Gray v. Nebraska Department of Correctional Services et al

Filing 18

MEMORANDUM AND ORDER - Plaintiff's correspondence, construed as a motion for refund (filing no. 17 ), is denied. Ordered by Senior Judge Richard G. Kopf. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GRAYLIN GRAY,
Plaintiff,

4:13CV3026

vs.
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES,
ROBERT HOUSTON, Director, NDCS;
FRANK X. HOPKINS, Deputy Director,
Institutions; ROBIN SPINDLER, Deputy
Director, Administrative Services;
LARRY WAYANE, Deputy Director,
Program and Community Services;
FRANCIS BRITTEN, Warden,
Tecumseh State Correctional Institution;
SCOTT BUSBOOM, MICHELLE
(HILLMAN) CAPPS, SHAWN
SHERMAN, Unit Administrator,
Tecumseh State Correctional Institution;
and PAM HILLMAN, Chairperson for
UDC/IDC Disciplinary Committee,
Tecumseh State Correctional Institution;

MEMORANDUM
AND ORDER

Defendants.
This matter is before the court on Plaintiff Graylin Gray’s correspondence,
which the court construes as a motion for refund. (Filing No. 17.)
Gray filed this action on February 6, 2013 and was granted leave to proceed
in forma pauperis (“IFP”) on March 25, 2013. (Filing No. 1; Filing No. 7.) Gray
paid his initial partial filing fee on April 3, 2013, and monthly payments were
collected and submitted to the court by his institution thereafter. On July 2, 2013,
the court conducted an initial review of Gray’s Complaint and concluded his

allegations failed to state a claim upon which relief may be granted. (Filing No.
11.) The court gave Gray leave to file an amended complaint, and Gray filed his
Amended Complaint on July 17, 2013. (Filing No. 13.) On September 18, 2013,
the court, on its own motion, struck its previous Memorandum and Order granting
Gray’s motion to proceed IFP as it appeared upon further review that Gray was not
entitled to proceed IFP pursuant to the Prison Litigation Reform Act’s (“PLRA”)
“3 strikes” provision. (Filing No. 14.) See 28 U.S.C. § 1915(g). The court
determined three cases brought by Gray were dismissed because they were
frivolous1 and ordered Gray to show cause why he is entitled to proceed IFP
pursuant to 28 U.S.C. § 1915(g) or, alternatively, to pay the remainder of the
court’s $400.00 filing and administrative fees by October 18, 2013. Gray did not
file a response to the court’s order to show cause, and the court denied Gray’s
motion to proceed IFP and dismissed the matter without prejudice on November 5,
2013. (Filing Nos. 15 & 16.) Gray did not file an appeal, and his last partial filing
fee payment was collected on April 13, 2018.
Gray now asks the court to order the clerk to return the full $350.00 filing
fee to him and argues that his institution lacked authority to collect the monthly
payments and forward them to the court pursuant to the stricken Memorandum and
Order granting Plaintiff’s IFP motion. (Filing No. 17.) Gray gives no explanation
why he waited more than six years after the court dismissed this action, and almost
two years since his institution ceased collecting payments, to object to the
continued collection and remittance of partial filing fee payments to the court. In
any case, the court finds that a refund of any of Gray’s filing fee payments is
unwarranted under the circumstances. As the Eighth Circuit has explained, “[t]he
purpose of the [PLRA] was to require all prisoner-litigants to pay filing fees in full,
with the only issue being whether the inmate pays the entire filing fee at the
initiation of the proceeding or in installments over a period of time.” Ashley v.
1

The three cases identified by the court were 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; and Gray v. Grammar, No.
4:95CV3404 (D. Neb.), dismissed as frivolous on Feb. 14, 1996.

2

Dilworth, 147 F.3d 715, 716 (8th Cir. 1998). Thus, the court’s determination that it
had erroneously granted Gray leave to proceed IFP when he was not so entitled
pursuant to the “three strikes” provision in 28 U.S.C. § 1915(g) does not
necessarily mandate the refund of money Gray already paid toward the filing fee
nor does it suggest the necessity of refunding money paid after Gray’s action was
dismissed. See Yonai v. Harris, No. CIVS06-2487 MCE GGHP, 2007 WL
3340933, at *1 (E.D. Cal. Nov. 8, 2007) (“In any event, a finding that plaintiff is a
three strikes candidate does not necessarily mean a refund of the money already
paid by plaintiff toward the filing fee.”); see also Judd v. Fed. Corr. Inst. at Fort
Dix New Jersey, No. CIV. 02-5305 JBS, 2012 WL 3060933, at *2 (D.N.J. July 25,
2012) (noting denial of inmate’s request for refund of filing fee payments made
after action dismissed pursuant to three strikes provision and inmate’s failure to
pay the filing fee in full within timeframe ordered by the court).
IT IS THEREFORE ORDERED that: Plaintiff’s correspondence, construed
as a motion for refund (filing no. 17), is denied.
Dated this 28th day of February, 2020.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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