King v. Houston et al
Filing
21
MEMORANDUM AND ORDER - Plaintiff is permitted leave to appeal in forma pauperis. Plaintiff shall pay an initial partial filing fee of $0.93 by January 2, 2014, unless an enlargement of time is granted in response to a written motion. After p ayment 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 cle rk 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 Senior Judge Lyle E. Strom. (Copy mailed to pro se party and as directed)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DONNELL KING,
)
)
Plaintiff,
)
)
v.
)
)
ROBERT P. HOUSTON, Director, )
DIAN SABATKA-RINE, Warden,
)
JOANNE HILGERT, Tek Ind.
)
Supervisor, and C.S.I.
)
DIRECTOR,
)
)
Defendants.
)
______________________________)
4:13CV3061
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s Notice
of Appeal, filed on November 18, 2013 (Filing No. 17).
Plaintiff
did not submit the appellate filing fee or a motion for leave to
proceed in forma pauperis (“IFP”).
Plaintiff is a prisoner and
has previously been granted leave to proceed IFP in this matter
(Filing No. 10).
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 . . . (A) 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 and
states 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
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complaint.
Accordingly, based on the records before the Court,
the initial partial filing fee is $0.93, based on average monthly
balance of $4.64 (Filing No. 20).
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.”
U.S.C. § 1915(b)(2).
28
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 ORDERED:
1.
Plaintiff is permitted leave to appeal in forma
pauperis.
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2.
Plaintiff shall pay an initial partial filing fee
of $0.93 by January 2, 2014, 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 2nd day of December, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
*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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