Dmytryszyn v. Clements et al

Filing 101

ORDER Directing Payment or To Show Cause re: 80 MOTION to Dismiss for Lack of Prosecution Failure to Pay the Filing Fee filed by Bernadette Scott, Bolt, Magelson, Stephen Ladd, Bilderava, James Falk, T. Scott, by Magistrate Judge Nina Y. Wang on 09/09/15. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-03241-CMA-NYW
ADAM DMYTRYSZYN,
Plaintiff,
v.
TOM CLEMENTS, Executive Director,
LT. BERNADETTE SCOTT,
CAPTAIN T. SCOTT,
LT. MAGGELSON,
MAJOR BILDERAVA,
CAPTAIN BOLT,
SERGEANT STEPHEN LADD, and
SUPERINTENDENT JAMES FALK,
Defendants.
______________________________________________________________________
ORDER DIRECTING PAYMENT OR TO SHOW CAUSE
______________________________________________________________________
Magistrate Judge Nina Y. Wang
This matter comes before the court on Defendants Bilderaya, Bolt, Falk, Ladd,
Maggelson, Bernadette Scott, and T. Scott’s (collectively, “Defendants”) Motion to
Dismiss for Failure to Make Payment Toward the Filing Fee, filed on April 8, 2015 [#80]
(“Motion to Dismiss”). The Motion to Dismiss was referred to this Magistrate Judge
pursuant to the Order Referring Case dated November 18, 2013 [#36], the
Reassignment dated February 9, 2015 [#69] and the Memorandum dated April 10, 2015
[#81].

The court has carefully considered the Motion to Dismiss, Plaintiff Adam

Dmytryszyn’s Response [#86], and Defendants’ Reply [#88], and the applicable case

law. Because neither party adequately addressed Plaintiff Adam Dmytryszyn’s failure to
comply with a previous court order directing payments of the filing fee in installments
during his incarceration, this court orders Plaintiff to make payment of the $350 filing fee
to the Clerk of the Court for the United States District Court for the District of Colorado,
or to show cause why this case should not be dismissed pursuant to Fed. Rule Civ. P.
41(b) for failure to make payments as directed by prior court order.
BACKGROUND
Plaintiff Adam Dmytrysyzn (“Plaintiff” or “Mr. Dmytryszyn”) filed his Complaint in
this action on December 12, 2012. [#1] (the “Complaint”). At the time of filing, Mr.
Dmytryszyn was incarcerated at the Colorado Department of Corrections’ correctional
facility in Sterling, Colorado. [Id. at 6].1

The factual core of Plaintiff’s subsequently

amended Complaint, as pled, is that a number of employees at that correctional
facility—including the remaining Defendants in this litigation (i.e. Defendants Bernadette
Scott, Lieutenant T. Scott, Lieutenant Maggelson, Major Bilderava, Captain Bolt, and
Superintendent James Falk)—improperly censored a publically available report from the
United States Department of Justice that Mr. Dmytrysyzn wished to rely on in
challenging the criminal conviction giving rise to his incarceration. [#28 at 4-15]. Based
on these allegations, this court previously held that Plaintiff’s Amended Complaint
sufficiently pled a 42 U.S.C. § 1983 claim for alleged violations of Mr. Dmytrysyzn’s
constitutional rights under the First and Fourteenth Amendments. [#57].

1

Because Mr. Dmytrysyzn’s original and amended Complaints are not consecutively
paginated, the court cites to the page numbers assigned by the CM/ECF docketing
system.
2

Under 28 U.S.C. § 1915 of the Prisoner Litigation Reform Act (“PLRA”), a
prisoner seeking to initiate a lawsuit in federal court is obliged to pay the full amount of a
filing fee. However, under § 1915(b)(1), a prisoner lacking the financial means to pay in
full at the time of filing may seek relief to proceed in forma pauperis (“IFP”), allowing the
prisoner to pay the fee in installments. Concurrent with the filing of his Complaint, Mr.
Dmytryszyn also filed a Motion and Affidavit seeking relief to proceed IFP. [#3]. On
December 14, 2014, the court granted Mr. Dmytryszyn’s request (the “IFP Order”). [#8].
The court’s IFP Order expressly provided that “Plaintiff’s custodian shall disburse from
Plaintiff’s prison account monthly payments of 20 percent of the preceding month’s
income credited to this prison account until he has paid the total filing fee of $350.00.”
[Id. at 2]. The IFP Order also expressly warned that “[i]nterference by Plaintiff in the
submission of these funds shall result in the dismissal of this action.” [Id.].
In their Motion to Dismiss for Failure to Make Payment Toward the Filing Fee
[#80] (“Motion to Dismiss”), Defendants note that the “docket does not reflect that
Plaintiff has made any payments of any amount toward the $350 filing fee, nor has he
filed any documents to show cause why he cannot do so.” [#80 at 3]. Defendants also
observe that Plaintiff provided the court notice in March of 2015 that he had moved out
of the state of Colorado after being released on parole.

