Opinion
Case No. 1:07-cv-4.
February 13, 2007
ORDER
Plaintiff, a prisoner incarcerated at the West Shoreline Correctional Facility, filed a civil complaint arguing Defendants violated his constitutional rights by failing to provide adequate medical care. Plaintiff correctly notes in his Complaint that this action is a re-filing of prior civil rights suits that were dismissed without prejudice for failure to exhaust administrative remedies. (Compl. at 1). With his Complaint, Plaintiff filed an application for leave to proceed in forma pauperis. On January 10, 2007, the Court entered an order granting Plaintiff leave to proceed in forma pauperis, and requiring him to pay an initial partial filing fee of $3.73 when funds become available.
The Court's January 10, 2007 Order was entered in error. In a decision issued on August 29, 2006, the Sixth Circuit held that "when a prisoner `re-files' a complaint raising the same prison-conditions claims as a complaint that was initially dismissed without prejudice for failure to exhaust under the [Prison Litigation Reform Act], . . . the prisoner need not pay an additional filing fee under 28 U.S.C. § 1914(a)." Owens v. Keeling, 461 F.3d 763, 772-73 (6th Cir. 2006). In light of Owens, and because Plaintiff's Complaint is a re-filing of claims previously dismissed without prejudice for failure to exhaust, Plaintiff is not required to pay a second filing fee under 28 U.S.C. § 1914(a). See Owens, 461 F.3d at 772. Accordingly,
IT IS HEREBY ORDERED that the Court's January 10, 2007 Order (Dkt. No. 3) granting Plaintiff leave to proceed in forma pauperis is hereby VACATED;
IT IS FURTHER ORDERED that Plaintiff's request for leave to proceed in forma pauperis in the present action (Dkt. No. 2) is DISMISSED as moot; Plaintiff may proceed in this action without payment of a filing fee.