Harper v. State of Nebraska

Filing 11

MEMORANDUM AND ORDER - The court's memorandum and order entered April 4, 2017 (Filing No. 9 ), is set aside and vacated. The clerk of the court shall notify Plaintiff's institution to stop collecting partial filing fee payments and shall r emit any funds already collected pursuant to the vacated order. Plaintiff's motion for leave to proceed in forma pauperis (Filing No. 6 ) is denied. Plaintiff has until June 15, 2017, to either show cause why this case should not be dismissed p ursuant to 28 U.S.C. §1915(g) or pay the full $400.00 filing fee. 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 with the following text: June 15, 2017: Deadline for Plaintiff to show cause or pay full filing fee. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and Plaintiff's Institution; Emailed to Finance) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CLYDE ERNEST HARPER,
Plaintiff,
v.
STATE OF NEBRASKA,
Defendant.

)
)
)
)
)
)
)
)
)
)

8:17CV58

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. In a memorandum and order
entered on April 4, 2017 (Filing No. 9), Plaintiff was granted leave to proceed in
forma pauperis. Upon further review, the court finds such memorandum and order was
entered in error.
As stated in the Prison Litigation Reform Act, a prisoner cannot “bring 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 five civil actions brought by Plaintiff, while a prisoner, were
dismissed as frivolous or as failing to state a claim upon which relief may be granted:
• Clyde E. Harper v. Douglas County Correctional Center, No.8:02CV320
(D. Neb.), dismissed for failure to state a claim upon which relief may be
granted on January 28, 2003.
• Clyde E. Harper v. Douglas County Correctional Center, No.8:02CV285
(D. Neb.), dismissed for failure to state a claim upon which relief may be
granted on July 1, 2003.
•

Clyde E. Harper v. Douglas County, et al., No.8:02CV287 (D. Neb.), dismissed
for failure to state a claim upon which relief may be granted on July 22, 2003.

• Clyde E. Harper v. Scott A. Calkins, No.8:04CV536 (D. Neb.), dismissed for
failure to state a claim upon which relief may be granted on October 25, 2004.
• Clyde E. Harper v. Judge Coffey, No.4:15CV3033 (D. Neb.), dismissed for
failure to state a claim upon which relief may be granted on July 20, 2015.
Plaintiff has not shown that he is in imminent danger of serious physical injury.
Accordingly, Plaintiff has until June 15, 2017, to show cause why this matter
should not be dismissed pursuant to 28 U.S.C. §1915(g). Alternatively, Plaintiff may
pay the full $400.00 filing fee no later than June 15, 2017. 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 ORDERED:
1.

The court’s memorandum and order entered April 4, 2017 (Filing No. 9),
is set aside and vacated. The clerk of the court shall notify Plaintiff’s
institution to stop collecting partial filing fee payments and shall remit
any funds already collected pursuant to the vacated order.

2.

Plaintiff’s motion for leave to proceed in forma pauperis (Filing No. 6)
is denied.

3.

Plaintiff has until June 15, 2017, to either show cause why this case
should not be dismissed pursuant to 28 U.S.C. §1915(g) or pay the full
$400.00 filing fee. In the absence of either action by Plaintiff, this matter
will be dismissed without further notice.

4.

The clerk of the court is directed to set a pro se case management
deadline in this matter with the following text: June 15, 2017: Deadline
for Plaintiff to show cause or pay full filing fee.

DATED this 16th day of May, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
-2-