Cruse v. Ms. Dept. of Corrections et al

Filing 130

ORDER GRANTING Plaintiff's Motions 128 , 129 for Relief from Order or Judgment; Case. The Deadline for the Plaintiff to Respond to the Court Order 105 Requiring Payment of the Full Filing Fee is 21 Days from the Date of this Order. Signed by Magistrate Judge David A. Sanders on 5/17/2021. (cb) (Main Document 130 replaced on 5/17/2021) (cb). Modified on 5/17/2021 (cb).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
ANDREW CLINTON CRUSE
v.

PLAINTIFF
No. 4:17CV162-DAS

MS DEPT. OF CORRECTIONS, ET AL.

DEFENDANTS

ORDER GRANTING PLAINTIFF’S MOTIONS [128], [129]
FOR RELIEF FROM JUDGMENT OR ORDER;
CASE; THE DEADLINE FOR THE PLAINTIFF TO RESPOND TO THE
COURT’S ORDER [105] REQUIRING PAYMENT OF THE FULL
FILING FEE IS 21 DAYS FROM THE DATE OF THIS ORDER.
This matter comes before the court on the plaintiff’s motions [128], [129] for
reconsideration of the court’s final judgment [106] dismissing this case under the “three strikes”
provision of the Prison Litigation Reform Act.1 See 28 U.S.C. § 1915(g). The court interprets
the motion, using the liberal standard for pro se litigants set forth in Haines v. Kerner, 404 U.S.
519 (1972), as a motion for relief from a judgment or order under FED. R. CIV. P. 60. An order
granting relief under Rule 60 must be based upon: (1) clerical mistakes, (2) mistake,
inadvertence, surprise, or excusable neglect, (3) newly discovered evidence, (4) fraud or other
misconduct of an adverse party, (5) a void judgment, or (6) any other reason justifying relief
from the operation of the order. Id.
In this case, the plaintiff argues that he never received notice of the court’s order [105]
revoking his in forma pauperis status and requiring payment of the full filing fee within 21 days
– nor the order [106] of dismissal for failing to pay the fee in accordance with the court’s order.
Thus, he argues that he did not have notice of the possible dismissal of his case – or the

1

The plaintiff’s requests in these motions were obscured by many complaints about the
conditions of his confinement, thus leading to a delay in reaching a decision on the motions.

opportunity to prevent the dismissal by paying the full filing fee. Supporting the plaintiff’s
argument is the fact that he did not return the acknowledgment form for either of these orders.
Further, soon after the court’s order of dismissal issued, the court received mail returned from
the plaintiff’s last known address. Thus, it appears that the plaintiff never received the court’s
orders leading to the dismissal of this case.
For these reasons, the plaintiff’s requests [128], [129] for reconsideration under Fed. R.
Civ. P. 60(b) are GRANTED. This case is REINSTATED, and the new deadline for the
plaintiff to pay the full filing fee in this case is 21 days from the date of this Order. Failure to
pay the fee by the deadline will lead to the dismissal of this case.
SO ORDERED, this, the 17th day of May, 2021.
/s/ David A. Sanders
DAVID A. SANDERS
UNITED STATES MAGISTRATE JUDGE