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UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

STEVEN A . SWAN, )

Plaintiff )

)

v . ) NH C.A . No . 05-401ECT

RI C .A . No . 05-491T

PAUL J . BARBADORO, )

ET AL ., )

Defendants )

7

PLAINTIFF'S MOTION FOR REFUND OF FILING FEE WHICH THIS COURT

ERRONEOUSLY RULED HAD NOT BEEN PAI D

I, Steven A .-Swan, the incarcerated plaintiff in this action,

proceeding ro as, hereby moves this Court for a refund of the

two hundred fifty dollar ($250 .00) filing fee in this case, which

this Court erroneously ruled had not been paid and which this Court

used as the sole basis for dismissing my complaint .

1 . On November 14, 2005, I filed the Complaint in this action with

the clerk of the U .S . District Court for the District of New

Hampshire . At the time of the filing, I paid the two hundred

fifty dollar ($250 .130) filing fee, which is evidenced by the

docket entry (No . 1) in that court and which also shows that

the Receipt Number is 028059 .

2 . Because one of the named defendants in this case was a sitting

judge of that court, all of the other judges recused themselve s

from the case and it was transferred to the U .S . District Court

for the District of Rhode Island .

3 . On April 4, 2006, Senior U .S . Magistrate ..iudge Jacob Hagopian

issued a Report and Recommendation in this case recommending,

ORDER

DENIED. No basis exists to refund the filing fee for a plaintiff who is

unsucessful in the Prosecution of his case.

Jacob Hagopian

Senior II_ c
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inter alia , that my complaint be dismissed because I had . not

paid the filing fee . ("And it appears that the plaintiff has not

paid the filing fee required in all civil cases nor has he filed

a motion to proceed in forma pauperis ." Page 3 of Magistrate

Judge Hagopian ' s Report and Recommendation . )

4 . On May 11, 2006, I mailed an Objection to Magistrate Judge Hagopian's Report and Recommendation to this Court . in which I provided evidence that I bad, in fact , paid the filing fee,in the

New Hampshire court . (" However, Docket Entry #1 in the New Hampshire District Court [ where this action originated) clearly

shows that the $250 . 00 filing fee was paid by me and that the

receipt number is 028059 ." Paragraph 9 of my Objection . )

5 . On May 25, 2006,'Chief Judge Ernest C . Torres of this Court

dismissed my complaint because he erroneously believed that I

had not paid the filing fee .

However , as the magistrate judge pointed out, Swan's

reliance on N .B .L .R . 4 .3( d)(2) is misplaced because the

rule merely permits a magistrate judge to appoint someone

to effect service and it does so only if the incarcerated

person is proceeding in forma pauperis . Moreover , the rule

permits but does not require the magistrate j udge to direct

the clerk to issue summonses and does so only if the inmate

has paid the filing fee . Here, Swan is not proceeding in

forma pauperis and has not paid the filing fee .

This Court agrees with the magistrate judge ' s finding

that Swan also has failed to state a claim on which relief

can be granted because he does not allege that his conviction has been reversed on direct appeal, expunged by executive order or declared invalid . Heck v . Humphrey , 512 U .S .

477, 486-487, 114 S .Ct . 2364, 2372-3 (1994) . However, this

Court does not base its decision on that ground because the

show cause order does not provide Swan with notice of and

an opportunity to address the issue .

Accordingly, Swan ' s complaint is hereby DISMISSED fo r

(2)
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failure to prosecute .

6 . Because this Court dismissed my complaint because of my alleged

failure to pay the filing fee , on May 31, 2006 1 wrote a letter

to the Clerk of the New Hampshire District Court requesting a

refund of the $250 . 00 I had paid to that court for docketing

the case . On June 8 , 2006, the Chief Deputy Clerk of that court

responded that he did not have the authority to refund my money .

WHEREFORE, because this Court dismissed my complaint because it

erroneously ruled that I had not paid the $250 .00 filing fee ,

I hereby request that this Court--

A . Order the clerk of the U .S . District Court for the District of

New Hampshire to refund to me the $250 . 00 I had paid to that

Court ; and

B . Provide such other and further relief as is authorized by law

or equity .

Because of the nature of this motion, I do not believe that a

memorandum of law in support of it is necessary .

Copies of this motion have not been served upon the named defendants in this case because no magistrate judge ever ordered the

clerk to sign and seal the proposed summonses and return them to

me so that I could serve them, nor have any of the named defendants

responded to the Notices of Lawsuit and Requests for Waiver of Service of Summons I mailed to them .

Dated ; June 13, 2006 Res ectfully sub itted,

teven A . Sw n, o se

00259-049 Camp

Federal Medical Center, Devens

P .O. Box 87 9

(3) Ayer, MA 01432