Donelson v. Pfister

Filing 12

ORDER & OPINION entered by Judge Joe Billy McDade on 03/05/2014. IT IS THEREFORE ORDERED that Petitioner's Motion to Reconsider 11 is GRANTED. The Order dated February 18, 2014 9 and the accompanying Judgment 10 are VACATED. Petitioner's case is REOPENED. Petitioner SHALL pay the five dollar filing fee within twenty-eight days of the date of this Order. See Full Written Order.(JS, ilcd)

E-FILED

Wednesday, 05 March, 2014 02:23:34 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
CHARLES DONELSON,
Petitioner,
v.
RICHARD HARRINGTON,
Respondent.

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Case No. 13-cv-1523

ORDER & OPINION
This matter is before the Court on Petitioner’s Motion to Reconsider (Doc.
11), filed on February 27, 2014. On October 21, 2013, Petitioner filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). The Court noted
Petitioner had not paid his filing fee, so ordered him to pay or file a motion to
proceed in forma pauperis. Petitioner then filed a motion to proceed in forma
pauperis, but this motion was denied because he had ample funds in his
institutional trust fund. (Doc. 5). The Court ordered Petitioner to pay the filing fee
within twenty-eight days or face dismissal for failure to prosecute. (Doc. 5). Soon
thereafter, Petitioner was transferred to a different institution, and the Court
ordered him to provide a notice of change of address to the Court. (Text Order, Dec.
2, 2013). When the Court did not receive either the filing fee or a notice of change of
address, the Court granted an extension sua sponte. (Text Order, Dec. 23, 2013).
After that date, Petitioner was again transferred, resulting in another extension.
(Text Order, Jan. 29, 2014). In each of these Orders, Petitioner was warned that
failure to comply with the new deadline could result in dismissal of his Petition. On

February 18, 2014, the Court, having still not received a filing fee or notice of a
change of address despite multiple extensions and warnings, dismissed the case
with prejudice for failure to prosecute. (Doc. 9). Judgment was entered to that effect
the same day. (Doc. 10).
In Petitioner’s Motion to Reconsider, he states that he was unable to
communicate with the Court or pay the filing fee because of his incarceration. He
attests that because of his transfers, he did not receive some of the text orders. He
also was not given pre-stamped envelopes to allow him to send a notice of change of
address, and could not pay for them because his money was still in a trust fund at a
previous institution. He also could not pay the filing fee despite his efforts to have it
sent because the trust fund that had his money for some reason did not send it.
Petitioner’s Motion is properly characterized as a motion to alter or amend a
judgment pursuant to Federal Rule of Civil Procedure 59(e), and was timely filed
within twenty-eight days after judgment was entered. Petitioner argues he is
entitled to have his case reopened because it is not his fault that he did not comply
with the Court’s orders, but rather the prison system prevented him from
communicating with the Court and paying his filing fee, in part because of his two
institutional transfers. Though Petitioner has a responsibility to notify the Court of
a change of address or problems with his filing fee, the Court recognizes the
limitations Petitioner faces while incarcerated. As a result, the Court exercises its
discretion to vacate the previous judgment, reopen the case, and give Petitioner
another opportunity to file the five dollar filing fee.

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Petitioner must pay the filing fee within twenty-eight days of the date of this
Order, or he will again face dismissal of his case for failure to prosecute. The Rule 4
assessment of Petitioner’s Petition will be postponed until the Court receives the
fee. If Petitioner becomes aware of a delay in payment or is still unable to have
money sent to the Court, he must notify the Court before the deadline to ask for an
extension.
IT IS THEREFORE ORDERED that Petitioner’s Motion to Reconsider (Doc.
11) is GRANTED. The Order dated February 18, 2014 (Doc. 9) and the
accompanying Judgment (Doc. 10) are VACATED. Petitioner’s case is REOPENED.
Petitioner SHALL pay the five dollar filing fee within twenty-eight days of the date
of this Order.

Entered this 5th day of March, 2014.

s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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