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Civil Procedure — in forma pauperis

By: WISCONSIN LAW JOURNAL STAFF//March 14, 2014//

Civil Procedure — in forma pauperis

By: WISCONSIN LAW JOURNAL STAFF//March 14, 2014//

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U.S. Court of Appeals for the Seventh Circuit

Civil

Civil Procedure — in forma pauperis

Before dismissing a prisoner’s civil rights claim for failure to pay any filing fee, the district court must determine the plaintiff’s ability to pay.

“Accordingly, before dismissing Thomas’s suit, the district court should have attempted to learn why the fee had not been paid by, for example, issuing a show-cause order. See Wilson, 313 F.3d at 1321; Hatchet, 201 F.3d at 654. Thomas asserts on appeal that he could not pay the initial fee because he simply had no funds and no income when payment was due. That may be correct: The transaction record that Thomas submitted to the district court shows that his ending account balance was only $0.02, that he received no deposits in the previous two months, and that only $1.50 had been deposited into the account during the previous three months. But the truth of his assertion that he lacked funds, and whether he can be faulted for lacking them, is for the district court to determine in the first instance.”

Vacated and Remanded.

12-2902 Thomas v. Butts

Appeal from the United States District Court for the Southern District of Indiana, Magnus-Stinson, J., Per Curiam.

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