Gray v. Nebraska Department of Correctional Services et al

Filing 14

MEMORANDUM AND ORDER -The court's previous Memorandum and Order granting Plaintiffs Motion for Leave to Proceed in Forma Pauperis (Filing No. 7 ) is stricken, and Plaintiff Motion for Leave to Proceed in Forma Pauperis (Filing No. 2 ) rem ains pending. Plaintiff has until October 18, 2013, to either show cause why he is entitled to proceed IFP pursuant to 28 U.S.C. §1915(g) or pay the court's $400.00 filing and administrative fees. In the absence of either action by P laintiff, this matter will be dismissed without further notice. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 10/18/2013: Deadline forPlaintiff to show cause or pay full filing fee) Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GRAYLIN GRAY,
Plaintiff,
v.
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES, et
al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

4:13CV3026

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. On March 25, 2013, the
court granted Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (“IFP”).
(Filing No. 7.) However, upon further review, it appears that Plaintiff is not entitled
to proceed IFP in this matter without first showing a danger of imminent harm. As
set forth in the Prison Litigation Reform Act (“PLRA”), a prisoner cannot:
[B]ring 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 brought by Plaintiff were dismissed because they
were frivolous:
•

Gray v. Grammar, No. 4:95CV3446 (D. Neb.), dismissed as frivolous on
April 18, 1996.

•
•

Gray v. Smith, No. 4:95CV3405 (D. Neb.), dismissed as frivolous on
March 15, 1996.
Gray v. Grammar, No. 4:95CV3404 (D. Neb.), dismissed as frivolous on
Feb. 14, 1996.

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.” 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 October 18, 2013, to show cause why he is entitled to
proceed in forma pauperis pursuant to 28 U.S.C. §1915(g). Alternatively, Plaintiff
may pay the remainder of the court’s $400.00 filing and administrative fees no later
than October 18, 2013. In the absence of good cause shown or the payment of the
court’s filing and administrative fees, Plaintiff’s Complaint and this matter will be
dismissed without further notice.
IT IS THEREFORE ORDERED that:
1.
The court’s previous Memorandum and Order granting Plaintiff’s Motion
for Leave to Proceed in Forma Pauperis (Filing No. 7) is stricken, and Plaintiff Motion
for Leave to Proceed in Forma Pauperis (Filing No. 2) remains pending.
2.
Plaintiff has until October 18, 2013, to either show cause why he is
entitled to proceed IFP pursuant to 28 U.S.C. §1915(g) or pay the court’s $400.00
filing and administrative fees. In the absence of either action by Plaintiff, this matter
will be dismissed without further notice.

2

3.
The Clerk of the court is directed to set a pro se case management
deadline in this matter with the following text: October 18, 2013: Deadline for
Plaintiff to show cause or pay full filing fee.
DATED this 18th day of September, 2013.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.

3