Warmsley v. Polunsky

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-11471
Summary Calendar
RAY WARMSLEY, on behalf of the Families of
Prisoners and all Prisoners who are upon and after
the filing of this action similarly situated as
the Plaintiff Class,
Plaintiff-Appellant,
versus
ALLEN POLUNSKY, and Members of the Texas Board of
Criminal Justice, and all Texas Department of Criminal
Justice -- Institutional Division’s Prison Security Guards,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:98-CV-192-C
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February 4, 2000
Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Ray Warmsley, Texas prisoner #440277, appeals from the
dismissal of his civil rights complaint without prejudice and the
denial of his motion to reinstate his complaint. Warmsley moves
for reimbursement of the costs of his appeal and an award of
attorney fees. Warmsley’s motion is DENIED.
Warmsley’s complaint was dismissed because he did not comply
with the district court’s order assessing him pursuant to the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-11471
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Prison Litigation Reform Act (PLRA) within the time allowed by
the district court. Warmsley contends that the district court
erred by dismissing his complaint and denying his motion for
reinstatement because he did all in his power to ensure the
submission of the initial partial filing fee.
The dismissal of Warmsley’s complaint without prejudice was
an abuse of discretion. Larson v. Scott, 157 F.3d 1030, 1031
(5th Cir. 1998). The district court made no inquiry regarding
whether Warmsley had complied with the initial partial filing fee
order. Prisoners have no control over the processing of their
prison trust-fund withdrawals after they have consented to those
withdrawals, when consent is required. We hold that it is an
abuse of discretion for a district court to dismiss an action for
failure to comply with an initial partial filing fee order
without making some inquiry regarding whether the prisoner has
complied with the order.
If a prisoner appears not to have complied with the district
court’s initial partial filing fee order within the applicable
time period, the district court should make a reasonable inquiry
designed to ascertain whether the prisoner has complied with the
order. Failure to make such an inquiry will render a subsequent
dismissal of failure to comply an abuse of discretion. Larson,
157 F.3d at 1031. The relevant inquiry regarding whether the
prisoner has complied with an initial partial filing fee order
may be made by allowing objections to a magistrate judge’s
report, see 28 U.S.C. § 636(b)(1)(C), issuing a show-cause order,
see Harrelson v. United States, 613 F.2d 114, 116 (5th Cir.
No. 98-11471
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1980), communicating by telephone, fax, or e-mail with prison or
jail officials, issuing an order to the custodial institution, or
using any other method designed to obtain the relevant
information. Any inquiry, and any response, must be reflected on
the record so that this court may review any subsequent
dismissal. When a prisoner is allowed to respond to a magistrate
judge’s report or a show-cause order, a sworn affidavit or
unsworn declaration made under penalty of perjury, 28 U.S.C.
§ 1746, indicating that he has complied with the initial partial
filing fee order and setting forth the details of his compliance
or copies of any relevant consent forms ordinarily will be
sufficient to avoid dismissal for failure to comply. Prisoners
are reminded that false statements in their pleadings may result
in sanctions against them, see FED. R. CIV. P. 11(c), including
dismissal with or without prejudice, and that false statements in
an affidavit or unsworn declaration made under penalty of perjury
may result in prosecution for perjury. 18 U.S.C. § 1621.
Warmsley submitted a statement made under penalty of perjury
setting forth the facts of his compliance. The district court
should obtain information from the Texas Department of Criminal
Justice to determine whether Warmsley indeed complied with the
initial partial filing fee order within the time allowed for
compliance by submitting the required consent forms to prison
authorities.
Accordingly, IT IS ORDERED that the judgment of the district
court dismissing Warmsley’s action is VACATED and that his case
is REMANDED for further proceedings.
No. 98-11471
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VACATED AND REMANDED.