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Diamantopoulos v. State

United States District Court, D. Nebraska

August 3, 2015

GEORGIOS DIAMANTOPOULOS, Plaintiff,
v.
STATE OF NEBRASKA, et al., Defendants.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP, Chief District Judge.

This matter is before the Court on its own motion. For the reasons explained below, the Court will dismiss this action because Plaintiff Georgios Diamantopoulos failed to comply with this court's orders.

I. BACKGROUND

Diamantopoulos[1] filed a Complaint (Filing No. 1) on April 13, 2015, and then a Motion for Leave to Proceed in Forma Pauperis (Filing No. 5) on April 21, 2015. Diamantopoulos is a pro se litigant incarcerated at the Tecumseh State Prison in Tecumseh, Nebraska. Diamantopoulos generally alleged in the Complaint that prison officials were violating Diamantopoulos's right of access to the courts by refusing to provide various word processing services needed in order to comply with Supreme Court Rule 33.1(g)(1). See Sup.Ct. R. 33 ("Document Preparation: Booklet Format; 8 1/2-by 11-Inch Paper Format").

On April 22, 2015, the Court concluded that Diamantopoulos had, on at least three prior occasions while incarcerated, brought cases that were dismissed on the grounds that they were frivolous or failed to state a claim upon which relief may be granted. The Court ordered Diamantopoulos to either pay the Court's $400.00 filing and administrative fees or show cause for why this case should not be dismissed pursuant to 28 U.S.C. § 1915(g). (Filing No. 9 at ECF 2.)

Thereafter, in an order dated May 11, 2015, the Court noted Diamantopoulos's repeated filing of supplementary materials frustrated the Court's ability to effectively manage and progress this case. Specifically, the Court could not discern which of Diamantopoulos's filings pertained to the allegations raised in the Complaint and which filings pertained to Diamantopoulos's efforts to proceed in forma pauperis. Accordingly, the Court ordered Diamantopoulos to file two separate documents (1) an amended complaint, and (2) a response to the Court's order dated April 22, 2015. With respect to the response, the Court ordered Diamantopoulos to "clearly designate on the face of the document that it [was] the Response to the Court's Show Cause-Order.'" (Filing No. 15 at ECF 3.) The Court specifically ordered Diamantopoulos to file no other document aside from these two. ( Id. ) In addition, the Court warned Diamantopoulos that failure to file either document would result in the Court dismissing this action without prejudice and without further notice.

Diamantopoulos filed an Amended Complaint (Filing No. 16) on May 26, 2015, which set forth an entirely different theory of relief than that set forth in the original Complaint. Diamantopoulos later filed an "Application for Time Served Under Habieas [sic] Corpus Under New Law" (Filing No. 17), a document captioned "Rule 60(b) F.R.C.P. Extraordinary Circumstance Amended Complaint on 5/13/15 with Evidence of Support!" (Filing No. 18), and a document captioned "Federal Habas [sic] Corpus Application § 2254" (Filing No. 19). Also appearing on the docket sheet is a letter from Diamantopoulos to Michael E. Gans, Clerk of the Eighth Circuit Court of Appeals, seeking "Habeas and Damages."[2] (Filing No. 20.)

II. DISCUSSION

The court may dismiss an action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and the court's inherent authority to manage its docket. Link v. Wabash Railroad Co., 370 U.S. 626 (1962). In particular, Rule 41(b) allows for the involuntary dismissal of a plaintiff's claims where he has failed to prosecute those claims, comply with the Federal Rules of Civil Procedure or local rules, or follow a court order. Fed.R.Civ.P. 41(b).

Here, Diamantopoulos did not file a "Response to the Court's Show-Cause Order, " despite the Court's warning that failure to do so would result in the Court dismissing this case without prejudice and without further notice. In addition, Diamantopoulos filed other supplementary documents despite the Court's order that Diamantopoulos file no other document aside from an amended complaint and a response to the Court's order dated April 22, 2015. The Court previously warned Diamantopoulos that the repeated filing of supplementary materials frustrates the Court's ability to effectively manage and progress this case. The Court can no longer discern what relief Diamantopoulos seeks in this action. Indeed, in Diamantopoulos's most-recent motion, Diamantopoulos complains this action should have been docketed as a habeas corpus action under 28 U.S.C. § 2254, further frustrating the Court's ability to progress this case.

For the foregoing reasons, the Court will dismiss this case without prejudice based on Diamantopoulos's failure to comply with this Court's orders and the Court's inherent authority to manage its docket. In the alternative, the Court will dismiss this case because Diamantopoulos is not entitled to habeas corpus relief for the reasons discussed below.

III. PENDING MOTIONS FOR HABEAS CORPUS RELIEF

Diamantopoulos is serving a life sentence for first-degree murder. ( See Case No. 4:07CV3191, Filing No. 1.) Diamantopoulos has filed at least eight previous habeas corpus petitions in this Court. See Diamantopoulos v. Nebaska, 8:11CV406 (dismissing eighth petition on February 14, 2012, as successive petition); Diamantopolous v. Venditte, 4:10cv3079 (dismissing seventh petition on June 2, 2010, as a successive petition); Diamantopolous v. Nebraska, 4:07cv3191(dismissing sixth petition on December 7, 2007, as a successive petition); Diamantopolous v. Clarke, 4:01cv3287 (dismissing fifth petition on September 3, 2002, as a successive petition); Diamantopolous v. Nebraska Dep't of Corr., et al., 4:98cv3262 (dismissing fourth petition on October 14, 1998, as a successive); Rehbein v. Clarke, 94 F.3d 478 (8th Cir. 1996), aff'g 855 F.Supp. 1066 (D. Neb. 1994) (affirming dismissal of Diamantopoulos's third petition for writ of habeas corpus under principles concerning "abuse of the writ" before enactment of the Antiterrorism and Effective Death Penalty Act of 1996).

The statutory prohibition against successive petitions by state prisoners is codified in 28 U.S.C. § 2244, ...


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