Russell v. Mathews et al

Filing 10

MEMORANDUM AND ORDER court's memorandum and order entered on March 6, 2017 (Filing No. 7 ) is set aside and vacated. The clerk of the court shall notify Plaintiff's institution to stop collecting partial filing fee payments and shall rem it any funds already collected pursuant to the vacated order. Plaintiff's motion for leave to proceed in forma pauperis (Filing No. 2 ) is denied. Plaintiff has until May 30, 2017, to either show cause why this case should not be dismissed purs uant to 28 U.S.C. §1915(g) or pay the full $400.00 filing fee. In 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: May 30, 2017: Deadline for Plaintiff to show cause or pay full filing fee. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party, Finance, and as directed)(LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PATRICK RUSSELL,
Plaintiff,
v.
LISA MATHEWS and
SALAVADOR CRUZ,
Defendants.

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4:17CV3026

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. In a memorandum and order
entered on March 6, 2017 (Filing No. 7), Plaintiff was granted leave to proceed in
forma pauperis. Upon further review, the court finds such memorandum and order was
entered in error.
As stated in the Prison Litigation Reform Act, a prisoner cannot “bring 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, while a prisoner, were dismissed
as frivolous or as failing to state a claim upon which relief may be granted:
•

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.

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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.

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Russell v. Clarke, No. 4:91CV3184 (D. Neb.), appeal dismissed as frivolous on
November 6, 1991, and affirmed as frivolous on January 13, 1991.

Plaintiff has not shown that he is in imminent danger of serious physical injury.
Accordingly, Plaintiff has until May 30, 2017, to show cause why this matter
should not be dismissed pursuant to 28 U.S.C. §1915(g). Alternatively, Plaintiff may
pay the full $400.00 filing fee no later than May 30, 2017. In the absence of good
cause shown or the payment of the full filing fee, Plaintiff’s Complaint and this matter
will be dismissed without further notice.
IT IS ORDERED:
1.

The court’s memorandum and order entered on March 6, 2017 (Filing
No. 7) is set aside and vacated. The clerk of the court shall notify
Plaintiff’s institution to stop collecting partial filing fee payments and
shall remit any funds already collected pursuant to the vacated order.

2.

Plaintiff’s motion for leave to proceed in forma pauperis (Filing No. 2)
is denied.

3.

Plaintiff has until May 30, 2017, to either show cause why this case
should not be dismissed pursuant to 28 U.S.C. §1915(g) or pay the full
$400.00 filing fee. In the absence of either action by Plaintiff, this matter
will be dismissed without further notice.

5.

The clerk of the court is directed to set a pro se case management
deadline in this matter with the following text: May 30 , 2017: Deadline
for Plaintiff to show cause or pay full filing fee.

DATED this 27th day of April, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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