The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARK RINGLAND,
Plaintiff, 8:21CV481
vs.
MEMORANDUM
GOOGLE LLC, AND ORDER
Defendant.
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 March 9, 2022, the court granted in part Plaintiff’s motion seeking to
waive payment of the initial partial filing fee, ordering that this matter could proceed
to initial review without full payment of the initial partial filing fee of $12.71. The
court directed Plaintiff’s institution to withdraw from his inmate account any portion
of the initial partial filing fee available and transmit it to the clerk of the district court
within 30 days. The court further instructed that Plaintiff’s institution shall continue
to withdraw from Plaintiff’s account all funds deposited into the account as they
become available and transmit the funds to the clerk of the district court until the
entire $12.71 initial partial filing fee is paid. (Filing 23.) To date, Plaintiff has not
paid the initial partial filing fee or asked for an extension of time in which to do so.
Accordingly, the court will require Plaintiff to show cause why this case should not
be dismissed for his failure to pay any portion of the initial partial filing fee.
If Plaintiff’s failure to pay by the court’s deadline was caused by prison
officials’ failure to adhere to his request to remit payment using funds from his
account or other circumstances beyond his control, his failure to pay within the time
ordered by the court will 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”).
Plaintiff has also filed several Motions, which will be denied for the following
reasons:
Filings 9, 10, 13, 16: These “Motions” are in the nature of amendments to the
Complaint, which were filed without the court’s permission and in violation of the
Local Rules. See Fed. R. Civ. P. 15(a) (party may amend its pleading once as a matter
of course within 21 days after serving it or after service of responsive pleading or
Rule 12 motion; otherwise, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave”); NEGenR 1.3(g) (“Unless stated
otherwise, parties who proceed pro se are bound by and must comply with all local
and federal procedural rules.”).
Filing 14: Plaintiff’s Motion to Engage in Discovery will be denied because
before this matter may proceed, Plaintiff is required to pay a portion of an initial
partial filing fee, as discussed above. Once payment is made, the court is required to
review Plaintiff’s Complaint to determine whether summary dismissal is
appropriate. See 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A. The court must dismiss
a complaint or any portion thereof that states a frivolous or malicious claim, that
fails to state a claim upon which relief may be granted, or that seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28
U.S.C. § 1915A(b). No discovery may take place in this case unless the court first
determines during initial review that this matter may proceed to service of process.
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Filing 19: This February 22, 2022, Motion to “forgive the lateness” in
transmitting Plaintiff’s account information to the court will be denied as moot, as
such information was filed with the court on February 18, 2022, (Filing 17) and the
court used that information to calculate Plaintiff’s initial partial filing fee. (Filing
18.)
Filing 22: It is unclear what Plaintiff is requesting in his “Motion to Turn
States Evidence Civil and Criminal.” Plaintiff mentions that he testified in his 28
U.S.C. § 2255 case; he would like to testify on behalf of the United States and “turn
states Evidence Against Google LLC for Fraud, and Purjury”; and “If Discovery was
done in Defendants trial. The outcome would have been different.” (Filing 22.)
Plaintiff’s Motion will be denied because he cannot proceed simultaneously under
both 42 U.S.C. § 1983 and 28 U.S.C. § 2255. Anderson v. United States of Am. Fed.
Ct. E. Dist. of Missouri, No. 4:21-CV-1214, 2021 WL 4860931, at *3 (E.D. Mo.
Oct. 18, 2021) (“The Court cannot vacate plaintiff’s criminal judgment and sentence
through a civil rights lawsuit” (citing Heck v. Humphrey, 512 U.S. 477, 486 (1994))).
IT IS THEREFORE ORDERED that:
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: May 26, 2022—check for response to
show-cause order.
3. The Motions filed by Plaintiff in Filings 9, 10, 13, 14, 16, 19, and 22
are denied.
DATED this 26th day of April, 2022.
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BY THE COURT:
Kichard G. Avy
Richard G. □□□
Senior United States District Judge