The following excerpt is from Selletti v. Carey, 173 F.3d 104 (2nd Cir. 1999):
12 We acknowledge the potential distinction between dismissal for failure to post a bond and dismissal for failure to pay a sanction, which more directly reflects misconduct by the party involved. Such misconduct itself might warrant dismissal if a plaintiff's financial circumstances eliminate the effectiveness of sanctions as a remedy or as a deterrent. See Herring v. City of Whitehall, 804 F.2d 464, 468 (8th Cir.1986) ("If the party is not capable of [paying discovery sanctions], the district court should then consider other sanctions. The ultimate sanction of dismissal with prejudice should only be used when lesser sanctions prove futile."). Nevertheless, where dismissal is predicated on the non-payment itself, as opposed to the underlying misconduct, the degree of that misconduct does not alter our analysis with respect to the significance of a party's inability to pay. See id. (holding that district court abused its discretion by dismissing for non-payment without inquiring into party's asserted inability to pay).
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