Emilio v. Nebraska Department of Correctional Services et al
MEMORANDUM AND ORDER granting 4 Motion for Leave to Proceed in forma pauperis. Plaintiff Pavon Emilio shall pay an initial partial filing fee of $6.00 by 5/16/2013, unless an enlargement of time is granted in response to a written motion . Pro Se Case Management Deadline set for 5/16/2013: initial partial filing fee payment due. The Clerk of the court is directed to send a copy of this order to the appropriate official at Plaintiff's institution. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and to institution)(GJG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NEBRASKA DEPARTMENT OF
ROBERT P. HOUSTON, Director,
and FRED BRITTEN, Warden,
This matter is before the court on Plaintiff’s Motion for Leave to Proceed in
Forma Pauperis (“IFP”). (Filing No. 4.) The court has received a certified copy of
Plaintiff’s trust account information. (Filing No. 6.) Plaintiff is permitted to proceed
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 at 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. Accordingly, the court finds that the initial partial filing fee is $6.00, based
on average monthly deposits of $30.00. Plaintiff must pay this initial partial filing fee
by May 16, 2013. If the court does not receive payment by this deadline, this matter
will be dismissed. Plaintiff may request an extension of time if needed.
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
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.
The Clerk of the court shall send a copy of this Memorandum and Order to the
appropriate financial official at Plaintiff’s institution. Plaintiff will remain responsible
for the entire filing fee, as long as he is a prisoner, even if the case is dismissed at
some later time. See In re Tyler, 110 F.3d at 529-30; Jackson, 173 F. Supp. 2d at 951.
IT IS THEREFORE ORDERED that:
Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (filing no. 2)
Plaintiff shall pay an initial partial filing fee of $6.00 by May 16, 2013,
unless an enlargement of time is granted in response to a written motion. If the initial
partial filing fee is not received by the specified deadline, this case will be dismissed.
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.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: May 16, 2013: initial partial filing fee
Plaintiff shall keep the court informed of his current address at all times,
and all parties are bound by the Federal Rules of Civil Procedure and by the court’s
Local Rules while this case is pending.
Plaintiff shall review the “Notice Regarding Summons Forms” attached
to this Order.
DATED this 16th day of April, 2013.
BY THE COURT:
Richard G. Kopf
Senior 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
Because the plaintiff is proceeding in forma pauperis, the plaintiff is not
responsible for copying the complaint or arranging for service of process.
*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
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