Lo v. Milwaukee County Office of Corporation Counsel

Filing 16

ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 10/27/2020. Case DISMISSED without prejudice for plaintiff's failure to pay initial partial filing fee. (cc: all counsel, via mail to Xeng Lo at Milwaukee County Jail)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
XENG LO,
Plaintiff,
v.

Case No. 20-cv-965-pp

MILWAUKEE COUNTY OFFICE
OF CORPRATION COUNSEL,
Defendant.
______________________________________________________________________________
ORDER DISMISSING CASE WITHOUT PREJUDICE FOR FAILURE TO PAY
INITIAL PARTIAL FILING FEE
______________________________________________________________________________
Plaintiff Xeng Lo is representing himself in this §1983 case. When he
signed the complaint on June 14, 2020, he listed his address as “HOC—8885
South 68th Street, Milwaukee, Wisconsin.” Dkt. No. 1 at 1. That is the location
of the Milwaukee County House of Correction. https://county.milwaukee.gov/
EN/House-of-Correction.
When the plaintiff filed the lawsuit, he asked the court to allow him to
proceed without prepaying the filing fee. Dkt. No. 2. The Prison Litigation
Reform Act applies to this case because the plaintiff was incarcerated when he
filed his complaint. That statute allows prisoners to proceed with a case
without prepaying the full filing fee if, when funds exist, they pay an initial
partial filing fee. 28 U.S.C. §1915. On August 6, 2020, the court ordered that
by the end of the day on August 27, 2020, the plaintiff must pay an initial
partial filing fee of $6.00. Dkt. No. 9.
The court did not receive the $6.00 initial partial filing fee by August 7,
2020, and on August 11, 2020, a notice the court had sent the plaintiff at the
HOC was returned as undeliverable and unable to be forwarded. Dkt. No. 10.

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On August 20, 2020, the court received a letter from the plaintiff, saying, “Yes
you can take the $6.00 fee from my account, I give you guys permission and I
will try my best to make a monthly payment as best as possible.” Dkt. No. 11.
The return address on the envelope in which the plaintiff sent this letter was
the address of the House of Corrections. Dkt. No. 11-1.
The next day, in a text-only order, the court explained to the plaintiff that
the court could not arrange payment of the fee. Dkt. No. 12. The court stated
that the plaintiff needed to follow his institution’s policies to direct payment to
the court. Id.
The court mailed a copy of the order to the plaintiff at the House of
Correction. Id. A couple of weeks later, on September 9, 2020, the order was
returned to the court as undeliverable. Dkt. No. 13. The court contacted the
plaintiff’s supervising agent, learned the plaintiff was at the Milwaukee County
Jail and mailed the order to the plaintiff at the jail. Id.
On September 15, 2020, the court received another letter from the
plaintiff, explaining that he hadn’t paid the fee because he had been
transferred between the Milwaukee County Jail and the House of Correction
due to health issues. Dkt. No. 14. He explained that he was trying to get better,
and he assured the court he had the money to pay the fee. Id. Once again, he
gave the court permission to withdraw the fee from his account. Id.
The next day, on September 16, 2020, the court issued an order
repeating that it could not arrange payment of the fee and that the plaintiff had
to follow his institution’s policies to direct payment to the court. Dkt. No. 15.
Because the plaintiff had been moved between institutions, and because of his
health issues, the court gave the plaintiff a deadline of October 16, 2020 to pay
the initial partial filing fee. Id. The court warned the plaintiff that failure to pay
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the fee by the deadline could result in dismissal of his case. Id. The court
mailed that order to the plaintiff at the Milwaukee County Jail. Id.
The October 16, 2020 deadline has come and gone, and the plaintiff has
neither paid the fee nor provided the court with a written explanation of why he
could not pay the fee. The court checked the Milwaukee Sheriff’s Department
inmate locator web site; it shows that the plaintiff still is in custody at the
Milwaukee County Jail. http://www.inmatesearch.mkesheriff.org/. It has been
over a month since the court advised the plaintiff that it needed to receive the
initial partial filing fee by October 16, 2020 for the plaintiff to proceed with the
case.
The court ORDERS that this case is DISMISSED WITHOUT PREJUDICE
based on the plaintiff’s failure to pay the initial partial filing fee. Because the
court dismisses the case without prejudice, the plaintiff may refile his
complaint, subject to the relevant statute of limitations, assuming he has the
funds to pay an initial partial filing fee.
Dated in Milwaukee, Wisconsin, this 27th day of October, 2020.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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