Cosey v. Adams County Court et al

Filing 8

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: 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. The clerk of the court shall serve a copy of this order on the appropriate financial officer for Plaintiff's current institution. 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. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and as directed)(TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EUGENE COSEY,
Plaintiff,

4:17CV3121

vs.
ADAMS COUNTY COURT, ADAMS
COUNTY SHERIFF DEPARTMENT,
CLAY COUNTY COURT, CLAY
COUNTY SHERIFF DEPARTMENT,
and DEREK TERWEY,

MEMORANDUM
AND ORDER

Defendants.
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. 7.) 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 29th day of September, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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