Campbell v. State of Nebraska et al

Filing 7

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 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. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(copy mailed to institution)(ADB, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HERBERT L. CAMPBELL,
Plaintiff,
v.
STATE OF NEBRASKA, et al.,
Defendants.

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CASE NO. 4:12CV3193

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. 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).
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 nearly zero, 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; and

4.

Plaintiff shall review the “Notice Regarding Summons Forms” attached to this
Order.

DATED this 19th day of September, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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*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.
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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.

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