Opinion
23-3190-JWL
08-25-2023
FREDDIE L. WILLIAMS, Plaintiff, v. JARED JOHNSTONE, ET AL., Defendants.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
Plaintiff Freddie L. Williams, who is incarcerated at the Wyandotte County Detention Center in Kansas City, Kansas initiated this matter by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) On August 24, 2023, the Court issued a memorandum and order noting that Plaintiff is subject to the “three-strikes” provision of 28 U.S.C. § 1915(g), so he may not proceed without prepayment of the filing fee unless he shows that he is under imminent danger of serious physical injury. (Doc. 4.) Because the complaint did not make such a showing, the Court ordered Plaintiff to pay the full $402.00 district court filing fee on or before September 11, 2023, or the Court will dismiss this matter without prejudice and without additional prior notice to Plaintiff. Id.
The matter comes now before the Court on Plaintiff's motion for a 60-day extension of time in which to pay the full filing fee. (Doc. 5.) Plaintiff explains that he is currently incarcerated, has no income, and has no money to pay the filing fee. Id. He further explains that he is seeking release on bond which would allow him to seek outside employment, but he will be held until at least September 26, 2023. Id.
Under 28 U.S.C. § 1914(a), “the plaintiff must ordinarily prepay the filing fee” unless he or she is granted leave to proceed in forma pauperis. Hoffmeister v. United Student Aid Funds, Inc., 818 Fed.Appx. 802, 805 (10th Cir. 2020) (unpublished); see also 28 U.S.C. § 1914(a) (“The clerk of each district court shall require the parties instituting any civil action . . . in such court . . . to pay a filing fee ....” (emphasis added)). Because he is subject to the three-strikes provision, Plaintiff's lack of funds to pay the filing fee does not entitle him to proceed without prepayment of the fee unless he shows imminent danger of serious physical harm, which he has not. Thus, the Court's previous order stands and Plaintiff is allowed to and including September 11, 2023 to submit the full filing fee. If Plaintiff does not pay the full fee on or before September 11, 2023, the Court will dismiss this matter without prejudice.
A dismissal without prejudice will not bar Plaintiff from refiling this matter at a later date when he is able to pay the full filing fee, although Plaintiff should be aware of other potential bars, such as any applicable statutes of limitation.
IT IS THEREFORE ORDERED that the motion for extension of time (Doc. 5) is denied. The full filing fee remains due on or before September 11, 2023.
IT IS SO ORDERED.