Emilio v. Nebraska Department of Correctional Services et al

Filing 10

MEMORANDUM AND ORDER - Plaintiff's correspondence with the court (Filing 9 ), construed as a motion, is denied. To continue with this lawsuit, Plaintiff is directed to submit the $400.00 filing fee to the Clerk of Court's office or su bmit a request to proceed in forma pauperis within 30 days. Failure to take either action will result in dismissal of this matter without further notice. The Clerk of Court is directed to set a pro se case management deadline in this matter with the following text: April 21, 2017: Check for MIFP or payment. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAVON EMILIO,
Plaintiff,
v.
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES,
FRED BRITTEN, Warden, TAN,
Case Manager, and SAWYER, Case
Worker, et al.,
Defendants.

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4:17CV3027

MEMORANDUM
AND ORDER

Plaintiff has filed correspondence with the court (Filing 9) objecting to the
court’s previous order (Filing 6) to pay the $400.00 filing fee or submit a request to
proceed in forma pauperis within 30 days. Plaintiff believes he does not owe the
$400.00 filing fee because he has filed a declaratory judgment action with a request
for injunctive relief—not a lawsuit under 42 U.S.C. § 1983—and the filing fee for a
declaratory judgment action is only $35.00. Plaintiff states that “the legal documents
filed do not amount to a motion for a 1983 legal action nor did I inten[d] to file such
at this time.” (Filing 9.)
Plaintiff’s correspondence, construed as a motion, shall be denied because 28
U.S.C. § 1915—which allows prisoners to file civil actions “without prepayment of
fees or security therefor,” but which requires that the full amount of the filing fee be
paid in installments—is applicable to “any suit, action or proceeding, civil or
criminal.” 28 U.S.C. § 1915(a)(1) (emphasis added). Under the terms of the statute,
the nature of Plaintiff’s lawsuit is irrelevant to his duty to pay the filing fee. Simply
put, there is no “discount” for declaratory judgment actions.

Accordingly,
IT IS ORDERED that:
1.
Plaintiff’s correspondence with the court (Filing 9), construed as a
motion, is denied;
2.
To continue with this lawsuit, Plaintiff is directed to submit the $400.00
filing fee to the Clerk of Court’s office or submit a request to proceed in forma
pauperis within 30 days. Failure to take either action will result in dismissal of this
matter without further notice; and
3.
The Clerk of Court is directed to set a pro se case management deadline
in this matter with the following text: April 21, 2017: Check for MIFP or payment.
DATED this 20th day of March, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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