David Bailey v. Jane Doe, et al

Filing

PER CURIAM OPINION FILED - THE COURT: LAVENSKI R. SMITH, MORRIS S. ARNOLD and DUANE BENTON (UNPUBLISHED) [3843070] [11-2410]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-2410
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David Eugene Bailey,

*
*
Appellant,
*
* Appeal from the United States
v.
* District Court for the Eastern
* District of Missouri.
Jane Doe, #1; Unknown Nash;
*
Unknown Calvin; Unknown Brothers; *
[UNPUBLISHED]
Unknown Feith,
*
*
Appellees.
*
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Submitted: September 28, 2011
Filed: October 26, 2011
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Before SMITH, ARNOLD, and BENTON, Circuit Judges.
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PER CURIAM.
Former Missouri inmate David Bailey appeals from the district court’s Federal
Rule of Civil Procedure 41(b) dismissal of his action without prejudice. The dismissal
was based on his failure to comply with an order to pay an initial partial filing fee
within a specified time period.
Upon careful review, see Boyle v. Am. Auto. Serv., Inc., 571 F.3d 734, 742 (8th
Cir. 2009) (standard of review), we conclude that the dismissal of Mr. Bailey’s action
was an abuse of discretion because--based on his certified inmate account statements

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Date Filed: 10/26/2011 Entry ID: 3843070

and his assertions in the district court--it appears that his failure to make an initial
partial payment on time was due to a lack of available funds. See 28 U.S.C.
§ 1915(b)(1) (stating that court shall collect initial partial filing fee “when funds
exist”), (b)(4) (providing that prisoner shall not be prohibited from bringing civil
action because he lacks assets and means to pay initial partial filing fee); Taylor v.
Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (for prisoners whose prior account
balances resulted in assessment of initial fee, but who do not have funds available
when payment is ordered, § 1915(b)(4) should protect them from having their cases
dismissed for non-payment); cf. Glass v. Scottrade, 354 Fed. Appx. 276, 276 (8th Cir.
2009) (unpublished per curiam) (district court abused its discretion in denying
plaintiff’s motion to reopen her case, where court had dismissed under Rule 41(b) for
failure to pay partial filing fee within 30 days, and plaintiff explained in motion to
reopen that she acted promptly to attempt to comply with court’s order and that
payment was late for reasons beyond her control).1
Accordingly, we vacate the district court’s Rule 41(b) dismissal, and we remand
the case for further proceedings consistent with this opinion.
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1

We note, however, that the district court’s decision to sever Mr. Bailey’s initial
complaint into three separate actions--thus obligating him to pay three separate filing
fees--appears to have been warranted.
-2-

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Date Filed: 10/26/2011 Entry ID: 3843070