Submitted December 11, 2014.[*]
Appeal from the United States District Court for the Southern District of Illinois. No. 12-cv-1229-MJR-SCW --. Michael J. Reagan, Chief Judge.
Charles Sultan, Plaintiff - Appellant, Pro se, Sumner, IL.
For JAMES FENOGLIO, Doctor, Medical Physician, Wexford, ELAINE HARDY, Nurse Practitioner, Wexford at HCU, Lawrence CC, TAMMY KIMMEL, LPN, Wexford at HCU, Lawrence CC, Defendants - Appellees: Timothy Patrick Dugan, Attorney, Dennis S. Harms, Attorney, Sandberg Phoenix & Von Gontard P.C., St. Louis, MO.
For PHIL MARTIN, Health Care Unit Administrator Lawrence CC, ROBERT BOLDREY, Correction Lieutenant, Lawrence CC, Defendants - Appellees: Linda Boachie-Ansah, Attorney, Office of The Attorney General, Civil Appeals Division, Chicago, IL.
Before WOOD, Chief Judge, and FLAUM and ROVNER, Circuit Judges.
Wood, Chief Judge.
Charles Sultan, an Illinois inmate, asserts in this lawsuit that medical providers and other staff at the Lawrence Correctional Center forced him to live in unsanitary conditions and denied him medical care in violation of the standards required by the Eighth Amendment, as it applies to the states. More than a year after his suit was filed, and while the defendants' motions for summary judgment were pending,
the district court on its own initiative dismissed the case on the ground that Sultan had not paid the initial partial filing fee that the court had assessed pursuant to 28 U.S.C. § 1915(b)(1). We conclude that the court should not have taken this step, and we thus remand for further proceedings.
At the time Sultan filed his complaint in December 2012, he moved to proceed in forma pauperis. As required by 28 U.S.C. § 1915(a)(2), he attached a certified statement from his prison trust account showing the " funds available" and charges made during the previous six months. The statement revealed that his account was more than $300 in the red. The district court granted Sultan's motion and assessed an initial partial filing fee of $2.02. (Presumably the court settled on this number because it is approximately 20% of the average monthly deposits to Sultan's account; he earns $10 per month from a prison job. See 28 U.S.C. § 1915(b)(1)(A).)
Apparently because Sultan's account had less than zero dollars in it, the prison did not remit the required $2.02 to the district court. In November 2013, a magistrate judge entered a minute order directing Sultan to show cause why the action should not be dismissed for failure to pay. Sultan responded that he did not control his prison trust account and that it was the account administrator at Lawrence who was at fault for not forwarding payment. He also informed the magistrate judge that his daughter had tried to wire the money through Western Union. Sultan tendered an updated statement from his prison trust account, a grievance he submitted to prison administrators complaining that staff had not complied with the district court's order to send the fee, and a Western Union receipt showing payment of $2.25 to " District Court 49 3 03." Telling Sultan that the responsibility for paying rested with him, the magistrate judge rejected Sultan's response as " unavailing." The judge also informed Sultan that the Western Union receipt did not qualify as proof of payment. He gave Sultan another 30 days, until February 3, 2014, to pay the fee.
Before that deadline, Sultan filed a motion seeking 30 more days to pay. He explained again that he could not control disbursements from his trust account (by then even more deeply in the hole), and he pleaded that he needed more time to request payment from that account. He later sent a copy of a form entitled " Offender Authorization for Payment" dated January 14, which had been returned stamped " insufficient funds." Sultan's account statement shows that indeed he lacked sufficient funds to pay the $2.02 fee on January 14. On January 17, Sultan received a " payroll adjustment" of $9.52, but for unexplained reasons the account administrator did not apply that amount against Sultan's deficit. For the next six weeks at least, $2.02 may have been available to send to the clerk of the court.
The magistrate judge did not rule on Sultan's motion until two days after the February 3 deadline. At that point he denied it on the ground that Sultan had not shown good cause for an extension. The next day the district court dismissed Sultan's suit with prejudice for failure to prosecute. The court reasoned that Sultan had not " denied having the requisite funds." Sultan timely moved for reconsideration, which the district judge denied. The court mistakenly asserted that it could not rule on Sultan's motion because he already had filed a notice of appeal from the dismissal. See ...