NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 21, 2015 *
Decided April 22, 2015
Before
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14-2255
MICHAEL BLAKES, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 11-cv-932-JPG-DGW
LINDA FOUTCH, et al., J. Phil Gilbert,
Defendants-Appellees. Judge.
ORDER
Michael Blakes, an Illinois prisoner, contends in this suit under 42 U.S.C. § 1983 that
a physician and nurse were deliberately indifferent to his medical needs in violation of the
Eighth Amendment. He moved to proceed in forma pauperis, see 28 U.S.C. § 1915(a),
providing account statements showing a balance of over $1,600 and average monthly
deposits of about $600 for the past six months. The district court granted the motion in
November 2011, but ordered Blakes to pay an initial, partial filing fee of $340.64. About two
years later, the district court discovered that Blakes had never paid the initial fee. It then
dismissed the action without prejudice after giving Blakes three warnings to pay and
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 14-2255 Page 2
determining that Blakes did not make “a good faith effort to pay any part of the assessed
fee.” Because the district court made no clear error in its factual findings, we affirm.
The magistrate judge ordered Blakes in November 2013 to show cause why he
hadn’t paid the “initial partial filing fee of $340.64” ordered two years earlier, “[o]n
November 16, 2011.” The judge warned Blakes that his case could be dismissed if he did
not pay or respond by January 2014. Blakes responded a few days later, giving as his sole
reason that he “has been and still is indigent,” and thus unable to pay. He attached a new
record of the transactions for his prisoner trust account. The magistrate judge determined
Blakes had the ability to pay when the initial filing fee was imposed, even if he had since
depleted his balance, and recommended to the district judge that Blakes be ordered to pay
the filing fee within 60 days or face dismissal.
Blakes objected to the recommendation, but the district court adopted it. He offered
a new reason for nonpayment: he said that he never received the November 2011 order and
that the prison, not he, controlled disbursement of the funds. In adopting the magistrate
judge’s recommendation, the district judge observed that in his response to the show-cause
order Blakes never mentioned not receiving the November 2011 order. The district judge
therefore discredited that new excuse but gave Blakes two months to pay the filing fee or
face dismissal. Blakes did not pay, but ten days before the deadline he moved to reconsider,
arguing that the 2013 show-cause order did not mention the fee order from November
2011, so he did not think to argue that he did not receive it. The district court rejected this
latest explanation and dismissed the case in May 2014, finding that Blakes had not made a
good faith effort to pay any part of the partial filing fee.
On appeal Blakes argues that the district court abused its discretion by dismissing
his suit. He repeats that he was not aware of the 2011 order until after the magistrate judge
recommended dismissal. Moreover, he adds, the prison controls his account and, in a new
argument not mentioned to the district court, in March 2014 he filed a grievance about the
trust-fund office’s handling of the 2011 order. Finally, he asserts, he cannot pay the filing
fee now.
The district court properly found that Blakes offered no good reason for failing to
pay the initial filing fee. Before dismissing a suit for nonpayment, a district court must give
a prisoner the opportunity to explain his failure to pay and determine if the failure was the
prisoner’s fault. See Sultan v. Fenoglio, 775 F.3d 888, 890 (7th Cir. 2015); Thomas v. Butts, 745
F.3d 309, 312 (7th Cir. 2014). We review its findings of fact for clear error. See Thomas v. Gen.
Motors Acceptance Corp., 288 F.3d 305, 307 (7th Cir. 2002). The district court gave Blakes
No. 14-2255 Page 3
ample opportunity to explain his failure to pay, and it did not clearly err in finding Blakes
at fault. Blakes’s first excuse for his late payment was indigence. But his account statements
from 2011 show that he had adequate funds to pay then. His second explanation was that
he did not know about the fee order when, or before, the magistrate judge issued the
show-cause order in 2013. But the district judge understandably rejected that explanation
because, contrary to it, the show-cause order explicitly refers to the “Order … directing
Plaintiff to pay an initial partial filing fee of $340.64” issued “[o]n November 16, 2011.”
Permissibly finding him not credible, the district court therefore reasonably concluded that
Blakes knew about his obligation to pay in 2011, when he had the means to pay, but did not
do anything to fulfill his obligation. Finally, his grievance to the prison about the
issue—coming five months after the show-cause order and not mentioned to the district
court—is too belated to change that conclusion.
AFFIRMED.