Carper v. State of Nebraska ( 2019 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA JULIE LYNN CARPER, Plaintiff, 8:19CV404 vs. MEMORANDUM STATE OF NEBRASKA, NEBRASKA AND ORDER ATTORNEY GENERAL, HON. CJ HEAVICAN, Chief Justice, Nebraska Supreme Court; and HON. TWISS, Adams, Colfax County Judge; Defendants. This matter is before the court for case management. The Prison Litigation Reform Act requires an imprisoned civil plaintiff to pay the court’s entire filing fee, either at the outset when filing the complaint, or in installments if the court grants leave to proceed in forma pauperis (“IFP”). In re Tyler, 110 F.3d 528, 529- 30 (8th Cir. 1997); Jackson v. N.P. Dodge Realty Co., 173 F. Supp. 2d 951 (D. Neb. 2001). On September 20, 2019, the court granted Plaintiff’s motion seeking leave to proceed IFP and ordered her to pay an initial partial filing fee in the amount of $5.67 within 30 days. (See Filing No. 11.) To date, Plaintiff has not paid the initial partial filing fee or asked for an extension of time in which to do so.1 Accordingly, the court will require Plaintiff to show cause why this case should not be dismissed for her failure to pay the initial partial filing fee. 1 On September 27, 2019, Plaintiff submitted a letter to the court which the court liberally construed as a request for relief from payment of the court’s filing fees. (Filing No. 10.) The court denied Plaintiff’s request on October 1, 2019. (Filing No. 11.) If Plaintiff’s failure to pay by the court’s deadline was caused by prison officials’ failure to adhere to her request to remit payment using funds from her account, her failure to pay within the time ordered by the court will be excused. However, if Plaintiff’s failure to pay by the court’s deadline was caused by her failure to leave sufficient funds in her account to timely pay the initial partial filing fee, her failure to pay will not be excused. Absent a sufficient response, the case will be subject to dismissal. See Taylor v. Cassady, 570 Fed. App’x. 632 (8th Cir. 2014) (holding district court abused its discretion by dismissing case without first taking steps to determine whether prisoner-plaintiff’s failure to pay the initial partial filing fee “was caused by circumstances beyond his control, such as prison officials’ failure to adhere to his request to remit payment using funds from his account”). IT IS ORDERED: 1. Plaintiff will have 30 days to show cause why this case should not be dismissed for failure to pay the initial partial filing fee. In the absence of cause shown, this case will be dismissed without prejudice and without further notice. 2. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: December 9, 2019: check for response to show cause order. Dated this 7th day of November, 2019. BY THE COURT: s/ Richard G. Kopf Senior United States District Judge