Cavanaugh v. Hall County Department of Corrections

Filing 83

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Plaintiff's Motion for Leave to Proceed in Forma Pauperis on Appeal (Filing No. 80 ) is granted. Plaintiff shall pay an initial partial filing fee of $9.52 within 30 days unless an enla rgement of time is granted in response to a written motion. 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 ab ove, and shall forward those installments to the court. Plaintiff's request that the court order the prison to pay the fees out of Plaintiff's "Inmate Release Account" (Filing No. 82 ) is denied. 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. Ordered by Senior Judge Joseph F. Bataillon. (Copies mailed as directed and to pro se party)(TCL )

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA STEPHEN CAVANAUGH, Plaintiff, v. HALL COUNTY DEPARTMENT OF CORRECTIONS, RUIZ, VAN, SPAR, CASTLEBERRY, CONNELLY, and REI, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) 4:14CV3062 MEMORANDUM AND ORDER This matter is before the court on Plaintiff’s Notice of Appeal (Filing No. 79) and Motion for Leave to Proceed in Forma Pauperis on Appeal (Filing No. 80). The Prison Litigation Reform Act (“PLRA”) requires prisoner plaintiffs to pay the full amount of the court’s $505.00 appellate filing fee by making monthly payments to the court, even if the prisoner is proceeding in forma pauperis. 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, 952 (D. Neb. 2001) (citing In re Tyler, 110 F.3d 528, 529-30 (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). 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 notice of appeal. See 28 U.S.C. § 1915(b)(1). Accordingly, based on the records before the court, the initial partial filing fee is $9.52, based on an average monthly deposits in the amount of $47.62. (See Filing No. 81.) 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. IT IS THEREFORE ORDERED that: 1. Plaintiff’s Motion for Leave to Proceed in Forma Pauperis on Appeal (Filing No. 80) is granted. 2. Plaintiff shall pay an initial partial filing fee of $9.52 within 30 days 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. 2 Plaintiff’s request that the court order the prison to pay the fees out of Plaintiff’s “Inmate Release Account” (Filing No. 82) is denied. 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 30th day of October, 2015. BY THE COURT: s/ Joseph F. Bataillon Senior United States District Judge *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. 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?