Smith et al v. Ricketts et al

Filing 16

ORDER denying Plaintiff's 15 Motion to Dismiss without prejudice. Plaintiff will have 30 days to pay an initial partial filing fee of $0.11 or else show cause why this case should not be dismissed for failure to pay the initial partial filing fee. In the absence of payment of cause shown, this case will be dismissed without prejudice and without further notice. (Pro se case management deadline set for July 22, 2016: initial partial filing fee payment due.) 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
KEVIN A. SMITH,
Plaintiff,
v.
PETE RICKETTS, Governor, and
SCOTT R. FRAKES, Director,
Defendants.

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8:16CV96

ORDER

This matter is before the court on Plaintiff’s recent correspondence (Filing No.
15), which the court liberally construes as a motion to voluntarily dismiss pursuant to
Federal Rule of Civil Procedure 41. Plaintiff states he “would like to drop the lawsuit
due to the fact [he] do[es] not have the funding and would not be able to afford the
filing fees for this.”
Although Plaintiff can voluntarily dismiss the lawsuit at this time, doing so will
not relieve him of the obligation to pay the entire filing fee. The Prison Litigation
Reform Act makes prisoners responsible for their filing fees the moment the prisoner
brings a civil action or files an appeal. In re Tyler, 110 F.3d at 529-30 (8th Cir.1997);
Jackson v. N.P. Dodge Realty Co., 173 F.Supp.2d 951 (D.Neb. 2001).1

In a Memorandum and Order entered on April 25, 2016, the court allowed a
second plaintiff, Wesley J. Brown, an opportunity to withdraw from the action without
being charged a filing fee. The difference in treatment is due to the fact that the
complaint was mailed to the court for filing by Mr. Smith and originally was signed
only by him. Mr. Smith was advised in the April 25th Memorandum and Order that
“[a]s the lead Plaintiff, [he] may choose to voluntarily dismiss or sever his claims, but
may not escape his obligation to pay the filing fee for this action which was incurred
when the action was filed” (Filing No. 9 at CM/ECF p. 3, n. 3).
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On May 17, 2016, the court entered an order which granted Plaintiff’s motion
for leave to proceed in forma pauperis and directed Plaintiff to pay an initial partial
filing fee of $0.11 within thirty days. The court on its own motion will extend this
payment deadline by an additional thirty days from the date of this order. Unless
Plaintiff pays the initial partial filing fee by such date, or makes a showing of good
cause as to why he cannot pay the initial filing fee by such date, this action will be
subject to dismissal without further notice.
Accordingly,
IT IS ORDERED:
1.

Plaintiff’s motion to dismiss (Filing No. 15) is denied without prejudice.

2.

Plaintiff will have 30 days to pay an initial partial filing fee of $0.11 or
else show cause why this case should not be dismissed for failure to pay
the initial partial filing fee. In the absence of payment of cause shown,
this case will be dismissed without prejudice and without further notice.

3.

The clerk’s office is directed to reset the pro se case management
deadline in this case using the following text: July 22, 2016: initial
partial filing fee payment due.

DATED this 22nd day of June, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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