Russell v. Sabatka-Rine et al

Filing 8

ORDER denying 2 Plaintiff's Motion for Leave to Proceed in forma pauperis. Plaintiff has until June 6, 2011, to either show cause why he is entitled to proceed IFP pursuant to 28 U.S.C. §1915(g) or pay the full $350.00 filing fee. I n the absence of either action by plaintiff, this matter will be dismissed without further notice. The clerk of the court is directed to set a pro se case management deadline in this matter with the following text: June 6, 2011: deadline for plaintiff to show cause or pay full filing fee. Pro Se Case Management Deadline set for 6/6/2011 (deadline for plaintiff to show cause or pay full filing fee.) Ordered by Senior Judge Lyle E. Strom. (Copy mailed/e-mailed to pro se party) (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PATRICK RONALD RUSSELL,

)
)
Plaintiff,
)
)
v.
)
)
DIANA SABATKA-RINE, et al.,
)
)
Defendants.
)
______________________________)

4:11CV3036

ORDER

This matter is before the court on plaintiff’s Motion
for Leave to Proceed In Forma Pauperis (“IFP”) (Filing No. 2).
As set forth in the Prison Litigation Reform Act (“PLRA”), a
prisoner cannot:
[B]ring a civil action or appeal a
judgment in a civil action or
proceeding [in forma pauperis] if
the prisoner has, on 3 or more
prior occasions, while incarcerated
or detained in any facility,
brought an action . . . in a court
of the United States that was
dismissed on the grounds that it is
frivolous, malicious, or fails to
state a claim upon which relief may
be granted, unless the prisoner is
under imminent danger of serious
physical injury.
28 U.S.C. §1915(g).
The following three cases or appeals brought by
plaintiff were dismissed because they failed to state a claim
upon which relief may be granted or because they were frivolous:
•

Russell v. Whitson, No. 4:94CV3306 (D. Neb.), dismissed
for failure to state a claim upon which relief may be
granted on November 4, 1994.

•

Russell v. Pehrson, No. 4:94CV3297 (D. Neb.), dismissed
as frivolous and for failure to state a claim upon
which relief may be granted on November 8, 1994, and
March 20, 1995.

•

Russell v. Clarke, No. 4:91CV3184 (D. Neb.), appeal
dismissed as frivolous on November 6, 1991, and
affirmed as frivolous on January 13, 1991.
The Eighth Circuit has recognized that civil actions or

appeals dismissed as frivolous, malicious, or for failure to
state a claim before the effective date of the PLRA, are to be
counted in determining whether a prisoner has three “strikes” and
therefore may no longer prosecute a claim in forma pauperis.

See

In re Tyler, 110 F.3d 528, 529 (8th Cir. 1997) (recognizing
without discussion the dismissal of plaintiff’s pre-PLRA claims
in determining his number of strikes).

Accordingly, plaintiff

has until June 6, 2011, to show cause why he is entitled to
proceed IFP pursuant to 28 U.S.C. §1915(g).

Alternatively,

plaintiff may pay the full $350.00 filing fee no later than June
6, 2011.

In the absence of good cause shown or the payment of

the full filing fee, plaintiff’s complaint will be dismissed
without further notice.
IT IS ORDERED:
1.

Plaintiff’s Motion for Leave to Proceed In Forma

Pauperis (Filing No. 2) is denied.

Plaintiff has until June 6,

2011, to either show cause why he is entitled to proceed IFP
pursuant to 28 U.S.C. §1915(g) or pay the full $350.00 filing

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fee.

In the absence of either action by plaintiff, this matter

will be dismissed without further notice.
2.

The clerk of the court is directed to set a pro se

case management deadline in this matter with the following text:
June 6, 2011:

deadline for plaintiff to show cause or pay full

filing fee.
DATED this 9th day of May, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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