United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2548
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David Eugene Bailey, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
William McKinney, Doctor, Official *
and Individual Capacity; Unknown * [UNPUBLISHED]
Harrod, Dentist, Official and *
Individual Capacity; Lisa Spain, *
Medical Director, Official and *
Individual Capacity; Kim Unknown, *
Nurse, Official and Individual *
Capacity; Carla Unknown, Nurse, *
Official and Individual Capacity, *
*
Appellees. *
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Submitted: September 28, 2011
Filed: October 26, 2011
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Before SMITH, ARNOLD, and BENTON, Circuit Judges.
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PER CURIAM.
Former Missouri inmate David Bailey appeals from the district court’s Federal
Rule of Civil Procedure 41(b) dismissal of his action without prejudice. The
dismissal was based on his failure to comply with an order to pay an initial partial
filing fee within thirty days.
Upon careful review, we conclude that the dismissal of Mr. Bailey’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, and because the court neither inquired as to whether Mr. Bailey
had attempted to comply with the court’s order nor provided him an opportunity to
explain his failure to make a timely initial payment. See 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); Hatchet v. Nettles, 201 F.3d 651, 652-53 (5th Cir. 2000) (per curiam)
(holding that it was abuse of discretion for district court to dismiss action for failure
to comply with initial partial filing fee order, without making some inquiry regarding
whether prisoner had complied with order by submitting required consent form within
time allowed for compliance); see also Boyle v. Am. Auto. Serv., Inc., 571 F.3d 734,
742 (8th Cir. 2009) (standard of review). In addition, it appears that the district court
received and accepted Mr. Bailey’s initial partial filing fee after the court dismissed
his action.
Accordingly, we vacate the district court’s Rule 41(b) dismissal, and we
remand the case for further proceedings consistent with this opinion. We also deny
all pending motions.
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