McNeil et al v. Omaha, City of et al

Filing 91

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Proceed in Forma Pauperis (filing no. 88 )and Motion for Mandamus (filing no. 89 ) are denied without prejudice to reassertion before the Eighth Circuit Court of Appeals. The Clerk of the court is directed to send a copy of this order to the Eighth Circuit Court of Appeals. Ordered by Judge Richard G. Kopf. (Copy mailed to pro se party) (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMAAL A. MCNEIL,
Plaintiff,
v.
CITY OF OMAHA, OMAHA
POLICE DEPARTMENT, T.
RINGHOFF and J. WARNOCK,
Defendants.

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8:07CV143

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Motion for Leave to Proceed in
Forma Pauperis (filing no. 88) and Motion for Mandamus (filing no. 89). The court
dismissed this matter with prejudice and entered Judgment on August 26, 2008.
(Filing Nos. 53 and 54.) Since then, the Eighth Circuit denied several Petitions for
Writ of Mandamus filed by Plaintiff. (See Filing Nos. 71, 78 and 83.)
As set forth in the Prison Litigation Reform Act, a prisoner cannot:
[B]ring a civil action or appeal a judgment in a civil action or proceeding
under this section if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or appeal 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).
Plaintiff brought the following three cases that were dismissed because they
failed to state a claim upon which relief may be granted:

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McNeil v. Public Defender Office, No. 4:06CV3204 (D. Neb.), dismissed
on September 5, 2006. (Case No. 4:06CV3204, Filing Nos. 5 and 6.)

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McNeil v. City of Omaha, et al., No. 8:07CV145 (D. Neb.), dismissed on
May 16, 2007. (Case No. 8:07CV145, Filing Nos. 12 and 13.)

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McNeil v. City of Omaha, et al., No. 8:07CV143 (D. Neb.), dismissed on
August 26, 2008. (Case No. 8:07CV143, Filing Nos. 53 and 54.)

Plaintiff has not shown that he faces an imminent danger of serious physical
injury, nor has he paid the filing fee for a Petition for Writ of Mandamus. See Fed.
R. App. P. 21(a). Accordingly, the court will deny Plaintiff’s Motion for Writ of
Mandamus without prejudice to reassertion before the Eighth Circuit Court of
Appeals. See In re Tyler, 110 F.3d 528, 529 (8th Cir. 1997) (prisoner filing petition
for writ of mandamus who was ineligible for IFP status because of PLRA’s “three
strikes” provision, 28 U.S.C. § 1915(g), was ordered by the Eighth Circuit to pay the
required filing fee within 15 days or else the petition would be dismissed with
prejudice for failure to prosecute).
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Motion for Leave to Proceed in Forma Pauperis (filing no. 88)

and Motion for Mandamus (filing no. 89) are denied without prejudice to reassertion
before the Eighth Circuit Court of Appeals.
2.

The Clerk of the court is directed to send a copy of this order to the

Eighth Circuit Court of Appeals.

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DATED this 6 th day of October, 2011.
BY THE COURT:
Richard G. Kopf
United States District Judge

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