Poff, William v. Durkan, Jenny et al

Filing 14

ORDER: Within fourteen (14) days the plaintiff shall either: (1) pay the IPFF; or (2) file documentation establishing that he lacks funds to pay the IPFF. Failure to take one of those courses of action will result in the dismissal of this case without prejudice and without further notice of the Court.. Signed by Judge J. P. Stadtmueller on 3/28/14. (jat)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WISCONSIN
WILLIAM POFF,
Plaintiff,
v.
Case No. 13-CV-815-JPS
JENNY A. DURKAN,
SARAH Y. VOGEL,
MICHAEL SCOVILLE,
JOHN W. VAUDREUIL,
MUNISH SHARDA,
ROBERT G. BROWNELL,
PAUL L. SCHLIEVE,
MARK RUPPELT,
PETER FREITAG,
JOSEPH D. LAVELLE,
and STACY MAIER,

ORDER

Defendants.
The plaintiff filed this case on November 19, 2013. (Docket #1). The
Court thereafter ordered that the plaintiff file a trust fund account statement,
so that the Court could compute the plaintiff’s initial partial filing fee (IPFF).
(Docket #5). In response, the plaintiff filed a partial statement. (Docket #7).
The Court, therefore, had to file another order requesting that the plaintiff
file a complete financial statement. (Docket #8). The plaintiff complied, and
filed the required statement on January 31, 2014. (Docket #11). The court
thereafter assessed an IPFF of $26.66 against the plaintiff, and requested that
he pay the fee on or before March 6, 2014. (Docket #12, at 3).
March 6, 2014, has long since passed, and the plaintiff still has not paid
the required fee. Ordinarily, the Court would dismiss this matter due to the
plaintiff’s failure to pay the IPFF, as required. However, just recently, the

Seventh Circuit decided Thomas v. Butts, Case No. 12-2902 (March 13, 2014)
(per curiam). In that case, the district judge dismissed a prisoner’s Eighth
Amendment suit for non-payment of an IPFF; the Seventh Circuit vacated
the district judge’s dismissal, finding that the district judge erred by failing
to determine whether the prisoner was at fault for not paying the fee. Thomas,
Case No. 12-2902, slip op., at 5–7. The Seventh Circuit determined that,
before dismissing a prisoner case for non-payment, a district court must first
determine whether the non-payment happened as a result of a prisonerplaintiff’s lack of assets. Thomas, Case No. 12-2902, at 5 (citing 28 U.S.C.
§ 1915(b)(4) (“In no event shall a prisoner be prohibited from bringing a civil
action or appealing a civil or criminal judgment for the reason that the
prisoner has no assets and no means by which to pay the initial partial filing
fee.”); Wilson v. Sargent, 313 F.3d 1315, 1321 & n.7 (11th Cir. 2002) (vacating
dismissal where prisoner did not receive opportunity to explain nonpayment); Beyer v. Cormier, 235 F.3d 1039, 1041 (7th Cir. 2000) (vacating
dismissal for failure to consider explanation for non-payment); Hatchet v.
Nettles, 201 F.3d 651, 654 (5th Cir. 2000) (vacating dismissal where district
judge failed to ascertain reasons for non-payment); Taylor v. Delatoore, 281
F.3d 844, 850–51 (9th Cir. 2002) (noting that dismissal is inappropriate when
prisoner lacks funds)).
The Court, therefore, must first inquire into the plaintiff’s reasons for
non-payment. In sum, the plaintiff should, within fourteen (14) days, either:
(1) pay the IPFF; or (2) file documents with the Court indicating that he lacks
the required funds. If the plaintiff pays the IPFF, then the Court will process
this case in the typical fashion. If the plaintiff files documents indicating a
lack of funds, then the Court will have to enter a further order allowing him
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to proceed without prepayment of fees. If, on the other hand, the plaintiff
neither pays the fees nor files the documentation establishing his lack of
funds, then the Court will dismiss this case.
Accordingly,
IT IS ORDERED that, within fourteen (14) days of the date of this
order, the plaintiff shall either: (1) pay the IPFF as more fully detailed in
Docket Entry No. 12; or (2) file documentation establishing that he lacks
funds to pay the IPFF. Failure to take one of those courses of action will
result in the dismissal of this case without prejudice and without further
notice of the Court.
Dated at Milwaukee, Wisconsin, this 28th day of March, 2014.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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