Beyer, Bernard L. v. Cormier, Rob G.

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2671
BERNARD L. BEYER,
Plaintiff-Appellant,
v.
ROB G. CORMIER, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99-C-359--Thomas J. Curran, Judge.
Submitted December 13, 2000--Decided December 22, 2000
Before FLAUM, Chief Judge, and RIPPLE and ROVNER,
Circuit Judges.
PER CURIAM. Bernard Beyer filed suit under 42
U.S.C. sec. 1983 against Rob Cormier, a building
inspector for the City of Green Bay, Wisconsin,
and other city officials. When Mr. Beyer failed
to pay the filing fee within the 21 days allotted
by the district court, the case was dismissed
with prejudice. Because we conclude that the
district court abused its discretion in
dismissing Mr. Beyer’s case with prejudice, we
vacate the district court’s order and remand the
case to the district court.
After filing his complaint, Mr. Beyer petitioned
the district court to proceed in forma pauperis
in April 1999. The district court granted that
request but required Mr. Beyer to pay a partial
filing fee of $71.83, see 28 U.S.C. sec.
1915(b)(1), within 21 days of its April 16, 1999
order. Mr. Beyer is a prisoner at Whiteville
Correctional Institution in Whiteville,
Tennessee. Although he is incarcerated at a
facility in Tennessee, Mr. Beyer is a Wisconsin
state prisoner. As a result, he remains under the
control and authority of the Wisconsin Department
of Corrections. Thus, while he remains in
Tennessee, Mr. Beyer must send a letter to prison
officials in Wisconsin and ask that they withdraw
the necessary funds from his account and mail a
check to the appropriate district court to pay
any required court costs.
On April 23, 1999, Mr. Beyer wrote to the
district court, asking to withdraw the motion to
proceed in forma pauperis. In this letter, he
stated that he did not want to risk incurring a
"strike" under the Prison Litigation Reform Act,
see 28 U.S.C. sec. 1915(g), by proceeding in
forma pauperis. He also accepted the
responsibility of paying the entire filing fee of
$150.00 and stated that he had sent a request
three days earlier, via letter, to the custodian
of inmate accounts at the Jackson Correctional
Institute in Black River Falls, Wisconsin. Mr.
Beyer reported that he asked that $150.00 be
withdrawn from his "Inmate Release Account" and
mailed to the clerk of the district court to pay
the filing fee. Because he had already sent his
request to the Jackson facility, the letter to
the district court stated that he anticipated
that the funds would be arriving at the clerk’s
office in Milwaukee, Wisconsin, shortly, well
within the 21-day limit set by the district
court.
Mr. Beyer’s 21-day limit was set to expire on
Friday, May 7, 1999. On Monday, May 10, not
having received any funds from Mr. Beyer, the
district court instead received a motion from Mr.
Beyer, requesting an extension until May 20 to
pay the filing fee. On May 11, 1999, the district
court dismissed Mr. Beyer’s action with prejudice
for failure to pay the fee.
Mr. Beyer finally received a response from the
Wisconsin prison trustees dated May 13, 1999.
That letter revealed to Mr. Beyer that this
particular district court, the Eastern District
of Wisconsin, did not allow the use of release
funds to pay filing fees. By the time Mr. Beyer
received this letter from the prison trustees,
the district court had already dismissed his
complaint with prejudice. Although Mr. Beyer
included the new information about the release
funds in three motions to reconsider, the
district court declined to revisit its decision.
We review a district court’s dismissal for want of
prosecution or for failure to follow a court order
for an abuse of discretion. Kruger v. Apfel, 214
F.3d 784, 786 (7th Cir. 2000); Grun v. Pneumo Abex
Corp., 163 F.3d 411, 425 (7th Cir. 1998). Dismissal
is a harsh sanction that should be reserved for
"extreme situations." Kruger, 214 F.3d at 787;
Dunphy v. McKee, 134 F.3d 1297, 1299 (7th Cir.
1998); see also Hatchet v. Nettles, 201 F.3d 651,
653 (5th Cir. 2000) (per curiam) (suggesting the
district court consider taking lesser steps before
entering a dismissal for failure to pay fee). In
the absence of contumacious conduct or a clear
record of disobeying court orders, it is an abuse
of discretion to dismiss without first firing a
warning shot or imposing other lesser sanctions.
See, e.g., Kruger, 214 F.3d at 787-88 (requiring
district court to consider alternatives before
imposing dismissal as "ultimate sanction"); Bolt v.
Loy, 227 F.3d 854, 856-57 (7th Cir. 2000)
(encouraging district courts to consider lesser
sanctions before dismissal).
In this case, the district court dismissed Mr.
Beyer’s case with prejudice before he could
attempt to pay the partial filing fee from a non-
release fund account in accordance with the
district court’s rules. When Mr. Beyer did not
meet the deadline, the district court did not
allow an extension or communicate with the prison
trustees to determine the status of his payment.
In addition, the district court declined to
consider Mr. Beyer’s explanation for his delay in
payment.
We conclude that the district court’s relatively
short deadline, the absence of a minimal
extension, and the dismissal with prejudice
constituted an abuse of discretion by the
district court.
Accordingly, we VACATE the judgment of the
district court and REMAND the case for further
proceedings.