Diamantopoulos v. State of Nebraska et al

Filing 4

MEMORANDUM AND ORDER denying the Plaintiff's 2 Motion for Leave to Proceed in forma pauperis. He has until January 9, 2012, to either show cause why he is entitled to proceed IFP pursuant to 28 U.S.C. §1915(g) or pay the full $350 .00 filing fee. In the absence of either action by Georgos Diamantopoulos, this matter will be dismissed without further notice. Plaintiff Georgos Diamantopoulos shall pay an initial partial filing fee of $350.00 by 1/9/2012. Pro Se Case Management Deadline set for 1/9/2012: deadline for Georgos Diamantopoulos to show cause or pay full filing fee. Ordered by Senior Judge Warren K. Urbom. (Copy mailed/e-mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GEORGOS DIAMANTOPOULOS,
Petitioner,
v.
STATE OF NEBRASKA,
DEPARTMENT OF
CORRECTIONS, and ROBERT
HOUSTON,
Respondents.

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8:11CV406

MEMORANDUM
AND ORDER ON REQUEST FOR
LEAVE TO PROCEED IN FORMA
PAUPERIS

This matter is before me on Georgos Diamantopoulos’ request for leave to
proceed In Forma Pauperis (“IFP”). (Filing No. 2.) As set forth in the Prison
Litigation Reform Act (“PLRA”), a prisoner cannot:
[B]ring a civil action or appeal a judgment in 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 or appeals brought by Georgos Diamantopoulos were
dismissed because they failed to state a claim upon which relief may be granted or
because they were frivolous:

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Rehbein v. Nelson, et al.,1 No. 4:95CV3157 (D. Neb.), dismissed on
August 18, 1995. (Case No. 4:95CV3157, Filing Nos. 13 and 14 (see
Docket Sheet).)

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Diamantopoulos v. Director of Corrections, et al., No. 4:05CV3097 (D.
Neb.), dismissed on May 13, 2005. (Case No. 4:05CV3097, Filing Nos.
9 and 10.)

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Diamantopoulos v. State of Nebraska, et al., No. 8:07CV31 (D. Neb.),
dismissed on October 14, 2008. (Case No. 8:07CV31, Filing Nos. 95
and 96.)

The Eighth Circuit has recognized that civil actions or appeals dismissed as
frivolous, malicious, or for failure to state a claim before the effective date of the
PLRA, are to be counted in determining whether a prisoner has three “strikes” and
therefore may no longer prosecute a claim in forma pauperis. See In re Tyler, 110
F.3d 528, 529 (8th Cir. 1997) (recognizing without discussion the dismissal of
Plaintiff’s pre-PLRA claims in determining his number of strikes). Accordingly,
Georgos Diamantopoulos has until January 9, 2012, to show cause why he is
entitled to proceed IFP pursuant to 28 U.S.C. §1915(g). Alternatively, he may pay
the full $350.00 filing fee no later than January 9, 2012. In the absence of good
cause shown or the payment of the full filing fee, the plaintiff’s Complaint and this
matter will be dismissed without further notice.
IT IS THEREFORE ORDERED that:
1.
Georgos Diamantopoulos’ request to proceed In Forma Pauperis (filing
no. 2) is denied. He has until January 9, 2012, to either show cause why he is
1

Yourgos Diamantopoulos is also known as Cary Nelson Rehbein. See
Nebraska Department of Correctional Services, Inmate Locator, at
http://dcs-inmatesearch.ne.gov/Corrections/InmateDisplayServlet?DcsId=35084 (last
visited Dec. 9, 2011).
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entitled to proceed IFP pursuant to 28 U.S.C. §1915(g) or pay the full $350.00 filing
fee. In the absence of either action by Georgos Diamantopoulos, 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: January 9, 2012: deadline for Georgos
Diamantopoulos to show cause or pay full filing fee.
Dated December 12, 2011.
BY THE COURT
s/ Warren K. Urbom
United States Senior District Judge

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