Opinion
CASE NO. 06-3210-SAC.
October 2, 2007
ORDER
On April 27, 2007, this court entered a Memorandum and Order assessing an initial partial filing fee of $16.00 in this case in accordance with 28 U.S.C. § 1915(b)(1), and granting plaintiff thirty days to submit the assessed fee. Plaintiff was forewarned that failure to pay the partial fee within the time provided could result in dismissal of this action without further notice.
The time in which plaintiff was required to submit the initial partial filing fee has long since passed, and plaintiff has not paid the assessed fee. Nor has he sought an extension of time to pay the fee. Plaintiff filed a Response to the court's Memorandum and Order of April 27, 2007, addressing deficiencies in his complaint found during screening. In his Response, he also states "dismissal of complaint because plaintiff lacks funds is unconstitutional," and that he has not been allowed to work. Attached to plaintiff's Response is an Inmate Account Statement dated May 15, 2007.
Neither plaintiff's conclusory statements nor his more recent Inmate Account Statement excuse his failure to pay the initial partial filing fee assessed by the court. Plaintiff does not provide any facts, argument, or authority indicating the statute passed by Congress requiring courts to assess and collect an initial partial filing fee is unconstitutional. Prisoner plaintiffs are now on an equal footing with non-prisoner litigants, in that they are required to decide whether or not to expend some of their limited, available resources to litigate matters in federal court. Moreover, under the express terms of 28 U.S.C. § 1915(b)(1), the assessed fee is based upon the deposits or balances in the prisoner litigant's prison account during the six months preceding the filing of the lawsuit, and not just an inmate's wages from a prison work assignment or the lack thereof. Plaintiff's exhibit does not show that he is unable to pay the assessed initial partial filing fee, and in fact the balance shown on the more recent statement is greater. Plaintiff's handwritten note on the newer statement that the "Average Balance" on the Inmate Account Statement is "mandatory savings" is not convincing, since another attached page shows the "Savings" balance.
The court finds that plaintiff has failed to submit the initial partial filing fee properly assessed in this case, and that his objections to the fee are without merit. It therefore concludes that this action must be dismissed, without prejudice, on account of plaintiff's failure to submit the part fee assessed by the court. See Lucky v. Hargett, 125 F.3d 862 (10th Cir. Oct. 1, 1997, unpublished).
A copy of this unpublished opinion is attached in accordance with rules of the Tenth Circuit Court of Appeals.
IT IS THEREFORE ORDERED that this action is dismissed and all relief is denied, without prejudice, on account of plaintiff's failure to submit the assessed initial partial filing fee.
IT IS FURTHER ORDERED that plaintiff's motion for leave to proceed in forma pauperis (Doc. 2) is denied.
IT IS SO ORDERED.
Westlaw.
125 F.3d 862 125 F.3d 862, 1997 WL 603780 (C.A. 10 (Okla.)), 97 CJ C.A.R. 2146
(Cite as: 125 F.3d 862, 125 F.3d 862 (Table))
Lucky v. Hargett
C.A. 10 (Okla.), 1997.
NOTICE: THIS IS AN UNPUBLISHED OPINION. (The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA10 Rule 36.3 for rules regarding the citation of unpublished opinions.)
United States Court of Appeals, Tenth Circuit. Bobby E. LUCKY, Plaintiff-Appellant, v. Steve HARGETT, Larry Fields, and The Daily Oklahoman, Defendants-Appellees. No. 97-6161. (D.C. No. CIV-96-1810) Oct. 1, 1997.Before BALDOCK, MCKAY, and LUCERO, Circuit Judges.FN**
FN** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. 34.1.9. The case is therefore ordered submitted without oral argument.
ORDER AND JUDGMENT
FN* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. BALDOCK, C.J.
*1 Plaintiff Bobby E. Lucky, appearing pro se, filed a civil rights action under 42 U.S.C. § 1983 alleging violations of his constitutional rights. The district court dismissed the action without prejudice for Plaintiffs failure to comply with the court's orders directing the payment of an initial partial filing fee. Plaintiff appealed the dismissal.FN1 Our jurisdiction arises under 28 U.S.C. § 1291. We review the district court's decision for abuse of discretion. Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). We affirm.
FN1. After filing his opening brief, Plaintiff filed a petition for a writ of mandamus. We do not engage in mandamus review where we can exercise the same review in a contemporaneous appeal. Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 9 n. 6 (1992). Therefore, Plaintiff is not entitled to mandamus relief, and his petition is dismissed.
On November 12, 1996, the magistrate judge issued an order pursuant to 28 U.S.C. § 1915(b)(1) directing Plaintiff to pay an initial partial filing fee of $28.68. Plaintiff failed to comply with the order. On December, 6, 1996, the magistrate judge issued a second order granting Plaintiff until December 26, 1996 to pay the filing fee. Plaintiff filed objections to the magistrate judge's December 6, 1996, order, asserting that the partial filing fee was based on false information submitted by Oklahoma state prison officials. The district court overruled the objections and dismissed the complaint without prejudice on April 29, 1997, for failure to pay the filing fee. Under these circumstances, we find no abuse of discretion.FN2 Accordingly, the judgment of the district court is
FN2. Plaintiffs motion for appointment of counsel is also denied.
AFFIRMED.
C.A. 10 (Okla.), 1997.
Lucky v. Hargett
125 F.3d 862, 1997 WL 603780 (C.A. 10 (Okla.)),
97 CJ C.A.R. 2146