Opinion
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISCHARGING ORDER TO SHOW CAUSE ECF NO. 4, 8
STANLEY A. BOONE, Magistrate Judge.
On August 25, 2015, the Court issued an order requiring Plaintiff to either file a long form application to proceed in forma pauperis or pay the filing fee within twenty (20) days. (ECF No. 3.) On September 23, 2015, after Plaintiff failed to respond to the August 25, 2015 order, the Court issued an order to show cause why this action should not be dismissed. (ECF No. 4.) On September 24, 2015, Plaintiff filed a notice of voluntary dismissal. (ECF No. 5.) Later that same day, Plaintiff filed a notice of errata, asking the Court to disregard the notice of voluntary dismissal. (ECF No. 6.) The Court thereafter ordered Plaintiff to explain why the notice of voluntary dismissal was filed. (ECF No. 7.)
On September 25, 2015, Plaintiff filed a response to the Court's order to show cause. (ECF No. 9.) Plaintiff also filed a renewed long form application to proceed in forma pauperis. (ECF No. 8.)
The Court will discharge the order to show cause and grant the application to proceed in forma pauperis. However, the Court admonishes Plaintiff's attorney for the late filings and for filing a notice of voluntary dismissal in circumstances where it appears clear that Plaintiff's attorney did not have her client's consent to dismiss this action.
Plaintiff's response informs the Court that Plaintiff was previously "convinced" that he would not qualify to proceed in forma pauperis and could not pay the filing fee and, apparently, simply ignored the Court's orders and allowed the filing deadline to lapse. Plaintiff's attorney attempted to contact Plaintiff "several times" and spoke with Plaintiff's wife on September 24, 2015-after the filing deadline passed and the Court issued the order to show cause. Plaintiff was unable to speak with his attorney due to undisclosed mental issues. Plaintiff's wife informed Plaintiff's counsel that she lost her job recently and Plaintiff's counsel convinced Plaintiff's wife to complete the necessary paperwork for the application to proceed in forma pauperis. A letter from Plaintiff's wife indicates that she "total[l]y forgot" to fill out the required forms because of stress associated with losing her job.
Although Plaintiff's wife offers some excuse for failing to file on time, it is unclear why Plaintiff's attorney failed to stay on top of the deadlines or request an extension of time. From the record, it appears that Plaintiff's attorney at one point simply gave up and filed a notice of voluntary dismissal, instead of requesting an extension of time or otherwise informing the Court of the difficulties communicating with her client. While the Court understands that communication difficulties may arise between attorneys and their clients, it hardly seems appropriate for Plaintiff's attorney to voluntarily dismiss an action, an extremely prejudicial action from her client's perspective, in the absence of any consent or communication from her client. The client is admonished to communicate with counsel or respond to counsel when asked to do so as his rights may be otherwise affected in the future.
Based upon the foregoing, it is HEREBY ORDERED that:
1. The Court's September 23, 2015 order to show cause is DISCHARGED; and
2. Plaintiff's September 25, 2015 application to proceed in forma pauperis is GRANTED;
3. The Clerk of Court is DIRECTED to issue a summons; and
4. The United States Marshal is DIRECTED to serve a copy of the complaint, summons, and this order upon the defendant if requested by the plaintiff.
IT IS SO ORDERED.