Opinion
5:23-cv-207-GCM
02-22-2024
BRANDON NEAL HOLLAND, Plaintiff, v. CHRIS SHEW, et al., Defendants.
ORDER
GRAHAM C. MULLEN, UNITED STATES DISTRICT JUDGE.
THIS MATTER is before the Court sua sponte.
The pro se Plaintiff, a pretrial detainee at the Wilkes County Jail, filed this civil rights action pursuant to 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and “Tort Claim.” [Doc. 1]. The Plaintiff did not pay the filing fee or apply to proceed in forma pauperis. On December 21, 2023, the Court filed a Notice of Deficiency, informing the Plaintiff that he must pay the filing fee or file an Application to proceed in forma pauperis within 21 days. [Doc. 2]. The Plaintiff was cautioned that “[f]ailure to do so may result in the dismissal of this action without prejudice for failure to prosecute.” [Id. at 1].
The Plaintiff has not paid the filing fee or filed an Application to proceed in forma pauperis the time to do so has expired. Instead, he filed a “Petition for Cost Under Rule 40 of Supreme Court of the United States.” [Doc. 3]. He argues that he is exempt from paying the filing fee as a veteran. [Id.]. Supreme Court Rule 40(1) exempts “a veteran suing to establish reemployment rights under 38 U.S.C. § 2022, or under any other provision of law exempting veterans from the payment of fees or court costs...” from prepaying fees or costs. However, the Complaint does not address reemployment rights, and it does not identify any other provision that would excuse the Plaintiff from prepaying fees or costs in this civil rights action.Accordingly, the Petition will be denied and the Plaintiff must either pay the filing fee or file an Application to proceed in forma pauperis within 21 days of this Order. Failure to comply will result in the dismissal of this action without further notice.
Rule 40 also addresses the waiver of prepaying fees or costs for seamen and accused persons seeking certiorari review, which do not apply here. U.S.S.Ct. Rule 40(2)-(3).
The Petition also fails to adequately demonstrate the Plaintiff's veteran status as required by Rule 40(1).
IT IS, THEREFORE, ORDERED that:
1. The Plaintiff's “Petition for Cost Under Rule 40 of Supreme Court of the United States” [Doc. 3] is DENIED.
2. The Plaintiff shall pay the filing fee or file an Application to proceed in forma pauperis within twenty-one (21) days of this Order. The failure to comply will result in the dismissal of this action without further notice.
The Clerk is respectfully instructed to mail the Plaintiff a blank IFP Application long form (AO 239) and a copy of this Order.
IT IS SO ORDERED.