Green v. Belford

Filing 17

ORDER DISMISSING CASE. This case is DISMISSED without prejudice for failure to pay the initial partial filing fee. Signed by Judge Nancy J. Rosenstengel on 6/8/15. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT GREEN,
Plaintiff,
vs.
JAMES BELFORD,
Defendant.

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Case No. 15-CV-40-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court sua sponte for case management purposes. Robert
Green filed a civil rights action under 42 U.S.C. § 1983 and a motion to proceed in forma
pauperis (“IFP”) on December 10, 2014 (case number 14-cv-1364-NJR-DGW, Doc. 1). At
that time, Green was incarcerated at Shawnee Correctional Center.
Following the Court’s threshold review of the complaint pursuant to 28 U.S.C. §
1915A, Green’s claims against James Belford were severed into a new case with the
above-captioned case number (Doc. 1). The IFP motion that Green filed in the original
matter was also filed in the new case (Docs. 1, 3). Before the Court ruled on the IFP
motion in the new case, Green was released from prison (see Doc. 6). Because he was
incarcerated at the time he filed his original complaint and at the time the new case was
opened, however, the Prison Litigation Reform Act and the prisoner provisions of 28
U.S.C. § 1915 still applied. See Robbins v. Switzer, 104 F.3d 895, 897 (7th Cir. 1997).

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Based on the information in Green’s trust fund account statement, the Court
assessed an initial partial filing fee of $51.22 in this case (Doc. 10). 28 U.S.C. § 1915(b).
Green was ordered to pay the initial partial filing fee within fourteen days (Doc. 10). He
was furthered ordered to pay the remaining balance of the $350 filing fee ($298.78) or file
an updated IFP motion with regard to the balance within fourteen days (Doc. 10). He
was warned that failure to comply with the Court’s Order would result in the dismissal
of his case (Doc. 10).
Green filed an updated IFP motion with respect to the balance of the filing fee
(Doc. 11), but he did not pay the initial partial filing fee. He made no attempt to explain
why he did not pay the fee, nor did he seek additional time to do so. Instead of
dismissing his case, the Court gave Green another opportunity. He was ordered to show
cause why the case should not be dismissed for failure to pay the partial filing fee (Doc.
15). He was warned that his case would be dismissed if he did not pay or respond by
June 4, 2015 (Doc. 15). Green did not respond to the show cause order by the deadline.
A prisoner’s release from confinement does not eliminate his obligation to pay the
initial partial filing fee that, according to the trust account statements, he could have
paid at the time he filed the action. Lucien v. DeTella, 141 F.3d 773, 776 (7th Cir. 1998);
Robbins v. Switzer, 104 F.3d 895, 899 (7th Cir. 1997). If a prisoner fails to pay the initial
partial filing fee, his case will be dismissed. Robbins, 104 F.3d at 899 (“A dismissal for
failure to pay that sum would not offend § 1915(b)(4); it would simply enforce the
obligation created by § 1915(b)(1).”). See also Blakes v. Foutch, 600 Fed. Appx. 1004, 1005–
06 (7th Cir. 2015) (affirming dismissal of case for failure to comply with Court’s order to

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pay initial partial filing fee); Bates v. Thompson, 234 F.3d 1272 (7th Cir. 2000) (same).
“Before dismissing a suit for nonpayment, however, a district court must give a prisoner
the opportunity to explain his failure to pay and determine if the failure was the
prisoner’s fault.” Blakes, 600 Fed. Appx. at 1005 (citing Sultan v. Fenoglio, 775 F.3d 888, 890
(7th Cir. 2015)); Thomas v. Butts, 745 F.3d 309, 312 (7th Cir. 2014).
The Court has given Green amply opportunity to pay the partial filing fee or
explain why he is unable to do so. But Green chose to ignore the Court’s orders, and he
took no action despite being warned of the consequences. Without any information from
Green, the Court cannot simply assume that he was not at fault in failing to pay the
partial filing fee. Accordingly, this case is DISMISSED without prejudice for failure to
pay the initial partial filing fee.
IT IS SO ORDERED.
DATED: June 8, 2015
s/ Nancy J. Rosenstengel
NANCY J. ROSENSTENGEL
United States District Judge

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