Luevano v. Ruiz et al

Filing 9

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Plaintiff shall have until October 31, 2012, to pay the entire $350.00 filing fee or submit a certified trust account statement in support of his Motion to Proceed In Forma Pauperis. In the event that Plaintiff fails to comply with this Memorandum and Order, this matter will be dismissed without prejudice and without further notice. The Clerk of the court is directed to set a pro se case management deadline in this matter with the fol lowing text: October 31, 2012: Check for institutional trust account statement; Plaintiff's Notice of Appeal (Filing No. 8 ), construed as a motion for interlocutory appeal, is denied. Plaintiff's Motion to Amend Complaint (Filing No. [ 5]) is granted. In the event that Plaintiff complies with this Memorandum and Order, the court will consider Plaintiff's Complaint, as amended. Plaintiff's Motion for Leave to Proceed In Forma Pauperis (Filing No. 5 ) is denied as duplicative. Plaintiff's Motion for Leave to Proceed In Forma Pauperis (Filing No. 7 ) remains pending. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAIME LUEVANO,
Plaintiff,
v.
R. RUIZ, SGT. DE LOS SANTOS,
WARDENS, Huntsville Tx., and
GOV. RICK PERRY, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

CASE NO. 8:12CV232

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. On July 13, 2012, the court
entered a Memorandum and Order requiring Plaintiff to either pay the $350.00 filing fee or
submit a motion for leave to proceed in forma pauperis. (Filing No. 4.) The court
cautioned Plaintiff that, even if he was permitted to proceed in forma pauperis, he would
still be required to pay the entire $350.00 filing fee. However, he would be allowed to pay
the filing fee in installments in accordance with 28 U.S.C. § 1915. (Id.)
In response, Plaintiff filed a Motion for Leave to Proceed In Forma Pauperis. (Filing
No. 7.) However, Plaintiff did not submit a certified trust account statement with his Motion.
The Clerk of the court attempted to obtain this information directly from Plaintiff’s institution,
but the institution advised the Clerk of the court that the inmate is responsible for obtaining
and submitting his trust account information to the court. (See Docket Sheet, August 31,
2012, Public Remark.) The court can take no action in this matter until Plaintiff either
submits the $350.00 filing fee or a certified trust account statement. Because this matter
has been pending for nearly three months, Plaintiff shall have until October 31, 2012, to
either pay the entire $350.00 filing fee or submit a certified trust account statement. In the

event that Plaintiff fails to comply with this Memorandum and Order, this matter will be
dismissed without prejudice and without further notice.
Also pending is a Notice of Appeal, filed by Plaintiff in the Eighth Circuit Court of
Appeals on September 20, 2012, and which the court liberally construes as a motion for
interlocutory appeal under 28 U.S.C. § 1292(b). (Filing No. 8.) As set forth in that section,
an interlocutory appeal is warranted if the decision sought to be appealed involves a
controlling question of law as to which substantial grounds for difference of opinion exist,
so that an immediate appeal could materially advance the ultimate termination of this
litigation. 28 U.S.C. §1292(b). Here, no such “controlling question of law” is implicated.
Because of Plaintiff’s failure to pay the filing fee or submit a certified trust account
statement, the court has not entered any substantive decisions in this matter. Thus, there
is no decision to appeal and no “controlling question of law” at issue. The Motion is
therefore denied.

IT IS THEREFORE ORDERED that:
1.

Plaintiff shall have until October 31, 2012, to pay the entire $350.00 filing fee
or submit a certified trust account statement in support of his Motion to
Proceed In Forma Pauperis. In the event that Plaintiff fails to comply with
this Memorandum and Order, this matter will be dismissed without prejudice
and 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 31, 2012: Check for institutional
trust account statement;

3.

Plaintiff’s Notice of Appeal (Filing No. 8), construed as a motion for
interlocutory appeal, is denied;

4.

Plaintiff’s Motion to Amend Complaint (Filing No. 5) is granted. In the event
that Plaintiff complies with this Memorandum and Order, the court will
consider Plaintiff’s Complaint, as amended; and
2

5.

Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (Filing No. 5) is
denied as duplicative. Plaintiff’s Motion for Leave to Proceed In Forma
Pauperis (Filing No. 7) remains pending.

DATED this 1st day of October, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
guarantee any third parties or the services or products they provide on their Web sites.
Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the court.
3