[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 6, 2008
THOMAS K. KAHN
No. 07-14375
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 07-00195-CV-OC-10-GRJ
YOLONDA DEYVONNE BURT,
Plaintiff-Appellant,
versus
STAN YATES, Former Warden,
WARDEN, FCC Coleman – US PROBATION OFFICE I,
Tracy W. Johns,
R. VICKERS, Correctional Officer,
FNU GRANT, Lieutenant,
FNU BURKE, Correctional Officer, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 6, 2008)
Before CARNES, BARKETT, and HILL, Circuit Judges.
PER CURIAM:
Plaintiff’s complaint was dismissed sua sponte by the district court for
failure to pay the partial initial filing fee. There is nothing in the record to indicate
that the district court took any steps to ascertain whether the failure to pay was
within the prisoner’s control, as required by Wilson v. Sargent, 313 F.3d 1315,
1321 (11 th Cir. 2002). Nor is there anything in the record to indicate that the
plaintiff was aware of the local rule of procedure, M.D. Fla. Local Rule of
Procedure 1.03(e), upon which the district court relied in dismissing plaintiff’s
complaint, as required by Czetli v. Secretary, 212 Fed. Appx. 879, 881 (11 th Cir.
2006). Inasmuch as both Wilson and Czetli clearly establish that such steps must
be taken before the district court may sua sponte dismiss an indigent prisoner’s pro
se complaint, it was an abuse of discretion for the district court to have dismissed
the complaint. Wilson, 313 F.3d at 1320. Accordingly, we vacate the dismissal
and remand the case for further proceedings.1
VACATED AND REMANDED.
1
As a factual matter, it appears that the Bureau of Prisons (BOP) is to blame for the
failure to timely pay the filing fees, as the required amounts were deducted from plaintiff’s
prison account within the time required by the court, but the BOP failed to transmit the funds to
the Clerk of the district court in a timely manner.
2