because, the court
reasoned, Bell still had not submitted a completed application.
On appeal Bell challenges the district court’s dismissal,
repeating that he never received the order telling him that
his application was incomplete. Now at a different prison,
where he has received the ledger, this court granted him
leave to proceed on appeal without prepaying fees.
We begin by explaining our jurisdiction to review the order dismissing the suit. Bell filed his notice of appeal 71 days
after the court issued the order that dismissed his suit and
gave its reason for doing so. That order was not the “‘sepa-

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rate document’” of judgment required by Rule 58 of the Federal Rules of Civil Procedure because it “states rather than
omits the reason for dismissal.” Brown v. Fifth Third Bank, 730
F.3d 698, 701 (7th Cir. 2013) (Posner, J., in chambers); Otis v.
City of Chicago, 29 F.3d 1159, 1163 (7th Cir. 1994) (en banc) (A
proper Rule 58 order should say “who has won and what
relief has been awarded, but omit[] the reasons for this disposition”). Because the district court did not enter a separate
judgment, Bell’s time to appeal the dismissal did not begin
running until 150 days after the order, see FED. R. CIV. P.
58(c)(2)(B), and his notice of appeal is treated as filed on that
date, see FED. R. APP. P. 4(a)(2). See Calumet River Fleeting, Inc.
v. Int’l Union of Operating Eng’rs, Local 150, AFL–CIO, 824
F.3d 645, 650 (7th Cir. 2016). So Bell’s appeal of the dismissal
order is timely. It also brings up for review the earlier order
denying Bell’s application to proceed in the district court
without prepaying the filing fee. See Luevano v. Wal-Mart
Stores, Inc., 722 F.3d 1014, 1019–20 (7th Cir. 2013).
We conclude that the district court acted unreasonably in
denying Bell’s application to proceed without prepaying fees
and dismissing the suit. A district court errs when it dismisses an inmate’s suit for nonpayment of a filing fee without determining whether the prisoner is at fault in not supplying what the court required from the inmate’s trust account. Sultan v. Fenoglio, 775 F.3d 888, 890 (7th Cir. 2015);
Thomas v. Butts, 745 F.3d 309, 312 (7th Cir. 2014). Prisoners
have limited control over their prison trust accounts, and “it
is entirely predictable that the prison will prefer to postpone
[an inmate’s] ability to pursue litigation against itself.” Sultan, 775 F.3d at 890; Thomas, 745 F.3d at 313. Bell swore that
he could not append his account ledger to his otherwisecomplete application because prison officials refused to pro-

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vide it to him. The district court, having noted that explanation, should have assessed its truthfulness, and if truthful
the court should have decided whether Bell was at fault for
not completing the application.
The district court’s later actions did not rectify the error.
First, the court never ordered prison officials to provide the
ledger, despite Bell’s statement that they would not give it to
him. The court merely directed its clerk to notify prison officials that Bell wanted the ledger. But the officials presumably knew that already because Bell had requested it. Second,
the court incorrectly stated that its warning to file a completed application or face dismissal included a 30-day deadline.
Third, the court never addressed Bell’s post-dismissal explanation that he never even received the order denying him
pauper status and its warning. Without having received the
warning and, even if he did, without the warning specifying
a deadline, Bell cannot be faulted for missing the deadline.
See Sroga v. Huberman, 722 F.3d 980, 982–83 (7th Cir. 2013)
(reversing dismissal for failure to prosecute where plaintiff
explained in postjudgment motion that he did not receive
the court’s warning in the mail and the court did not explain
why it doubted explanation). Dismissal is a harsh sanction
and should not occur unless the court concludes that it is
necessary because other options have failed or would fail.
Thomas, 745 F.3d at 313; Johnson v. Chi. Bd. of Educ., 718 F.3d
731, 732–33 (7th Cir. 2013); Beyer v. Cormier, 235 F.3d 1039,
1041 (7th Cir. 2000). The court did not properly reach this
conclusion, so the suit must be reinstated.
Accordingly, we VACATE the dismissal and REMAND
for further proceedings.