Hammond v. James et al

Filing 48

ORDER DENYING WITHOUT PREJUDICE 45 Motion to Waive; DENYING WITHOUT PREJUDICE 47 Motion for Order to Show Cause; DENYING WITHOUT PREJUDICE 47 Motion. Signed by Magistrate Judge Donald G. Wilkerson on 11/22/13. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHAD HAMMOND,
Plaintiff,
v.
C/O JAMES, et al.,
Defendants.

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Case No. 3:13-cv-418-GPM-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are the Motion to Waive Initial Partial Filing Fee (Doc. 45)
and the Motion to Show Cause/Allow Action to Proceed (Doc. 47) filed by Plaintiff, Shad
Hammond, on November 7, 2013 and November 15, 2013, respectively. Both Motions are
DENIED without prejudice.
On May 21, 2013, District Judge G. Patrick Murphy ordered Plaintiff to pay an initial filing
fee of $16.05 (Doc. 10). That amount was based on the Motion to Proceed in forma pauperis filed
by Plaintiff on April 30, 2013 (Doc. 2) and the Trust Fund Account Statement filed on May 13,
2013 (Doc. 8) which showed a balance of $54.75 as of April 25, 2013. Title 28 U.S.C. § 1915,
which allows a party to proceed without the prepayment of the entire $350.00 filing fee.
However, Plaintiff is still obligated to pay the filing fee and was assessed an initial partial filing fee
consistent with 28 U.S.C. § 1915(b)(1). In light of Judge Murphy’s Order, it was clear that on
April 25, 2013, Plaintiff was capable of paying the initial filing fee. That Plaintiff chose to spend
those monies on things other than the assessed initial filing fee has no bearing on whether that
amount was due and owing. See Lumbert v. Illinois Dep’t of Corrections, 827 F.2d 257 (7th Cir.
1987); See also Lucien v. DeTella, 141 F.3d 773 (7th Cir. 1998). Plaintiff’s “current poverty”

does not authorize continuation of this suit “if he had the resources to comply with the statute at the
time the Act called for payment” nor does it excuse the failure to comply with this Court’s orders.
Robbins v. Switzer, 104 F.3d 895, 898 (7th Cir. 1997). Lest it be unclear, the obligation to pay the
initial filing fee rests with the Plaintiff, not the institution where he is housed. Plaintiff is again
reminded that he must pay the $16.05 filing fee or show cause by January 6, 2014, or risk
dismissal, without prejudice, of this lawsuit as outlined in the November 5, 2013 Order (Doc. 44).
If Plaintiff elects to show cause why he should not be required to pay the initial filing fee,
he shall attach a current inmate trust fund account statement to his response for the time period of
April 25, 2013 to the present and articulate in what manner he elected to spend the $54.75 that was
in his account on April 25, 2013.
IT IS SO ORDERED.
DATED: November 11, 2013
DONALD G. WILKERSON
United States Magistrate Judge

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