Capek v. Grove et al

Filing 6

MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis. 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 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. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party) (copy mailed to financial officer at institution) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRANDAN LEE CAPEK,
Plaintiff,
v.
SAMUEL GROVE, and STATE OF
NEBRASKA,
Defendants.

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4:15CV3062

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 statement. (Filing No. 3.) Plaintiff is permitted to proceed IFP.
The Prison Litigation Reform Act (“PLRA”) requires prisoner plaintiffs 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. Plaintiff’s account balance is $0.00, and the court cannot assess an initial
partial filing fee. 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. See Jackson, 173 F. Supp. 2d at 957 n. 9. Instead, “the whole of

the . . . filing fees are to be collected and paid by the installment method contained in
§ 1915(b)(2).” Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997). This matter
will therefore proceed without payment of the initial partial filing fee as set forth
below.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Motion for Leave to Proceed IFP (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 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.
The next step in Plaintiff’s case will be for the court to conduct an initial
review of Plaintiff’s claims to determine whether summary dismissal is appropriate
under 28 U.S.C. § 1915(e)(2). The court will conduct this initial review in its normal
course of business.
DATED this 15th day of June, 2015.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
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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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