Davis v. C/O Milkan

Filing 7

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 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 months income in such months as the account exceeds $10.00. The Clerk of the court shall serve a copy of this order on the appropriate financial officer for Plaintiff's current institution. 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. Ordered by Judge Richard G. Kopf. (Copy mailed to pro se party and copy to institution as directed)(GJG)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA HARRY E. DAVIS, Plaintiff, v. C/O MILKAN, Defendant. ) ) ) ) ) ) ) ) ) 4:09CV3269 MEMORANDUM AND ORDER This matter is before the court on Plaintiff's Motion for Leave to Proceed In Forma Pauperis ("IFP"). (Filing No. 2.) The court has received a certified copy of Plaintiff's trust account information. (Filing No. 6.) Plaintiff is permitted to proceed IFP. Pursuant to the Prison Litigation Reform Act, a prisoner plaintiff is required to pay the full amount of the court's $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). Pursuant to 28 U.S.C. 1915(b)(1), 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 $0, and the court cannot assess an initial partial filing fee. 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. See Jackson, 173 F. Supp. 2d at 957 n. 9. Instead, "the whole of the . . .filing fees are to be collected and paid by the installment method contained in 1915(b)(2)." Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997). This matter will therefore proceed without payment of the initial partial filing fee as set forth below. IT IS THEREFORE ORDERED that: 1. Plaintiff's Motion for Leave to Proceed In Forma Pauperis (filing no. 2), is granted. 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 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. 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 3rd day of February, 2010. BY THE COURT: Richard G. Kopf United States District Judge 2 N O T I C E 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 c a se shall not provide the court with summons forms (or Form 285) for service of process o n the defendant(s) until notified to do so by the Clerk of the court. T h e Prison Litigation Reform Act ("PLRA") requires the court to screen complaints b ro u g h t 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 " in itia l review" shortly after the Clerk of the court receives the initial partial filing fee from t h e plaintiff. After the initial partial filing fee has been paid, and initial review has been c o m p l e te d , the Clerk of the court arranges for service of process as follows: 1. T h e Clerk of the 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 c a se , together with Form 285. 2. T h e plaintiff shall thereafter complete the summons form(s) and Form 285, b ec au se without those forms, service of process cannot occur. 3. T h e plaintiff shall then mail the completed summons form(s) and Form 285 to th e Clerk of the court. Upon receipt of the completed forms from the plaintiff, the Clerk of th e court will sign the summons form(s) to be sent by the Clerk, together with a copy of the co m p lain t for each defendant, to the U.S. Marshal for service on the defendant(s). 4. B e c au s e the plaintiff is proceeding in forma pauperis, the plaintiff is not r e sp o n s ib l e for copying the complaint or arranging for service of process. *This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court. 3

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