Sanders v. Lutter et al

Filing 7

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Proceed In Forma Pauperis (Filing No. 2 ) is granted. Plaintiff shall pay an initial partial filing fee of $0.30 by December 9, 2013, unless an enlargement of time is granted in re sponse 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 mon thly 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: December 9, 2013: initial partial filing fee payment due. Ordered by Chief Judge Laurie Smith Camp. (Copies mailed as directed and to pro se party)(AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EMMANUEL SANDERS,
Plaintiff,
v.
RICHARD LUTTER, et al.,
Defendants.

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CASE NO. 4:13CV3167

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).
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 $0.30, based on average
monthly account balance of $1.50. Plaintiff must pay this initial partial filing fee by
December 9, 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 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.
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:
1.

Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (Filing No. 2) is
granted;

2.

Plaintiff shall pay an initial partial filing fee of $0.30 by December 9, 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;

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;

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5.

The Clerk of the court is directed to set a pro se case management deadline
in this case using the following text: December 9, 2013: initial partial filing
fee payment due;

6.

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; and

7.

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

DATED this 12th day of November, 2013.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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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.

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