The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
ZAK SHAIK, )
))
)
Plaintiff, )
)
v. ) Case No. CIV-24-311-RAW-GLJ
)
MURRAY COUNTY )
COMMISSIONERS, et al., )
)
)
Defendants. )
ORDER
Before the court is the plaintiff’s “direct rebuttal to unconstitutional orders of
December 21, 2024,” which the court has directed be filed as a motion to reconsider. As
reflected in the Magistrate Judge’s Report and Recommendation: “Plaintiff filed this action
on August 27, 2024, alleging claims for violation of due process, equal protection, and abuse
of power arising out of tax assessments of certain properties allegedly owned by Plaintiff in
Sulphur, Oklahoma.” (#21 at 1-2).
The procedural history is set forth in the remainder of the quite thorough Report and
Recommendation. Essentially, plaintiff’s application to proceed in forma pauperis (IFP)
provided insufficient information. The Magistrate Judge ultimately conducted a telephonic
hearing and reached the conclusion that “Plaintiff’s IFP motion is materially incomplete,
misleading and false, and should be denied.” Id. at 10. The undersigned affirmed and
adopted the Report and Recommendation (#24). The motion for leave to proceed IFP was
denied, and plaintiff was granted fourteen days to pay the requisite filing fee or the action
would be dismissed without prejudice.
The present case is one of five civil actions plaintiff has filed in the United States
District Court for the Eastern District of Oklahoma. In the other four, Magistrate Judge
Jackson (after the hearing held in the present case) entered Reports and Recommendations
which rescinded previous grants of IFP applications. In the present case, no such previous
grant had taken place. Although the undersigned’s order mistakenly stated to the contrary
in its first paragraph, it correctly denied plaintiff’s application. Also, the order was entered
December 20, 2024, not December 21, as in the caption of the present motion.
In the pending motion, plaintiff sees “coordinated obstruction” in the fact that the
court issued its orders in all five cases at roughly the same time. On the contrary, this was
simply a matter of judicial efficiency, as the cases involved the same issue and depended
upon the resolution (based upon a hearing) in the case at bar. Plaintiff’s arguments along
these lines are logical only if he proceeds from the assumption that the granting of IFP status
is “automatic,” no matter the quality of the supporting documentation. It is not. Proceeding
IFP in a civil case is a privilege, not a right – fundamental or otherwise. White v. Colorado,
157 F.3d 1226, 1233 (10th Cir.1998). The decision to grant or deny IFP status under 28
U.S.C. §1915 lies within the district court’s sound discretion. Cabrera v. Horgas, 1999 WL
2241783, *1 (10th Cir.1999).
Plaintiff states that among the “practical impossibilities” now facing him is the paying
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of five separate filing fees within 14 days. This is a danger inherent in filing five separate
civil actions. In any event, for purposes of the present order, the case at bar is a single case,
and plaintiff has not paid the filing fee. Indeed, he states “[n]o fees will or can be paid
within 14-day deadline.” (#25 at 3). The court’s previous order stated that failure to pay the
filing fee would result in dismissal of the complaint without prejudice. The court, however,
declines to so at this time.
Under Tenth Circuit authority, “[w]hile the denial of leave to proceed IFP is itself a
final, appealable order over which we have jurisdiction, dismissal of a complaint without
prejudice is generally not final or appealable.” Lemons v. K.C. Mo. Police, 158 Fed. Appx.
159, *1 (10th Cir.2005). Plaintiff asserts that unless his motion is granted he will be forced
to, inter alia, “[f]ile emergency appeals highlighting synchronized denial of access.” (#25
at 4). Under Lemons, they need not be emergency appeals – the present orders as they stand
appear to be appealable, although that is a decision for the Tenth Circuit. This court will not
at this time, however, dismiss any of the complaints without prejudice, as such orders are
non-appealable. The court does not wish to place any “barrier” between plaintiff and an
appeal of what he contends is an unconstitutional decision.
Of course, the United States Court of Appeals for the Tenth Circuit also has requisite
filing fees. “A motion to proceed ifp on appeal, supported by required documents, must be
made in the first instance to the district court. Only if that motion is denied is there occasion
to file an ifp motion with this court.” Boling-Bey v. U.S. Parole Comm’n, 559 F.3d 1149,
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1154 (10th Cir.2009)(emphasis added). See Rule 24(a) of the Federal Rules of Appellate
Procedure.
It is the order of the court that the plaintiff’s motion to reconsider (#25) is hereby
denied. If plaintiff has not filed a notice of appeal within the time period allowed by the
Federal Rules of Appellate Procedure, the complaint will be dismissed without prejudice.
The court will then address the motions to reconsider pending in the other four cases filed
by plaintiff.
IT IS SO ORDERED this 13th day of JANUARY, 2025.
_________________________________
RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
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