Opinion
8:19CV399
09-25-2019
JAMES E. SHERROD, Plaintiff, v. NEBRASKA DEPARTMENT OF CORRECTIONS, Mental Health, SCOTT FRAKES, and IHELP CLINICAL SEX OFFENDER REVIEW TEAM, Defendants.
MEMORANDUM AND ORDER
This matter is before the court on its own motion. On September 11, 2019, the court advised Plaintiff to pay $400.00 in filing fees to the clerk's office or submit a request to proceed in forma pauperis ("IFP") within 30 days. (Filing No. 5.) Plaintiff filed a Motion for Leave to Proceed In Forma Pauperis (Filing No. 6) on September 18, 2019, as well as a Motion for Extension of Time (Filing No. 8) to pay the $400.00 filing fee. Upon further review, it appears that Plaintiff is not entitled to proceed IFP in this matter without first showing a danger of imminent harm. As set forth in the Prison Litigation Reform Act ("PLRA"), a prisoner cannot:
bring a civil action . . . or proceeding [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action . . . 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).
This court's records reflect that, unless he is under imminent danger of serious physical injury, Plaintiff is barred from proceeding IFP by 28 U.S.C. § 1915(g) because Plaintiff has, on at least three prior occasions while incarcerated, brought cases that were dismissed on the grounds that they were frivolous or failed to state a claim upon which relief may be granted. See Sherrod v. State of Nebraska, et al., No. 4:02CV3129 (D. Neb. March 17, 2003), Filing No. 50 (dismissing amended complaint for failure to state a claim upon which relief may be granted); Sherrod v. Kenney, et al., No. 4:00CV3322 (D. Neb. March 26, 2001), Filing No. 9 (dismissing complaint as frivolous); Sherrod v. Hopkins, et al., No. 4:92CV3178 (D. Neb. Aug. 10, 1992), Filing No. 16 (dismissing complaint as frivolous).
Accordingly, Plaintiff will be granted 30 days from the date of this Memorandum and Order to show cause why this case should not be dismissed pursuant to the provisions of 28 U.S.C. 1915(g), or to pay the full $400.00 filing and administrative fees. In the absence of good cause shown, or the payment of the necessary fees, this action will be dismissed.
IT IS THEREFORE ORDERED that:
1. Plaintiff's Motion for Leave to Proceed In Forma Pauperis (Filing No. 6) shall remain pending in the event Plaintiff can show he should be allowed to proceed in forma pauperis for the reason that he is under imminent danger of serious physical injury.
2. Plaintiff has until October 25, 2019, to either show cause why he is entitled to proceed in forma pauperis pursuant to 28 U.S.C. §1915(g) or to pay the full $400.00 filing and administrative fees. In the absence of either action by Plaintiff, this matter will be dismissed without further notice.
3. Plaintiff's Motion for Extension of Time (Filing No. 8) to pay the $400.00 filing fee is granted in part as provided in paragraph (2) of this Memorandum and Order and is otherwise denied.
4. The Clerk of Court is directed to set a pro se case management deadline in this matter with the following text: October 25, 2019: Deadline for Plaintiff to show cause or pay full filing fee.
DATED this 25th day of September, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge