Opinion
23-3167-JWL
10-05-2023
NICHOLAS COX, Plaintiff, v. JEFF ZMUDA, et al., Defendants.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
Plaintiff filed this pro se civil rights case under 42 U.S.C. § 1983. Plaintiff is incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”). This matter is before the Court on Plaintiff's Motion for Clarification (Doc. 10).
On July 11, 2023, the Court entered a Notice of Deficiency (Doc. 2-1) ordering Plaintiff to either pay the civil action filing fee or file a motion for leave to proceed in forma pauperis. The deadline for Plaintiff to comply was August 10, 2023. The order provided that if Plaintiff fails to comply by the deadline “this action may be dismissed without further notice for failure to comply with this court order.” Id. at 1. Plaintiff failed to either pay the filing fee or file a motion for leave to proceed in forma pauperis by the deadline. On August 14, 2023, the Court dismissed this case without prejudice under Fed.R.Civ.P. 41(b) for failure to comply with the Court order. (Docs. 4, 5.)
On August 23, 2023, Plaintiff filed a motion for reconsideration (Doc. 6). On August 30, 2023, the Court entered an Order (Doc. 7) granting the motion and reopening this case. The Order granted Plaintiff until September 13, 2023, in which to either pay the filing fee or submit a motion for leave to proceed in forma pauperis. On September 15, 2023, the Court dismissed this matter without prejudice under Fed.R.Civ.P. 41(b) for failure to either pay the filing fee or to file a motion for leave to proceed in forma pauperis by the deadline set forth in the Court's Order.
On October 4, 2023, Plaintiff filed a Motion for Clarification, asking the Court whether or not he has to refile his case, and whether or not he will receive a refund of the filing fee he sent in. (Doc. 10, at 1.) He asks the Court to instruct him on what he is supposed to do. Id. at 2.
The Court will grant the motion to the extent that the Court provides the following clarification. The Court received a check for the filing fee on October 4, 2023, after this case was closed. Because the check was for an incorrect amount, the payment was returned. Plaintiff should be receiving the refund and should check with the finance department at EDCF if he does not receive it.
The Court cannot give Plaintiff legal advice on what steps he should take going forward. His case was dismissed without prejudice, and therefore he is not barred from refiling his case. However, the Court noted the deficiencies in his Complaint when it dismissed this case. The Court noted that Plaintiff's Complaint in this case fails to allege any personal participation by Defendant Zmuda or Defendant Butler-the only two named defendants-and therefore fails to state a claim against the two named defendants.
The Court also noted that Defendants Zmuda and Butler are also named defendants in Case No. 22-3154, which involves similar claims and is pending in this Court. Rule 20 governs permissive joinder of parties and pertinently provides:
(2) Defendants. Persons . . . may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.Fed. R. Civ. P. 20(a)(2). Rule 18(a) governs joinder of claims and pertinently provides: “A party asserting a claim . . . may join . . . as many claims as it has against an opposing party.” Fed.R.Civ.P. 18(a).
To the extent Plaintiff seeks to reinstate this closed case, his request is denied.
IT IS THEREFORE ORDERED THAT Plaintiff's Motion for Clarification (Doc. 10) is granted to the extent that the Court provides the clarification set forth in this Memorandum and Order.
IT IS SO ORDERED.