Opinion
Case No. 2:04cv207.
June 22, 2004
ORDER
This matter is before the court on plaintiff's Motions for Appointment of Counsel and for Official Service of Process filed June 3, 2004. Plaintiff was allowed to proceed with his claim in forma pauperis in an order dated March 26, 2004 [6-1], which order required that plaintiff pay $2.50 initial filing fee and allow the remaining fee to be collected from his inmate account. Plaintiff was also required to certify that he had exhausted his claims in the prison grievance system.
Although plaintiff made a filing with the court attempting to explain why he did not exhaust his administrative remedies [8-1], there is no record of plaintiff making any payment toward the filing fee. Because plaintiff failed to comply with the court's order, the case was dismissed on June 2, 2004 [11-1]. The present motions were received the day following the dismissal order and it is unlikely that plaintiff was aware the case had been dismissed. Plaintiff did, however, request appointment of counsel in an undated letter to the court postmarked May 17, 2004, in which letter plaintiff claims that defendant is in possession of document which would prove he exhausted his administrative remedies.
Plaintiff's most recent correspondence with the court is dated June 7, 2004, in which he acknowledges the case was dismissed without prejudice and makes similar allegations regarding documents claimed to be in defendants' possession. In the same letter defendant accuses the court of racism and states, contrary to his earlier statement, that the case was dismissed with prejudice.
In order to clarify any confusion the court reiterates that the case was dismissed for failure to pay a filing fee and for failure to submit proof of exhaustion of administrative remedies. The Motions for Appointment of Counsel and for Official Service of Process are inappropriate given the current procedural posture of this case. Plaintiff is free to refile his complaint once he has paid his filing fee and is able to submit a certification that he has exhausted his administrative remedies. For the foregoing reasons, plaintiff's motions are hereby
DENIED.
IT IS SO ORDERED.