Samuels v. Nebraska Dept. of Corrections et al

Filing 11

MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis. The filing fee shall be collected and remitted, as funds exist, in the manner set forth in 28 U.S.C. § 1915(b)(2). Until the full filing fee of $350.00 is pai d, the prisoner shall be obligated to pay, and the agency having custody of the prisoner shall forward to the clerk of the court, 20 percent of the preceding months income in such months as the account exceeds $10.00. The clerk of the court shal l serve a copy of this order on the appropriate financial officer for plaintiffs current institution. Plaintiff shall review the Notice RegardingSummons Forms attached to this Order. Ordered by Senior Judge Lyle E. Strom. (Copies mailed as directed and pro se party)(MKR)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA RICHARD Z. SAMUELS, ) ) Plaintiff, ) ) v. ) ) NEBRASKA DEPT. OF CORRECTIONS;) NEBRASKA STATE PENITENTIARY, ) Health Services; DR. ) FREDERICK HATHAWAY, ) Orthopedic Surgeon, ) ) Defendants. ) ______________________________) 4:09CV3092 MEMORANDUM AND ORDER This matter is before the Court on plaintiff Richard Z. Samuels' Motion for Leave to Proceed In Forma Pauperis ("IFP") (Filing No. 2). The Court has received a certified copy of Plaintiff plaintiff's trust account information (Filing No. 9). will be permitted to proceed IFP. Pursuant to the Prison Litigation Reform Act, a prisoner plaintiff is required to pay the full amount of the $350.00 filing fee by making monthly payments to the Court, even if the prisoner is proceeding IFP. 28 U.S.C. 1915(b). "[T]he PLRA makes prisoners responsible for their filing fees the moment the prisoner brings a civil action or files an appeal." In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997); Jackson v. N.P. Dodge Realty Co., 173 F. Supp. 2d 951 (D. Neb. 2001). Plaintiff must pay an initial partial filing fee in the amount of 20 percent of the greater of plaintiff's average monthly account balance or average monthly deposits for the six months preceding the filing of the complaint. Plaintiff's account balance is zero, and the Court cannot assess an initial partial filing fee (Filing No. 9). However, as set forth in 28 U.S.C. 1915(b)(4), "[i]n no event shall a prisoner be prohibited from bringing a civil action . . . for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee." When the prisoner is unable to pay the initial partial filing fee due to a lack of funds, the requirement that the initial partial filing fee will be paid at the outset of the case is suspended. 2d at 957 n. 9. See Jackson, 173 F. Supp. Instead, "the whole of the . . . filing fees are to be collected and paid by the installment method contained in 1915(b)(2)." 1997). Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. This matter will therefore proceed without payment of the initial partial filing fee as set forth below. IT IS ORDERED: 1. Plaintiff's Motion for Leave to Proceed In Forma The filing fee shall be Pauperis (Filing No. 2) is granted. collected and remitted, as funds exist, in the manner set forth in 28 U.S.C. 1915(b)(2). Until the full filing fee of $350.00 is paid, the prisoner shall be obligated to pay, and the agency having custody of the prisoner shall forward to the clerk of the court, 20 percent of the preceding month's income in such months as the account exceeds $10.00. 2. The clerk of the court shall serve a copy of this order on the appropriate financial officer for plaintiff's current institution. -2- 3. Plaintiff shall continue to keep the Court informed of his current address at all times while this case is pending, as failure to do so may result in dismissal of this matter. 4. Plaintiff shall review the "Notice Regarding Summons Forms" attached to this Order. DATED this 22nd day of June, 2009. BY THE COURT: /s/ Lyle E. Strom ______________________________ LYLE E. STROM, Senior Judge United States District Court -3- NOTICE REGARDING SUMMONS FORMS FOR PRO SE PRISONERS PROCEEDING IN FORMA PAUPERIS A prisoner who is proceeding pro se and in forma pauperis as the plaintiff in a civil case shall not provide the court with summons forms (or Form 285) for service of process on the defendant(s) until notified to do so by the Clerk of Court. The Prison Litigation Reform Act ("PLRA") requires the court to screen complaints brought by prisoners. Therefore, the court conducts "initial review" of a complaint filed by a prisoner before any summons can be served on a defendant. Generally, the court conducts "initial review" shortly after the Clerk of Court receives the initial partial filing fee from the plaintiff. After the initial partial filing fee has been paid, and initial review has been completed, the Clerk of Court arranges for service of process as follows: 1. The Clerk of Court will be directed by a District Judge or Magistrate Judge to send the plaintiff a blank summons form for each defendant named in the caption of the case, together with Form 285. 2. The plaintiff shall thereafter complete the summons form(s) and Form 285, because without those forms, service of process cannot occur. 3. The plaintiff shall then mail the completed summons form(s) and Form 285 to the Clerk of Court. Upon receipt of the completed forms from the plaintiff, the Clerk of Court will sign the summons form(s) to be sent by the Clerk, together with a copy of the complaint for each defendant, to the U.S. Marshal for service on the defendant(s). 4. Because the plaintiff is proceeding in forma pauperis, the plaintiff is not responsible for copying the complaint or arranging for service of process. THEREFORE, ALL PLAINTIFFS ARE REQUESTED NOT TO SEND SUMMONS FORMS TO THE COURT UNLESS THE CLERK OF COURT HAS FIRST SENT THE FORMS TO THE PLAINTIFF AFTER "INITIAL REVIEW" HAS BEEN COMPLETED, AS STATED ABOVE. -4-

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