Diamantopoulos v. Nebraska Govenor et al

Filing 6

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Proceed In Forma Pauperis (filing no. 2 ) is denied. Plaintiff has until April 4, 2014, to either show cause why he is entitled to proceed IFP pursuant to 28 U.S.C. §1915(g) or pay the full $400.00 filing and administrative fees. In the absence of either action by Plaintiff, this matter will be dismissed without further notice. The Clerk of the court is directed to set a pro se case management deadline in this matter wit h the following text: April 4, 2014: deadline for Plaintiff to show cause or pay full filing fee. Plaintiff's pending Motions (filing nos. 4 and 5 ) are denied without prejudice to reassertion after a showing of good cause. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GEORGIOS N.
DIAMANTOPOULOS,
Plaintiff,
v.
NEBRASKA GOVERNOR, et al.,
Defendants.

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8:14CV35

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Motion for Leave to Proceed In
Forma Pauperis (“IFP”). (Filing No. 2.) As set forth in the Prison Litigation Reform
Act (“PLRA”), a prisoner cannot:
bring 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).
The following three cases or appeals brought by Plaintiff 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.)

•

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,
Plaintiff has until April 4, 2014, to show cause why he is entitled to proceed IFP
pursuant to 28 U.S.C. §1915(g). Alternatively, Plaintiff may pay the full $400.00
filing and administrative fees no later than April 4, 2014. In the absence of good
cause shown or the payment of the full filing fee, Plaintiff’s Complaint and this matter
will be dismissed without further notice.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (filing no. 2)
is denied. Plaintiff has until April 4, 2014, to either show cause why he is entitled to
1

Diamantopoulos is also known as Cary Nelson Rehbein. See Nebraska
Depar tmen t of Cor r ectio n al S er v ices , I n mate L o cator, at
http://dcs-inmatesearch.ne.gov/Corrections/InmateDisplayServlet?DcsId=35084 (last
visited March 3, 2014) (See also Filing No. 1 at CM/ECF p. 7 (inmate number
35084).)
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proceed IFP pursuant to 28 U.S.C. §1915(g) or pay the full $400.00 filing and
administrative fees. 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: April 4, 2014: deadline for Plaintiff to
show cause or pay full filing fee.
3.
Plaintiff’s pending Motions (filing nos. 4 and 5) are denied without
prejudice to reassertion after a showing of good cause.
DATED this 4th day of March, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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