Opinion
No. 19-2776
10-31-2019
Arden Pawneeleggins Plaintiff - Appellant v. Jared, Kitchen Boss, Mike Durfee State Prison Defendant - Appellee
Appeal from United States District Court for the District of South Dakota - Sioux Falls [Unpublished] Before BENTON, WOLLMAN, and KOBES, Circuit Judges. PER CURIAM.
South Dakota inmate Arden Pawneeleggins appeals the district court's dismissal of his pro se 42 U.S.C. § 1983 complaint for failure to comply with a court order to pay an initial partial filing fee. Having jurisdiction under 28 U.S.C. § 1291, the judgment is vacated and the case is remanded for further proceedings.
This court concludes that the dismissal of Pawneeleggins's action was an abuse of discretion because—based on his certified inmate account statements—it appears that his failure to make an initial partial payment on time was due to a lack of available funds. See Boyle v. Am. Auto. Serv., Inc., 571 F.3d 734, 742 (8th Cir. 2009) (standard of review); 28 U.S.C. § 1915(b)(1) (stating that court shall collect initial partial filing fee "when funds exist"), (b)(4) (providing that prisoner shall not be prohibited from bringing civil action because he lacks assets and means to pay initial partial filing fee); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (for prisoners whose prior account balances resulted in assessment of initial fee, but who do not have funds available when payment is ordered, § 1915(b)(4) should protect them from having their cases dismissed for non-payment).
The judgment is vacated and the case is remanded for further proceedings.