FLAMER v. DEPARTMENT OF CORRECTIONS et al

Filing 48

ORDER DISMISSING CASE without prejudice for Plaintiff's failure to prosecute, namely, due to his failure to pay the filing fee as ordered. The Clerk is to mark the case closed. Signed by Magistrate Judge Maureen P. Kelly on 1/3/2011. A copy of the order is being mailed to Plaintiff at his address of record. (tmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN FLAMER,
Plaintiff,
vs.
DEPARTMENT OF CORRECTIONS,
et al.,
Defendants.

)
)
)
) Civil Action No. 10-1211
) Magistrate Judge Maureen P. Kelly
)
)
)
ORDER

John Flamer (“Plaintiff”) filed a motion for leave to proceed in forma pauperis (“IFP”).
ECF No. 1. Although that motion was granted, ECF No. 2, it should not have been because
Plaintiff had more than three strikes at the time he applied for leave to proceed IFP. In addition,
just shortly before he applied to proceed IFP, he had received a settlement, the amount of which
he refused to divulge in his IFP application. Consequently, the Court vacated the order granting
Plaintiff leave to proceed IFP and ordered that he pay the full filing fee by December 15, 2011
and informed him in that order that his failure to pay will result in the case being dismissed.
ECF No. 45. On December 12, 2011, the Clerk’s Office received a motion from Plaintiff to
extend the time in which to pay. ECF No. 46. The Court denied that Motion for Extension of
Time for reasons explained therein and again informed Plaintiff that he if he failed to pay, the
case would be dismissed. ECF No. 47. Notwithstanding the two clear warnings, Plaintiff has
not paid the filing fee.
To the extent that the factors announced in Poulis v. State Farm Fire and Casualty Co.,
747 F.2d 863 (3d Cir. 1984) are applicable herein, the Court finds that they all weigh in favor of
dismissal of the case. Perhaps weighing most heavily in the Poulis balance is the factor of the
meritoriousness of Plaintiff’s claim. Plaintiff’s claim lacks merit. Plaintiff’s claim is that his

sentence is being wrongly calculated and he seeks damages for such alleged wrongdoing. We
noted in the Memorandum, vacating Plaintiff’s grant of IFP status, that such a claim was barred
by Heck v. Humphrey, 512 U.S. 477 (1994) and Royal v. Durison, 254 F.App’x 163, 165 (3d
Cir. 2007) (“Royal alleges that this claim is not barred by Heck, because he is not calling into
question the validity of the sentence or the conviction, but rather just the calculation of time
served. This argument is unavailing.”). ECF No. 45 at 1 to 2.
Accordingly, the following order is entered:

AND NOW this 3rd day of January 2012, the case is hereby DISMISSED for failure to
prosecute. The Clerk is to mark the case closed forthwith.

BY THE COURT,
/s/ Maureen P. Kelly
United States Magistrate Judge
cc:

John Flamer
JG-8609
SCI Rockview
Box A
Bellefonte, PA 16823
All Counsel of Record via CM/ECF

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