Cavanaugh v. Nebraska Department of Corrections

Filing 19

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Proceed in Forma Pauperis on Appeal (Filing No. 16 ) is granted. Plaintiff shall pay an initial partial filing fee of $8.73 by December 15, 2014, unless an enlargement of time is g ranted 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 above, and shall forw ard 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 and to the Eighth Circuit Court of Appeals. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party and to Plaintiff's institution)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEPHEN CAVANAUGH,
Plaintiff,
v.
MICHAEL L. KENNEY, FRANK
HOPKINS, DIANE SABATKA-RHINE,
and MR. DORTON,
Defendants.

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4:14CV3063

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Notice of Appeal (Filing No. 15) and
Motion for Leave to Proceed in Forma Pauperis on Appeal (Filing No. 16).
Pursuant to the Prison Litigation Reform Act (“PLRA”), a prisoner plaintiff is required
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).
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 notice of appeal.
Accordingly, based on the records before the court, the initial partial filing fee is $8.73,
based on an average monthly balance of $43.66. (Filing No. 17.)

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. According ly,

IT IS ORDERED:
1.

Plaintiff’s Motion for Leave to Proceed in Forma Pauperis on Appeal (Filing
No. 16) is granted.

2.

Plaintiff shall pay an initial partial filing fee of $8.73 by December 15, 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.

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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 14th day of November, 2014.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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