Opinion
No. C16-3002-MWB
01-29-2016
MARK URBATSCH, Plaintiff, v. JANA HACKER, Defendant.
ORDER
This matter is before the court following transfer from the United States District Court for the Southern District of Iowa. Such transfer occurred on January 14, 2016. The clerk's office filed the case in this district on the same date. Prior to the case being transferred or on January 13, 2016, the plaintiff submitted a complaint pursuant to 42 U.S.C. § 1983 (docket no. 1) and a portion of the filing fee, that is, $250.00. The plaintiff appears to be under the mistaken impression that the filing fee is $250.00. On April 9, 2006, the filing fee increased from $250.00 to $350.00. See 28 U.S.C. § 1914. And, on December 1, 2014, the total filing fee increased from $350.00 to $400.00. Id. ("Administrative fee for filing a civil action, suit, or proceeding in a district court, $50. This fee does not apply to applications for a writ of habeas corpus or to persons granted in forma pauperis status under 28 U.S.C. § 1915."). Thus, the plaintiff shall be directed to submit $150.00 by no later than February 22, 2016. If the plaintiff needs more time to comply with the court's directive, he may file a motion for extension of time to pay the remaining portion of the filing fee. In the event that the plaintiff is unable to pay the remaining portion of the filing fee, he may submit a proper application to proceed in forma pauperis. In the event that the plaintiff's desire to pursue this action is altered by the actual filing fee, the plaintiff may write to the court and ask that his action be dismissed. Upon receipt of the plaintiff's notice, the court will dismiss without prejudice the plaintiff's action and refund the portion of the filing fee that the plaintiff already paid. If the plaintiff does not submit $150.00, request an extension of the deadline, submit a proper application to proceed in forma pauperis or notify the court that he no longer desires to proceed with this action by February 22, 2016, the clerk's office shall dismiss the plaintiff's action for failure to comply with an order of the court order. See Fed. R. Civ. P. 41(b); Edgington v. Missouri Dept. of Corrections, 52 F.3d 777, 779-80 (8th Cir. 1995); cf. L.R. 41.1(b)(4).
Lastly, the court notes that a cursory review of the plaintiff's complaint indicates that the plaintiff is suing the defendant for malpractice. Before proceeding with his action, the plaintiff should consider that merely disagreeing with the medical treatment that is provided does not typically give rise to a valid cause of action under 42 U.S.C. § 1983. See Jones v. Norris, 310 F.3d 610, 612 (8th Cir. 2002) (dismissing case as frivolous because "[n]either differences of opinion nor medical malpractice state an actionable Constitutional violation"); see also Williams v. Kelso, 201 F.3d 1060, 1065 (8th Cir. 2000) ("[T]he law requires that [the] plaintiff make a showing of subjective awareness by the prison officials of a "substantial risk" of "serious harm" . . . in order to establish [a viable] cause of action."). Given the plaintiff's medical malpractice allegations, the plaintiff should consider whether it is appropriate to assert a deliberate indifference to medical needs claim in this court or whether it is appropriate to assert a medical malpractice claim in the courts of Iowa.
IT IS THEREFORE ORDERED:
(1) The plaintiff is directed to submit $150.00 by no later than February 22, 2016.
(2) If the plaintiff does not submit $150.00, request an extension of the deadline, submit a proper application to proceed in forma pauperis or notify the court that he no longer desires to proceed with this action by February 22, 2016, the clerk's
office is directed to dismiss the plaintiff's action for failure to comply with an order of the court.
DATED this 29th day of January, 2016.
/s/_________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA