Opinion
1:23-cv-00134-EPG (PC)
01-31-2023
THOMAS K. MILLS, Plaintiff, v. ZACHERY JONES, et al., Defendants.
ORDER FOR PLAINTIFF TO SUBMIT APPLICATION TO PROCEED IN FORMA PAUPERIS OR PAY FILING FEE WITHIN 45 DAYS
Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff has not paid the $402.00 filing fee or submitted an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Plaintiff did submit “Case Law - Concerning Filing Fee.” (ECF No. 2). Plaintiff cites to Owens v. Keeling, 461 F.3d 763 (6th Cir. 2006), which found that the plaintiff did “not have to pay a second filing fee for refiling his complaint after it was initially dismissed without prejudice for failure to exhaust.” Id. at 772. However, the Owens decision was based on the exhaustion procedures in the Sixth Circuit, which included “heightened pleading standards.” Id. at 772-73. Thus, “Owens is inapplicable in this case. Unlike the plaintiff in Owens, here plaintiff was not subject to the heightened-pleading standard the Sixth Circuit was then requiring prisoners to meet by pleading and demonstrating exhaustion.” Slaughter v. Carey, 2007 WL 1865501, at *1 (E.D. Cal. June 28, 2007). See also Perkins v. Hartwick, 2022 WL 17415070, at *2 (E.D. Cal. Dec. 5, 2022).
Accordingly, IT IS HEREBY ORDERED that:
Within forty-five (45) days of the date of service of this order, Plaintiff shall submit the attached application to proceed in forma pauperis, completed and signed, or in the alternative, pay the $402.00 filing fee for this action.
No requests for extension will be granted without a showing of good cause. Failure to comply with this order will result in dismissal of this action.
IT IS SO ORDERED.