Opinion
4:05CV01282 JLH/HDY.
September 14, 2005
ORDER
Plaintiff, a prisoner at the Delta Regional Unit of the Arkansas Department of Correction, has filed a pro se Complaint (docket entry #2) alleging product liability claims against the Defendant in connection with the sale and marketing of the drug Vioxx. For the reasons set forth below, Plaintiff will be denied in forma pauperis status and must pay the $250 filing fee within thirty (30) days from entry of this Order.
Plaintiff is notified of his responsibility to comply with the Local Rules of the Court, including Rule 5.5(c) (2), which states: "It is the duty of any party not represented by counsel to promptly notify the Clerk and the other parties to the proceedings of any change in his or her address, to monitor the progress of the case, and to prosecute or defend the action diligently. A party appearing for himself/herself shall sign his/her pleadings and state his/her address, zip code, and telephone number. If any communication from the Court to a pro se plaintiff is not responded to within thirty (30) days, the case may be dismissed without prejudice. Any party proceeding pro se shall be expected to be familiar with and follow the Federal Rules of Civil Procedure."
Plaintiff is also notified that a dismissal for failure to prosecute, grounds for which include failing to respond to an Order of this Court within thirty (30) days, shall be treated as a "strike" within the meaning of 28 U.S.C. § 1915(g). Under § 1915(g), a prisoner may not proceed with a civil suit in forma pauperis if the prisoner has, "on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal 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).
In contrast, a dismissal pursuant to a motion for voluntary dismissal will not be treated as a strike. Therefore, if at some stage in this litigation, Plaintiff elects not to continue prosecuting this action, Plaintiff should file a motion for voluntary dismissal pursuant to Fed.R.Civ.P. 41.
Under the Prison Litigation Reform Act (" PLRA"), all prisoner-litigants must pay the filing fee in full. Ashley v. Dilworth, 147 F.3d 715, 716 (8th Cir. 1998). Prisoners who make the requisite showing of poverty under 28 U.S.C. § 1915(a) may pay the fee in installments; however, those who fail to make such a showing must pay the entire filing fee at the initiation of a lawsuit. The Supreme Court has stated that an affidavit of poverty for in forma pauperis status is sufficient if it shows that "one cannot because of his poverty pay or give security for the costs . . . and still be able to provide himself and dependents with the necessities of life." Adkins v. E.I. DuPont (docket entry #) Nemours Co., 335 U.S. 331, 339 (1948) (citations omitted); see also In re Smith, 600 F.2d 714 (8th Cir. 1979).
In his Application to Proceed In Forma Pauperis (docket entry #1), Plaintiff states that "during the last six months [his] average balance was $922.44. A calculation sheet attached to Plaintiff's Application shows that as of September 7, 2005, his total deposits for the preceding six months were $500.00, and his current trust account balance is $422.11. Further, Plaintiff has no dependents, nor any living expenses while his needs are being met in prison.
It is apparent from Plaintiff's Application that he has sufficient financial means to pay the filing fee in this case. Courts have held that prisoners with cash reserves more modest than Plaintiff's failed to qualify for in forma pauperis status. Glodjo v. Wilson, 111 F.3d 131 (unpub. table op.) (6th Cir. 1997) (finding ability to pay $120 filing fee where prisoner had no funds in his prison account when he commenced suit but made average monthly deposits of $130 during the preceding six-month period); Hansen v. Holt, No. 95 C 7165, 1995 WL 746231 at *1 (N.D. Ill. Dec. 14, 1995) (finding that $300 in savings account, $300 in checking account, and $28 in prison account disqualified prisoner for waiver of filing fee in Bivens action); Ali v. Cuyler, 547 F. Supp. 129, 230 (E.D. Pa. 1982) (finding savings of $450 more than sufficient to allow for payment of $60 filing fee without forgoing basic human needs). Plaintiff has no dependents, and considering his previous deposits and cash reserves, paying the $250 filing fee would not deprive him of the small amenities that he may be permitted to acquire in prison. Accordingly, the Court will deny Plaintiff's Application to Proceed In Forma Pauperis. Plaintiff is, therefore, directed to submit $250 filing fee within thirty (30) days of entry of this Order. Failure to do so will result in dismissal of this action, without prejudice.
IT IS THEREFORE ORDERED that Plaintiff's Application to Proceed In Forma Pauperis (docket entry #1) is hereby DENIED. If Plaintiff wishes to continue with this lawsuit, he must, within 30 days from entry of this Order, pay the $250.00 statutory filing fee to the Clerk of the Court, noting the above case style and number.