[Id.].

In response, Mr.

Dmytryszyn contends that his apparent failure to make any payment during more than
two years of incarceration "is strictly the concern of the court clerk.”
(“Response”).

[#86 at 1]

Mr. Dmytryszyn also asserts that, because he is now paroled, the

PLRA’s monthly payment installment requirements no longer apply to him. [Id.].

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ANALYSIS
I.

Standard of Review
Under Rule 41(b) of the Federal Rules of Civil Procedure, “[i]f the plaintiff fails to

prosecute or to comply” with the Federal Rules “or a court order,” a defendant “may
move to dismiss the action or any claim against it.” Id. In considering whether to
dismiss a case with prejudice under Rule 41(b), the court must assess: “(1) the amount
of actual prejudice to the opposing party; (2) the degree of interference with the judicial
process; (3) the litigant's culpability; (4) whether the litigant was warned in advance that
dismissal was a likely sanction; and, (5) whether a lesser sanction would be effective.”
Cosby v. Meadors, 351 F.3d 1324, 1333 (10th Cir. 2003) (citing Ehrenhaus v. Reynolds,
965 F.2d 916, 921 (10th Cir. 1992)). By contrast, pursuant to Rule 41(b), a district court
may enter dismissal without prejudice “without attention to any particular procedures.”
Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1162 (10th Cir. 2007).
II.

Application to Motion to Dismiss
In their Motion to Dismiss, Defendants argue that Plaintiff’s failure to pay any

filing fees during incarceration or since his parole should result in dismissal of this
action. [#80 at ¶ 15]. Defendants also argue that Plaintiff has failed to move for in
forma pauperis status since his release. [Id. at ¶ 14]. Plaintiff’s Response, however,
principally consist of argument regarding whether and how the PLRA’s filing fee
requirements might continue to apply to prisoners who initiate litigation while
incarcerated, successfully seek IFP filing status pursuant to the PLRA, and are
subsequently released while the litigation remains pending (and some or all applicable
filing fees remain unpaid). [#86 at 1].

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The Tenth Circuit has previously declined “to decide whether the PLRA’s filing
fee requirements apply to a complainant who is incarcerated at the time he files notice
of appeal but is subsequently released.” Carson v. Tulsa Police Department, 266 F.
App’x 763, 767 (10th Cir. 2008) (noting split of authority in the courts of other circuits).
For purposes of this show-cause order, this court also need not resolve that question
because it appears that, based on the record before the court, Plaintiff has failed to
make any payments toward the filing fee of this action. [#80 at ¶¶ 7, 9]. Given the fact
that the IFP Order was entered in December 2012, it is unclear whether there would be
any balance to the $350 filing fee at the time of Plaintiff’s release from incarceration.
Even if Plaintiff’s monthly payment obligations under the PLRA terminated on release
going forward, that alone would not excuse or cure prior failure to comply with an order
of this court, his apparent failure to pay any of the filing fee, or his failure to file for in
forma pauperis status as a non-prisoner. See Duran v. Crandell, Civil Action No. 10-cv2490-PAB-KMT, 2012 WL 1414449, *1-*2 (D. Colo. April 24, 2012).
The court accordingly orders Mr. Dmytryszyn, no later than September 30, 2015,
to (1) make the payment of the $ 350 filing fee; or (2) to show cause in writing why this
case should not be dismissed with prejudice pursuant to Fed. Rule Civ. P. 41(b), or, in
the alternative, why it should not be dismissed without prejudice, for failure to comply
with the IFP Order. The written response contemplated by this order should explain all
efforts undertaken by Mr. Dmytryszyn to comply with the court’s December 14, 2012
IFP Order [#8]. In addition, to the extent that Mr. Dmytryszyn takes the position that he
has no assets and no means by which to make the payment, he must also file a proper
amended motion for leave to proceed in forma pauperis no later than September 30,

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2015. Plaintiff is advised that if he fails to comply with these requirements, this court will
recommend that this case be dismissed for failure to comply with this Order and with the
court’s prior IFP Order.
CONCLUSION
Based on the court’s review of the papers and application of the pertinent case
law, IT IS HEREBY ORDERED that:
(1) IT IS ORDERED that no later than September 30, 2015, Plaintiff Adam
Dmytrysyn shall make payment of the $350 filing fee to the Clerk of the Court
for the United States District Court for the District of Colorado, or show cause,
in writing, on or before September 30, 2015, why this action should not be
dismissed with prejudice pursuant to Fed. Rule Civ. P. 41(b) based on
Plaintiff’s apparent failure to comply with the court’s December 14, 2012 IFP
Order [#8], or, in the alternative, why this action should not be dismissed
without prejudice; and
(2) To the extent that Plaintiff takes the position that he has no assets and no
means by which to make the payment, he must file a proper amended motion
for leave to proceed in forma pauperis no later than September 30, 2015.

DATED September 9, 2015.

BY THE COURT:

/s/ Nina Y. Wang___________
United States Magistrate Judge

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