Winters v. Baker et al
Filing
8
MEMORANDUM AND ORDER - Plaintiff's 2 MOTION for Leave to Proceed in forma pauperis is granted. The filing fee shall be collected and remitted, as funds exist, in the manner set forth in 28.S.C. 1915(b)(2). Until the full filing fee of 036;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. Plaintifff shall review the "Notice Regarding Summons Forms" attached to this Order. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party and to Plaintiff's institution)(MKR)
Winters v. Baker et al
Doc. 8
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BEAUFORD WILMER WINTERS,
Plaintiff,
v.
BAKER, Sgt. (of the Tecumseh
State Correctional
Institution), BALLUE, Cpl,
SANFORD, Cpl., and HERREA, &
Cpl. (of the Tecumseh Stat
Correctional Institution),
Defendants.
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4:13CV3135
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. 6).
Plaintiff will be 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.
1915(b).
28 U.S.C. §
“[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).
Dockets.Justia.com
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 $0.02, and the Court
cannot assess an initial partial filing fee.
(See Filing No. 6.)
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.
Jackson, 173 F. Supp. 2d at 957 n.9.
See
Instead, “the whole of the
. . . filing fees are to be collected and paid by the installment
method contained in § 1915(b)(2).”
481, 484 (8th Cir. 1997).
Henderson v. Norris, 129 F.3d
This matter will therefore proceed
without payment of the initial partial filing fee as set forth
below.
IT IS ORDERED:
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
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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.
4.
Plaintiff shall review the “Notice Regarding
Summons Forms” attached to this Order.
DATED this 12th day of August, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District 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 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:
1.
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.
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 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).
4.
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 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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