Johnson v. Kilgore

Filing 24

OPINION AND ORDER: Court: (1) DISMISSES this case WITH PREJUDICE; (2) ORDERS the agency having custody of Courtney Johnson, IDOC # 191135, to remit to the clerk of this court all of the money in his inmate trust account AND all of the money de posited into his inmate trust account in the future, until he has paid the current arrearage of $340.28; and (3) DIRECTS the clerk to send a copy of this order to each facility where the plaintiff is housed until the filing fee has been paid in full.. Signed by Judge Rudy Lozano on 2/2/16. cc: Johnson, Inmate Trust Fund - Plainfield CF(mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
COURTNEY JOHNSON,
Plaintiff,
vs.
MARK KILGORE,
Defendant.

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CAUSE NO. 1:14-CV-306

OPINION AND ORDER
This matter is before the Court on the response (DE 19) to the
show cause order (DE 18) filed by Courtney Johnson, a pro se
prisoner, on January 28, 2016. For the reasons set forth below, the
court: (1) DISMISSES this case WITH PREJUDICE; (2) ORDERS the
agency having custody of Courtney Johnson, IDOC # 191135, to remit
to the clerk of this court all of the money in his inmate trust
account AND all of the money deposited into his inmate trust
account in the future, until he has paid the current arrearage of
$340.28; and (3) DIRECTS the clerk to send a copy of this order to
each facility where the plaintiff is housed until the filing fee
has been paid in full.

DISCUSSION
On December 2, 2014, Courtney Johnson, a pro se prisoner, was
ordered to immediately pay $35.55 as the initial partial filing fee
for this case. More than a year later on January 11, 2016, he had
paid only $9.72. So on January 11, 2016, Johnson was ordered to
show cause why he had not paid the full amount of the initial
partial filing fee in this case. He was ordered to attach a copy of
his inmate trust ledger showing every transaction from December 2,
2014, (the date when the filing fee order was issued) to present.
He was ordered to remit $25.83 immediately (or 100% of the money in
his inmate trust account if he has less than that amount).
In response he sent the Court a letter (DE 19). Johnson did
not write that he was or is unable to pay. Rather, he blames the
Grant County Jail and the Indiana Department of Correction for not
sending the money. It is true that inmates do not have full control
over their trust accounts. Sultan v. Fenoglio, 775 F.3d 888, 890
(7th Cir. 2015). Nevertheless, Johnson does not mention that he
ever made any effort to have the fee paid. Nor does not say he left
sufficient funds in his account so that it could be paid. He did
write that he would not even try to obtain a copy of his trust fund
ledger from the Grant County Jail. He did not attach a copy of his
Indiana Department of Correction ledger, and he makes no mention of
having tried to obtain one. He did not send any money nor say that

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he was going to send any money. In sum, his response is evasive and
inadequate.
Nevertheless, the Indiana Department of Correction (IDOC)
provided the court a copy of the ledger (DE 22) which Johnson
refused to submit. It shows that when he wrote his response (DE 19)
on

January

24,

2016,

he

had

$38.45

in

his

account.

This

demonstrates that he had the money to pay the $25.83 balance of the
initial partial filing fee – as he was ordered to do.
The Grant County Jail also provided the Court with a copy of
the ledger (DE 23) Johnson refused to submit. Together, these
ledgers (DE 22 and 23) show that Johnson received enough money
every month (except one) to have paid the balance of the initial
partial filing fee. Moreover, they show that if he had made the
required monthly installment payments, he would have already paid
off the entire $350.00 filing fee.
Month

Deposits

20%
$35.55

Initial Partial
December 2014

$227.25

$45.45

January 2015

$235.50

$47.10

February 2015

$140.25

$28.05

March 2015

$73.50

$14.70

April 2015

$222.25

$44.45

May 2015

$202.25

$40.45

June 2015

$44.18

$8.84

July 2015

$70.00

$14.00

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August 2015

$150.56

$30.11

September 2015

$11.53

$2.31

October 2015

$34.00

$6.80

November 2015

$47.50

$9.50

December 2015

$89.75

$17.95

January 2016

$39.00

$7.80

Total
Based

on

this

record,

it

is

$353.05
clear

that

Johnson

was

consistently able to make filing fee payments but did not do so.
This is unlike the inmate in Sulton who provided copies of his
ledger showing that he did not have the funds to pay the fee. It is
also unlike Sulton because there the inmate provided proof that he
had authorized the prison to pay the fee and had asked his daughter
to send the money as well. Rather, this case is like the one
envisioned

by

the

court

in

Sulton

of

the

inmate

who

“was

intentionally depleting his trust account to avoid paying his
filing fee.” Id., 775 F.3d 891. See also Blakes v. Foutch, 600 F.
App’x 1004, 1005 (7th Cir. 2015) (“The district court gave Blakes
ample opportunity to explain his failure to pay, and it did not
clearly err in finding Blakes at fault.”)
Therefore this case will be dismissed with prejudice because
Johnson spent his money on commissary purchases (DE 22 and 23) for
months rather than trying to make the required filing fee payments.
See Sultan, 775 F.3d at 891 (“See Cosby [v. Meadors], 351 F.3d

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[1324,] 1333-34 (affirming dismissal [with prejudice] when prisoner
spent funds at prison canteen instead of paying filing fee).”)
Nevertheless, Johnson remains obligated to pay the full filing
fee because “if a prisoner brings a civil action . . . the prisoner
shall be required to pay the full amount of a filing fee.” 28
U.S.C. § 1915(b)(1). Moreover, “[a] prisoner who fails to ensure
that the required sum is remitted in one month must make it up
later; the statute does not allow deferral past the time when
application of the formula would have produced full payment.”
Lucien v. DeTella, 141 F.3d 773, 776 (7th Cir. 1998). As discussed
above, the deferral time as expired and Johnson should have already
paid the entire filing fee in full. Thus, the remaining balance of
the filing fee is now due immediately, and he must pay 100% of the
money deposited into his trust account until this arrearage is
paid. Because Johnson is delinquent in paying these fees and
because he may no longer defer payment, it is no longer relevant
whether he receives ten or more dollars in a month: all of the
money in his inmate trust account must be taken to pay the
arrearage. Id.

CONCLUSION
For the reasons set forth above, the Court: (1) DISMISSES this
case WITH PREJUDICE; (2) ORDERS the agency having custody of
Courtney Johnson, IDOC # 191135, to remit to the clerk of this
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court all of the money in his inmate trust account AND all of the
money deposited into his inmate trust account in the future, until
he has paid the current arrearage of $340.28; and (3) DIRECTS the
clerk to send a copy of this order to each facility where the
plaintiff is housed until the filing fee has been paid in full.

DATED: February 2, 2016

/s/RUDY LOZANO, Judge
United State District Court

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