Sims v. Randall et al

Filing 16

MEMORANDUM AND ORDER granting 14 Motion for Leave to Appeal in forma pauperis. Plaintiff shall pay an initial partial filing fee of $107.71 by October 4, 2012, unless an enlargement of time is granted in response to a written motion. After payment of the initial partial filing fee, Plaintiff's institution shall collect the additional monthly payments in the manner set forth in 28 U.S.C. § 1915(b)(2), quoted above, and shall forward those installments to the court. 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. Ordered by Judge Joseph F. Bataillon. (Copies mailed as directed)(ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL JOSEPH SIMS,
Plaintiff,
v.
GARY B. RANDALL, et al.,
Defendants.

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4:12CV3074

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Motion for Leave to Appeal In
Forma Pauperis. (Filing No. 14.) Plaintiff is a prisoner and has previously been
granted leave to proceed IFP in this matter. (Filing No. 7.)
As set forth in Federal Rule of Appellate Procedure 24(a)(3):
(a) Leave to Proceed in Forma Pauperis ....
(3) Prior Approval. A party who was permitted to proceed
in forma pauperis in the district-court action, or who was determined to
be financially unable to obtain an adequate defense in a criminal case,
may proceed on appeal in forma pauperis without further authorization,
unless the district court – before or after the notice of appeal is filed–
certifies that the appeal is not taken in good faith or finds that the party
is not otherwise entitled to proceed in forma pauperis. In that event, the
district court must state in writing its reasons for the certification or
finding.
The court finds that because Plaintiff proceeded IFP in the district court, he
may now “proceed on appeal in forma pauperis without further authorization.”
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
appeal. Accordingly, based on the records before the court, the initial partial filing
fee is $107.71, based on average monthly balance of $538.56. (Filing No. 15.)
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, after payment in full of the initial partial filing
fee, the remaining installments shall be collected pursuant to this procedure.
IT IS THEREFORE ORDERED that:

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1.
Plaintiff’s Motion for Leave to Appeal In Forma Pauperis (filing no. 14)
is granted.
2.
Plaintiff shall pay an initial partial filing fee of $107.71 by October 4,
2012, unless an enlargement of time is granted in response to a written motion.
3.
After payment of the initial partial filing fee, Plaintiff’s institution shall
collect the additional monthly payments in the manner set forth in 28 U.S.C. §
1915(b)(2), quoted above, and shall forward those installments to the court.
4.
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.
DATED this 5th day of September, 2012.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

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functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
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