Opinion
Civil Action No. 06-cv-02160-EWN-BNB.
July 31, 2007
ORDER
This matter is before me on a letter filed by the plaintiff on May 15, 2007 [Doc. #37] (the "Motion to Reconsider"). The letter is in response to my Recommendation of May 7, 2007, wherein I recommended that this case be dismissed without prejudice for the plaintiff's failure to make monthly payments of twenty percent of his preceding month's income until his filing fee was paid in full, or to show cause each month that he has no assets with which to make the monthly payments. I construe the letter as a motion for reconsideration of my Recommendation.
In his Motion for Reconsideration, the plaintiff objects to my Recommendation "due to [his] never receiving notice to show cause each month that I have no assets to make monthly payments on my claim" because prison staff have been withholding and tampering with his mail. Motion to Reconsider, p. 3. The plaintiff specifically states that he did not receive my orders dated December 28, 2006, and February 27, 2007. Id. at p. 2.
The plaintiff's excuses are belied by the record. On February 2, 2007, the plaintiff filed a letter [Doc. #12] wherein he states that he received my Order Granting Leave to Proceed Pursuant to 28 U.S.C. § 1915 Without Payment of an Initial Partial Filing Fee, issued on December 28, 2006. The Order states, in part, the following:
However, although he need not pay an initial partial filing fee, Plaintiff remains obligated to pay the required $350.00 filing fee through monthly installments as directed in this Order. Accordingly, it is
ORDERED that the Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915, filed October 19, 2006, is granted. It is
FURTHER ORDERED that Mr. Cobbs may proceed in this action without payment of an initial partial filing fee. Plaintiff remains obligated to pay the full amount of the required $350.00 filing fee pursuant to 28 U.S.C. § 1915(b)(1) regardless of the outcome of this action. It is
FURTHER ORDERED that, until the $350.00 filing fee is paid in full, Plaintiff shall make monthly payments to the Court of twenty percent of the preceding month's income credited to his account or show cause why he has no assets and no means by which to make each monthly payment. Plaintiff is directed to make the necessary arrangements to have the monthly payments identified by the civil action number on this Order. In order to show cause, Plaintiff must file a current certified copy of his trust fund account statement. It is
FURTHER ORDERED that if Plaintiff fails to have the appropriate monthly payment sent to the Clerk of the Court each month or to show cause each month, as directed above, why he has no assets and no means by which to make the monthly payment, the Complaint may be dismissed without further notice.Order Granting Plaintiff Leave to Proceed Pursuant to 28 U.S.C. § 1915 Without Payment of an Initial Partial Filing Fee [Doc. #10, issued December 28, 2006], pp. 2-3.
The plaintiff may not — after having admitted in a contemporaneous filing that he received this Order — now claim that he did not receive it in an attempt to avoid dismissal of his case. The plaintiff offers no credible explanation why, since December 28, 2006, he has failed to make payments toward his filing fee or show cause each month why he cannot pay.
Moreover, the plaintiff attaches to his Motion to Reconsider a copy of the his inmate trust fund account statement from November 30, 2006, to May 1, 2007. The statement shows a positive balance, but the plaintiff offers no payments toward his filing fee nor any explanation why he has not made any payments.
IT IS ORDERED that the Motion to Reconsider is DENIED.