Sellers v. Kazm et al

Filing 6

Judge Denise J. Casper: ORDER entered. This action is DISMISSED WITHOUT PREJUDICE to the plaintiff filing a motion to reopen within twenty-one days of the date of this order. If Sellers elects to file a motion to reopen, he must submit therewith either payment for the $400 filing fee or a motion for leave to proceed in forma pauperis. The Clerk shall provide plaintiff with an Application to Proceed in District Court Without Prepaying Fees or Costs.(PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOHN ROBERT SELLERS, JR.,
Plaintiff,
v.
DOCTOR KAZM, et al.,
Defendants.

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Civil Action No. 16-10426-DJC

ORDER
CASPER, J.

April 27, 2016

On February 26, 2016, plaintiff John Robert Sellers, Jr. filed a complaint, D. 1, without
paying the $400 filing fee or seeking leave to proceed without prepayment of the fee. In an order
dated March 17, 2016, D. 4, the Court ordered Sellers to pay the $400 filing fee or seek leave to
proceed in forma pauperis. The Court warned the plaintiff that failure to do so within twenty-one
days could result in dismissal of this action. In a footnote, the Court noted that prisoner plaintiffs,
unlike other civil litigants, are not entitled to a waiver of the filing fee. Rather, these plaintiffs may
proceed without prepayment of the filing fee but nonetheless must pay the fee over time. See 28
U.S.C. § 1915(b)(1)-(2).
The deadline for complying with the Court’s order has passed without any response from the
plaintiff. However, it has since come to the Court’s attention that Sellers is not a “prisoner” within
the meaning of the statute that requires prisoners to pay the filing fee over time. See, e.g., Perkins
v. Hedricks, 340 F.3d 582 (8th Cir. 2003) (per curiam) (holding that a civilly committed person is
not a “prisoner” within the meaning of 28 U.S.C. § 1915(h)); see also United States v. Sellers, C.A.
No. 00-00467, D. 74 (E.D.N.C. June 5, 2014 (finding that Sellers continues to meet the criteria for
civil commitment under 18 U.S.C. § 4246). Thus, if granted in forma pauperis status, Sellers would
not be required pay the filing fee over time.
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In light of Sellers’s lack of response to the Court’s March 17, 2016 order, the Court will
dismiss this action. However, the dismissal will be without prejudice to filing a motion to reopen
the case. If the case is reopened and the Court grants Sellers in forma pauperis status, he will not
be required to pay the filing fee.
Accordingly, this action is DISMISSED WITHOUT PREJUDICE to the plaintiff filing a
motion to reopen within twenty-one days of the date of this order. If Sellers elects to file a motion
to reopen, he must submit therewith either payment for the $400 filing fee or a motion for leave to
proceed in forma pauperis. The Clerk shall provide plaintiff with an Application to Proceed in
District Court Without Prepaying Fees or Costs.
So ordered.
/s/ Denise J. Casper
United States District Judge

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