Chapman v. Sosa-Gayton et al

Filing 8

MEMORANDUM AND ORDER granting 7 Motion for Leave to Proceed in forma pauperis. Plaintiff Billie Joe Chapman shall pay an initial partial filing fee of $5.82 by within 30 days, unless an enlargement of time is granted in response to a writte n motion. The clerks office is directed to send a copy ofthis Memorandum and Order to the appropriate financial officer at plaintiff's institution. Pro Se Case Management Deadline set for 9/5/2014: initial partial filing fee payment due. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party and to financial officer )(GJG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BILLIE JOE CHAPMAN,

)
)
Plaintiff,
)
)
v.
)
)
YVONNE D. SOSA-GAYTON, TIM
)
BURNS, DOUGLAS COUNTY PUBLIC )
DEFENDERS OFFICE, and JUDGE
)
CONIGLIA,
)
)
Defendants.
)
______________________________)

4:14CV3141

MEMORANDUM AND ORDER

This matter is before the Court on plaintiff’s Motion
for Leave to Proceed in Forma Pauperis (“IFP”) (Filing No. 7).
The Court has received a certified copy of plaintiff’s trust
account information (Filing No. 5).

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 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 $5.82, based on average monthly deposits in the
amount of $29.10.
Filing No. 5.)1

(See prisoner trust account statement at

Plaintiff must pay this initial partial filing

fee within 30 days from the date of this Memorandum and Order.
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.”

1

28

Plaintiff attached to his Motion for Leave to Proceed in
Forma Pauperis a document entitled “Certification of Offender
Account and Assets.” (Filing No. 7 at CM/ECF p. 3.) This
document is purportedly signed by an authorized officer at the
Newton Correctional Facility, his place of incarceration.
According to this document, “the average of the monthly deposits
to [plaintiff’s] account was $-27.96.” (Id. (emphasis added).)
The undersigned judge fails to understand how the amount of
deposits into an account could be for a negative amount. Thus,
for the purposes of determining plaintiff’s initial partial
filing fee, the Court will rely solely on the prisoner account
statement that was submitted directly by Newton Correctional
Facility (Filing No. 5).
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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’s office 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 ORDERED:
1.

Plaintiff’s Motion for Leave to Proceed IFP

(Filing No. 7) is granted.

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2.

Plaintiff shall pay an initial partial filing fee

of $5.82 within 30 days from the date of this Memorandum and
Order, 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’s office is directed to send a copy of

this Memorandum and Order to the appropriate financial officer at
plaintiff’s institution.
5.

The clerk’s office is directed to set a pro se

case management deadline in this case using the following text:
September 5, 2014:
6.

initial partial filing fee payment due.

Plaintiff shall keep the Court informed of his

current address at all times, and all parties are bound by the

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Federal Rules of Civil Procedure and by the Court’s Local Rules
while this case is pending.
DATED this 4th day of August, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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