JAMES MAHAN, District Judge
This prisoner civil rights action comes before the court following upon the plaintiff's motion (#47) for stay of proceedings pending rehearing on appeal.
The motion will be denied as unnecessary. No mandate has been issued, and no proceedings currently are pending in the district court to stay. Any stay with regard to the appellate proceedings must be sought in the Court of Appeals.
The clerk will be directed to forward this order to the Court of Appeals in an immediate supplemental transmittal, given the request for a stay.
For the benefit of the Court of Appeals, this court further notes as follows.
The December 21, 2007, letter filed with the Court of Appeals by Deputy Attorney General Susan K. Stewart completely misstates the record to the Court of Appeals.
Final judgment in this case was entered on March 15, 2007, not July 31, 2007 as stated by Ms. Stewart. Plaintiff never paid the $11.66 initial partial filing fee in this case, after being afforded multiple opportunities by the court. The final deadline given to plaintiff to pay the initial partial filing fee was February 16, 2007. Plaintiff did not pay the initial partial filing fee by this date, by the time that judgment was entered, or, indeed, at any time thereafter. The case accordingly was dismissed without prejudice on March 15, 2007, due to the plaintiff's failure to pay the initial partial filing fee by the extended deadline of February 16, 2007, in response to multiple orders of the court.
No payments — of any kind — were received by the clerk on this case prior to the dismissal of the case.
The court's financial records reflect that the court received an installment payment — as opposed to the initial partial filing fee — of $20.00 from the Nevada Department of Corrections on April 13, 2007, nearly a month after entry of judgment. This $20.00 payment received by the clerk nearly a month after entry of final judgment was an automatic installment payment that is required to be paid under the Prison Litigation Reform Act (PLRA) even if a case is dismissed. This is expressly provided for in the court's initial IFP order:
IT IS ORDERED that plaintiff's application to proceed
in forma pauperis is GRANTED; however,
plaintiff shall be required to pay an initial installment fee in the amount of $11.66 toward the full filing fee of three hundred fifty dollars ($350.00). Plaintiff shall have thirty (30) days from the date this order is entered in which to have the designated fee sent to the Clerk of Court
. Failure to do so may result in dismissal of this action. Furthermore, even if this action is dismissed, the full filing fee still must be paid pursuant to 28 U.S.C. § 1915(b)(2).
. . . . .
IT FURTHER IS ORDERED that the Clerk of Court shall provide plaintiff with two copies of this order. Plaintiff is ordered to make the necessary arrangements to have one copy of this order attached to the check in the amount of the designated fee, by sending a copy of the order with the "brass slip" for the amount of the fee to Inmate Services for the Nevada Department of Corrections.
IT FURTHER IS ORDERED that, pursuant to
28 U.S.C. § 1915(b)(2), the Nevada Department of Corrections shall pay to the Clerk of the United States District Court, District of Nevada, 20% of the preceding month's deposits to plaintiff's account (in the months that the account exceeds $10.00) until the full $350.00 filing fee has been paid for this action. . . . .
#2, at 1-2 (emphasis added).
Two points are significant.
First, the court did not receive any payments — of any description — prior to entry of final judgment herein. The case properly was dismissed on March 15, 2007 — after multiple opportunities for compliance — because plaintiff did not pay the $11.66 initial partial filing fee required under both the court's November 3, 2006, order and the PLRA.
Plaintiff instead, after sending his pauper application, depleted his account and spent approximately $73.39 in discretionary inmate store purchases. See #32, at 3; see also #9.
Second, plaintiff never paid the $11.66 partial filing fee, and certainly not by the final deadline given of February 16, 2007. See #14, at 2.
In sum, this case was properly dismissed on March 15, 2007, because plaintiff did not pay the initial partial filing fee by February 16, 2007, despite being given multiple warnings and multiple opportunities to pay. That dismissal was entirely proper and was and remains fully supported by the record — both the suit record and the court's financial records. The court's receipt of automatic installment payments after entry of final judgment — payments that are required to be paid under the PLRA even if a case is dismissed as funds become available in the inmate's account — did not in any way undermine the basis for the dismissal.
IT THEREFORE IS ORDERED that plaintiff's motion (#47) for stay of proceedings pending rehearing on appeal is DENIED as unnecessary.
IT FURTHER IS ORDERED that the clerk of court shall send a supplemental transmittal to the Court of Appeals with this order, immediately and by the fastest means of transmittal, including by facsimile transmission.