Hillard v. Nebraska Department of Correctional Services Employees et al

Filing 11

ORDER TO SHOW CAUSE - Plaintiff has until October 19, 2011, to either show cause why this case should not be dismissed pursuant to 28 U.S.C. §1915(g) or pay the full $350.00 filing fee. In the absence of either action by plaintiff, this ma tter 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: October 19, 2011: Deadline for plaintiff to show cause or pay full filing fee. Ordered by Senior Judge Lyle E. Strom. (Copy mailed/e-mailed to pro se party) (KBJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT S. HILLARD,

)
)
Plaintiff,
)
)
v.
)
)
NEBRASKA DEPARTMENT OF
)
CORRECTIONAL SERVICES
)
EMPLOYEES, et al.,
)
)
Defendants.
)
______________________________)

8:11CV197

MEMORANDUM AND ORDER

This matter is before the Court on initial review.

The

Court previously granted plaintiff leave to proceed in forma
pauperis (“IFP”) (Filing No. 7).

However, upon further review,

and for the reasons discussed below, plaintiff may not proceed
IFP in this matter unless he shows good cause.
Pursuant to the Prison Litigation Reform Act, 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 . . . .
28 U.S.C. §1915(g).

Plaintiff, while incarcerated, brought the

following three cases that were dismissed without prejudice
pursuant to Heck v. Humphrey, 512 U.S. 477 (1994):

•

Hillard v. Chilen, Case No. 8:09CV162
(D. Neb.), dismissed pursuant to Heck on
July 1, 2009.

•

Hillard v. Korslund, Case No. 8:09CV183
(D. Neb.), dismissed pursuant to Heck on
December 14, 2009.

•

Hillard v. Jefferson County Law
Enforcement Center, Case No. 4:09CV3225
(D. Neb.), dismissed pursuant to Heck on
December 30, 2009.

Cases dismissed pursuant to Heck count as strikes under
the “three strikes” provision of 28 U.S.C. § 1915(g).

Armentrout

v. Tyra, No. 98-3161, 1999 WL 86355, at *1 (8th Cir. 1999); see
also Smith v. Veterans Admin., 636 F.3d 1306, 1311-12 (10th Cir.
2011) (holding that the dismissal of a civil rights suit pursuant
to Heck is a dismissal for failure to state a claim upon which
relief may be granted); Hamilton v. Lyons, 74 F.3d 99, 102 (5th
Cir. 1996) (stating that a § 1983 claim which falls under the
rule in Heck is legally frivolous).

Accordingly, plaintiff has

until October 19, 2011, to show cause why this matter should not
be dismissed pursuant to 28 U.S.C. §1915(g).

Alternatively,

plaintiff may pay the full $350.00 filing fee no later than
October 19, 2011.

In the absence of good cause shown or the

payment of the full filing fee, this matter will be dismissed
without further notice.

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IT IS ORDERED:
1)

Plaintiff has until October 19, 2011, to either

show cause why this case should not be dismissed pursuant to 28
U.S.C. §1915(g) or pay the full $350.00 filing fee.

In the

absence of either action by plaintiff, this matter will be
dismissed without further notice.
2)

The clerk of the court is directed to set a pro se

case management deadline in this matter with the following text:
October 19, 2011:

Deadline for plaintiff to show cause or pay

full filing fee.
DATED this 29th day of September, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

*This opinion may contain hyperlinks to other documents or
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of the Court.
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