Opinion
CASE NO. 1:18CV00469
06-01-2018
DANIEL HERPKA, Plaintiff, v. JUDGE COMSTOCK, Defendant.
ORDER OF DISMISSAL :
Pro se Plaintiff Daniel Herpka, a prisoner in a correctional institution, filed this 42 U.S.C. § 1983 action against Judge Comstock in his official capacity. Herpka claims he should be released from confinement. Plaintiff seeks to proceed with this action in forma pauperis, and filed an incomplete affidavit in support. On April 4, 2018, Magistrate Judge Thomas Parker issued a deficiency order concerning Plaintiff's application to proceed in forma pauperis. That order required Plaintiff to either pay the full fee of $400.00, or complete and file the Financial Application provided to Herpka as an attachment to the order, within 30 days. The deficiency order warned Plaintiff that "[f]ailure to comply with this order may result in dismissal of this action without further notice."
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"If the prisoner does not pay the full filing fee and fails to provide the required documentation to apply to proceed in forma pauperis, 'the district court must notify the prisoner of the deficiency and the prisoner will then have thirty days from the date of the deficiency order to correct the error or pay the full filing fee.'" "If the prisoner does not comply with the district court's [deficiency order], the district court shall presume that the prisoner is not a pauper, and assess the inmate the full amount of fees. The district court must then order the case dismissed for want of prosecution." "If the case is dismissed under these circumstances, it will not be reinstated to the district court's active docket despite the payment of filing fees."
Erby v . Kula, 113 F. App'x 74, 75-76 (6th Cir. 2004) (quoting McGore v . Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997)).
In re Prison Litig . Reform Act, 105 F.3d 1131, 1132 (6th Cir. 1997); Erby , 113 F. App'x at 75-76 (same).
In re Prison Litig . Reform Act, 105 F.3d at 1132.
"A prisoner may seek leave to extend the thirty (30) day time period to correct any filing deficiency regarding pauper status. The district court may, in its discretion, grant such an extension for up to thirty (30) days as long as the inmate files the extension motion within thirty (30) days after the district court files the order of deficiency."
Id .
Here, the deficiency order clearly stated, and provided, the documentation that Plaintiff was required to submit in order to proceed with this action without payment of the filing fee, and expressly warned Plaintiff that failure to comply may result in dismissal. As of the date of this Order, more than 30 days have passed and Plaintiff has neither complied with the deficiency order nor sought an extension of time to do so.
Accordingly, this case is dismissed without prejudice for want of prosecution for failing to comply with the deficiency order.
Erby , 113 F. App'x at 76 (district court did not abuse its discretion when it dismissed prisoner's civil rights complaint for want of prosecution for failing to comply with deficiency order); Hill v . Lucas Cty. Common Pleas Court, 190 F. Supp. 3d 732, 732 (N.D. Ohio 2016) (dismissing case without prejudice where plaintiff failed to comply with the court's deficiency order).
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith.
28 U.S.C. § 1915(a)(3) provides:
An appeal may not be taken in forma pauperis if the trial court certifies that it is not taken in good faith.
IT IS SO ORDERED. Dated: June 1, 2018
s/ James S . Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE