Campbell v. Nelson
MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Proceed IFP (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 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. Ordered by Chief Judge Laurie Smith Camp. (Copies mailed as directed and to pro se party)(AOA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HERBERT LEE CAMPBELL,
JODI L. NELSON, JUDGE,
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 copy of Plaintiff’s trust account
information. (Filing No. 3.) 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 $0.03, 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:
Plaintiff’s Motion for Leave to Proceed IFP (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;
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; and
Plaintiff shall review the “Notice Regarding Summons Forms” attached to this
DATED this 2nd day of April, 2012.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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 the 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 the 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 the court arranges for service of process as follows:
The 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
case, together with Form 285.
The plaintiff shall thereafter complete the summons form(s) and Form 285,
because without those forms, service of process cannot occur.
The plaintiff shall then mail the completed summons form(s) and Form 285
to the Clerk of the court. Upon receipt of the completed forms from the plaintiff, the Clerk
of the 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).
Because the plaintiff is proceeding in forma pauperis, the plaintiff is not
responsible for copying the complaint or arranging for service of process.
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