Hunt v. Houston et al

Filing 48

MEMORANDUM AND ORDER - Plaintiff is permitted leave to appeal in forma pauperis. Plaintiff has already submitted the initial partial filing fee of $450.00. Plaintiff's institution shall collect the remaining $5.00 in the manner set forth in 28 U.S.C. § 1915(b)(2), quoted above, and shall forward those installments to the court. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (Copy provided to Eighth Circuit Court of Appeals and Plaintiff's Institution as directed) (Copy mailed to: Jim Worster, Accounting/Finance Manager, Nebraska Department of Correctional Services, Central Office Accounting, PO Box 94661, Lincoln, NE 68508.) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT E. HUNT,
Plaintiff,
v.
ROBERT HOUSTON, et al.,
Defendants.

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4:11CV3086

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Notice of Appeal, filed on May 30,
2012. (Filing No. 43.) Plaintiff did not submit the full appellate filing fee or a motion
for leave to proceed in forma pauperis. (See Docket Sheet.) However, Plaintiff
submitted a partial appellate filing fee in the amount of $450.00 on June 14, 2012.
Although Plaintiff did not submit a request to proceed in forma pauperis, after a
review of the records before the court, Plaintiff is permitted to proceed IFP.
However, pursuant to the Prison Litigation Reform Act (“PLRA”), a prisoner
plaintiff is required to pay the full amount of the court’s $455.00 appellate filing fee
by making monthly payments to the court, even if the prisoner is proceeding IFP. 28
U.S.C. § 1915(b). The PLRA “makes prisoners responsible for their filing fees the
moment the prisoner brings a civil action or files an appeal.” Jackson v. N.P. Dodge
Realty Co., 173 F. Supp. 2d 951 (D. Neb. 2001) (citing In re Tyler, 110 F.3d 528, 529
(8th Cir. 1997)). The appellate filing fee is assessed when the district court receives
the prisoner’s notice of appeal. Henderson v. Norris, 129 F.3d 481, 485 (8th Cir.
1997).
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. Accordingly, based on the records before the court, the initial partial filing
fee is $43.39, based on average monthly balance of $216.93. (Filing No. 47.)

Because Plaintiff has already paid $450.00, substantially more than the assessed initial
partial filing fee, the Clerk of the court may process the appeal.
In addition to the initial partial filing fee, Plaintiff must “make monthly
payments of 20 percent of the preceding month’s income credited to the prisoner’s
account.” 28 U.S.C. § 1915(b)(2). The statute places the burden on the prisoner’s
institution to collect the additional monthly payments and forward them to the Court
as follows:
After payment of the initial partial filing fee, the prisoner shall be
required to make monthly payments of 20 percent of the preceding
month’s income credited to the prisoner’s account. The agency having
custody of the prisoner shall forward payments from the prisoner’s
account to the clerk of the court each time the amount in the account
exceeds $10 until the filing fees are paid.
28 U.S.C. § 1915(b)(2). Therefore, the remaining amount of the appellate filing fee,
or $5.00, shall be collected pursuant to this procedure.
IT IS THEREFORE ORDERED that:
1.

Plaintiff is permitted leave to appeal in forma pauperis. Plaintiff has

already submitted the initial partial filing fee of $450.00.
2.

Plaintiff’s institution shall collect the remaining $5.00 in the manner set

forth in 28 U.S.C. § 1915(b)(2), quoted above, and shall forward those installments
to the court.
3.

The Clerk of the court is directed to send a copy of this order to the

appropriate official at Plaintiff’s institution and to the Eighth Circuit Court of
Appeals.

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DATED this 25th day of June, 2012.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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