McNeil et al v. Omaha, City of et al

Filing 56

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Appeal In Forma Pauperis (filing no. 55 ) is granted. Plaintiff shall pay an initial partial filing fee of $11.35 by December 4, 2008, unless an enlargement of time is granted in resp onse to a written motion. If the initial partial filing fee is not received by the specified deadline, this case is subject to dismissal. After payment of the initial partial filing fee, Plaintiffs institution shall collect the additional monthly pa yments in the manner set forth in 28 U.S.C. § 1915(b)(2), quoted above, and shall forward 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 the Eighth Circuit Court of Appeals. Ordered by Judge Richard G. Kopf. (Copies mailed as directed)(GJG, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA JAMAAL A. MCNEIL, Plaintiff, v. OMAHA, CITY OF, OMAHA POLICE DEPARTMENT, T. RINGHOFF, #1554 (Police Officer), and J. WARNOCK, #1568 (Police Officer), Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) 8:07CV143

MEMORANDUM AND ORDER

This matter is before the court on Plaintiff's Motion for Leave to Appeal In Forma Pauperis. (Filing No. 55.) The court has received a certified copy of Plaintiff's trust account information. (Filing No. 7.) Plaintiff is permitted to proceed IFP on his appeal. Pursuant to the Prison Litigation Reform Act ("PLRA"), a prisoner Plaintiff is required to pay the full amount of the court's $455.00 appellate filing fee by making monthly payments to the court, even if the prisoner is proceeding IFP. 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 (D. Neb. 2001) (citing In re Tyler, 110 F.3d 528, 529 (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

complaint. Accordingly, based on the records before the court, the initial partial filing fee is $11.35, based on average monthly balance of $56.74. 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 Appeal In Forma Pauperis (filing no. 55) is granted. 2. Plaintiff shall pay an initial partial filing fee of $11.35 by December 4, 2008, 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 is subject to dismissal. 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. § 2

1915(b)(2), quoted above, and shall forward those installments to the court. 4. The Clerk of the court is directed to send a copy of this order to the appropriate official at Plaintiff's institution and the Eighth Circuit Court of Appeals. November 4, 2008. BY THE COURT: s/Richard G. Kopf United States District Judge

3