Securities and Exchange Commission v Behrens, et al

Filing 429

MEMORANDUM AND ORDER - Behrens' request for leave to appeal in forma pauperis (filing 422 ) is granted. Behrens shall pay an initial partial filing fee of $18.97 by November 4, 2014, unless an enlargement of time is granted in response to a written motion. The Clerk of the Court is directed to set a case management deadline of November 4, 2014. After payment of the initial partial filing fee, Behrens' institution shall collect the additional monthly payments in the mann er 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 Behrens' institution and to the Eighth Circuit Court of Appeals. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party and as directed)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SECURITIES AND EXCHANGE
COMMISSION,
8:08-CV-13
Plaintiff,
vs.

MEMORANDUM AND ORDER

BRYAN S. BEHRENS, et al.,
Defendants.
This matter is before the Court on a notice of appeal from pro se
defendant Bryan S. Behrens that the Court understands to include a request
for leave to proceed in forma pauperis on appeal (filing 422). Pursuant to 28
U.S.C. § 1915(a)(1) and (2), leave to proceed in forma pauperis on appeal will
be granted.
Because Behrens has filed a notice of appeal and wishes to proceed in
forma pauperis, he is required, pursuant to the Prison Litigation Reform Act,
to pay the full amount of the $505.00 appellate filing fee by making monthly
payments to the Court. 28 U.S.C. § 1915(b). The Act "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 (8th Cir. 1997). The
appellate filing fee is assessed when the Court receives the prisoner's notice
of appeal. Henderson v. Norris, 129 F.3d 481, 485 (8th Cir. 1997).
Pursuant to § 1915(b)(1), a prisoner must pay an initial partial filing
fee in the amount of 20 percent of the greater of the prisoner's average
monthly account balance or average monthly deposits for the 6 months
preceding the filing of the appeal. Accordingly, based on the records before
the Court, the initial partial filing fee is $18.97, based on average monthly
deposits of $94.83. See filing 428. In addition to the initial partial filing fee, a
prisoner must "make monthly payments of 20 percent of the preceding
month's income credited to the prisoner's account." § 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.
§ 1915(b)(2). Therefore, after payment in full of the initial partial filing fee,
the remaining installments shall be collected pursuant to this procedure.
Behrens is reminded that it is his responsibility to indicate to prison
officials that a payment should be credited to a new initial filing fee—thereby
authorizing the prison to deduct funds from the prisoner's trust account to
continue paying that obligation as required by § 1915(b)(2). Cf. Henderson,
129 F.3d at 484 (distinguishing between "initial payment" and "later
installment payments" and stating that "the latter [are] to be calculated and
remitted by prison officials pursuant to § 1915(b)(2) . . . .") When a prisoner
has multiple obligations, it is not the responsibility of prison officials to
decide which should be paid first. And unless the attachment to a payment
indicates that it should be credited to an appellate filing fee, it is the Court's
practice to apply a payment associated with a case to an existing obligation,
of which Behrens has several.
In short: to make sure that his initial partial appellate filing fee is paid,
Behrens should clearly ask the appropriate official at his institution to
indicate, on his payment, that the payment is intended to satisfy his
appellate filing fee for the above-captioned case.
IT IS ORDERED:
1.

Behrens' request for leave to appeal in forma pauperis
(filing 422) is granted.

2.

Behrens shall pay an initial partial filing fee of $18.97 by
November 4, 2014, unless an enlargement of time is
granted in response to a written motion.

3.

The Clerk of the Court is directed to set a case
management deadline of November 4, 2014.

4.

After payment of the initial partial filing fee, Behrens'
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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5.

The Clerk of the Court is directed to send a copy of this
order to the appropriate official at Behrens' institution and
to the Eighth Circuit Court of Appeals.

Dated this 2nd day of October, 2014.
BY THE COURT:

John M. Gerrard
United States District Judge

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