Collins v. Frakes et al

Filing 13

MEMORANDUM AND ORDER - Plaintiff's Motion for Extension of Time (filing no. 11 ) is denied. Plaintiff has until August 17, 2018, to pay his initial partial filing fee. Plaintiff's motion (filing no. 12 ) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SEAN COLLINS,
Plaintiff,

8:18CV270

vs.
SCOTT FRAKES, Director Nebraska
Correctional Department Services Individual and Official Capacity;
ROBERT MADSEN, Warden (Nebraska
State Penitentory) - Individual and
Official Capacity; M. MARTINEZ,
Mental Health Practitioner (Nebraska
State Penitentory) - Individual and
Official Capacity; J. CONROY, Unit 4
Manager (Nebraska State Penitentory) Individual and Official Capacity; M.
JOHNSON, Case Manager (H66 PC)
Housing Unit 4 in Protect Custody Individual and Official Capacity; D.
PELOWSKI, Case Manager (Housing
Unit 6 Protective Custody) - Individual
and Official Capacity; M.
RODRIGUEZ, Case Worker (Housing
Unit 4 Protective Custody) - Individual
and Official Capacity; C. MORSE,
Corporal (D Gallery assigned rotation
for Protective Custody) - Individual and
Official Capacity; and M. REISDORFF,
Sergeant (Assigned in Housing Unit 4) Individual and Official Capacity;

MEMORANDUM
AND ORDER

Defendants.
This matter is before the court on Plaintiff’s Motion for Extension of Time
(filing no. 11) and Plaintiff’s correspondence (filing no. 12), which the court

construes as a motion seeking guidance on how he may proceed with his case. In
both his Motion for Extension and his correspondence, Plaintiff indicates that he
would like to delay the paying of his initial partial filing fee and possibly withdraw
or suspend his case until after he is released on parole in April 2019. Plaintiff asks
whether suspending the case until April 2019 is possible, what effect a withdrawal
or dismissal of the case will have as to the statute of limitations and payment of the
filing fee, and whether there are any resources available to assist pro se litigants.
First, to the extent Plaintiff seeks the court’s advice on how he should
proceed and what the consequences will be of particular courses of action, the
court cannot provide such legal advice nor will the court act as Plaintiff’s legal
advisor. See Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 243 (3d Cir. 2013)
(citing McKaskle v. Wiggins, 465 U.S. 168, 183–84 (1984)) (“[T]here is no case
law requiring courts to provide general legal advice to pro se parties. In a long line
of cases, the Supreme Court has repeatedly concluded that courts are under no such
obligation.”). The court will, however, direct Plaintiff’s attention to the District
Court of Nebraska’s public website, which contains resources for persons
proceeding without an attorney. https://www.ned.uscourts.gov/public/proceedingwithout-an-attorney (last accessed July 27, 2018).
With respect to the filing fees owed in this case, the court has previously
informed Plaintiff that, under the Prison Litigation Reform Act, an indigent inmate
who files a lawsuit in federal court must pay the $350.00 filing fee, first by making
an initial partial payment and then by sending the remainder of the fee to the court
in installments. (See Filing No. 6; Filing No. 10.) The method for collecting the
filing fee from a prisoner is specifically provided for in 28 U.S.C. § 1915(b).
Section 1915(b) is written in mandatory terms (“the prisoner shall be required to
pay”), and the Prison Litigation Reform Act makes prisoners responsible for their
filing fees the moment the prisoner brings a civil action or files an appeal, even if
the case is dismissed at a later time. See In re Tyler, 110 F.3d 528, 529–30 (8th
Cir. 1997). In other words, even if the court were to dismiss this action, Plaintiff
must pay the $350.00 filing fee so long as he remains a prisoner.
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Because Plaintiff is already on the hook for paying the filing fee and
represents that he has the funds available to pay his initial partial filing fee, the
court finds there is no good cause to extend the time in which Plaintiff has to pay
his initial partial filing fee. Again, Plaintiff became responsible for paying the
court’s filing fee the moment he filed his suit and will remain liable for the fee so
long as he remains a prisoner. If Plaintiff is released from custody at some point in
the future while his case is still pending, then he would be required to file a new
Application for Leave to Proceed IFP based on the changed circumstances caused
by his release from prison. See, e.g., McGann v. Comm’r, Social Security Admin.,
96 F.3d 28, 30 (2d Cir. 1996) (“A released prisoner may litigate without further
payment of fees upon satisfying the poverty affidavit requirement applicable to all
non-prisoners.”). Accordingly,
IT IS ORDERED:
1.
Plaintiff’s Motion for Extension of Time (filing no. 11) is denied.
Plaintiff has until August 17, 2018, to pay his initial partial filing fee.
2.

Plaintiff’s motion (filing no. 12) is denied.

Dated this 27th day of July, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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