Herzog v. Madison County Jail et al

Filing 10

MEMORANDUM AND ORDER that Plaintiffs Motion for Leave to Proceed In Forma Pauperis (filing no. 3) is granted. This Memorandum and Order supersedes the courts October 14, 2010, Memorandum and Order 7 ; Plaintiff shall pay an initial partial filing f ee of $2.50 by November 22, 2010; After payment of the initial partial filing fee, Plaintiffs institution shall collect the additional monthly payments in the manner set forth in 28 U.S.C. § 1915(b)(2) and shall forward those installments t o the court; The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: November 22, 2010: initial partial filing fee payment due.Ordered by Judge Richard G. Kopf. (Copy mailed to pro se party)(Copy mailed to financial institution)(ADB, )

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- P R S E Herzog v. Madison County Jail et al Do c. 10 IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA A N D R E W A. HERZOG, Plaintiff, v. M A D IS O N COUNTY JAIL, and M A D IS O N COUNTY ATTORNEY'S O F F IC E , D e f e n d a n ts . ) ) ) ) ) ) ) ) ) ) ) 8 :1 0 C V 3 8 2 M EM ORANDUM AND ORDER T h is matter is before the court on its own motion. On October 14, 2010, the court g ra n te d Plaintiff's Motion for Leave to Proceed In Forma Pauperis ("IFP"). (Filing No. 7.) H o w e v e r, upon further review, it appears that Plaintiff is a prisoner and is not entitled to p roc ee d IFP in this matter without payment of an initial partial filing fee. Thus, the court re q u e ste d , and has received, a certified copy of Plaintiff's trust account information. (Filing N o . 9.) Plaintiff is still permitted to proceed IFP, but must pay the filing fee as set forth b e lo w . P u r s u a n t to the Prison Litigation Reform Act, a prisoner plaintiff is required to pay th e full amount of the court's $350.00 filing fee by making monthly payments to the court, e v e n if the prisoner is proceeding IFP. 28 U.S.C. 1915(b). "[T]he PLRA makes prisoners re sp o n s ib le for their filing fees the moment the prisoner brings a civil action or files an a p p e al." In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997); Jackson v. N.P. Dodge Realty C o ., 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 t h e amount of 20 percent of the greater of Plaintiff's average monthly account balance or a v e ra g e monthly deposits for the six months preceding the filing of the complaint. A c c o rd in g ly, the court finds that the initial partial filing fee is $2.50, based on an average m o n th ly account balance of $12.50. Plaintiff must pay this initial partial filing fee by N o v e m b e r 22, 2010. If the court does not receive payment by this deadline, this matter will Dockets.Justia.com b e dismissed. Plaintiff may request an extension of time if needed. In addition to the initial partial filing fee, Plaintiff must "make monthly payments of 2 0 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 a d d itio n a l monthly payments and forward them to the Court as follows: A f ter payment of the initial partial filing fee, the prisoner shall be required to m a k e monthly payments of 20 percent of the preceding month's income c re d ite d to the prisoner's account. The agency having custody of the prisoner s h a ll forward payments from the prisoner's account to the clerk of the court e a ch time the amount in the account exceeds $10 until the filing fees are paid. 2 8 U.S.C. 1915(b)(2). Therefore, after payment in full of the initial partial filing fee, the re m a in in g installments shall be collected pursuant to this procedure. T h e Clerk of the court shall send a copy of this Memorandum and Order to the a p p ro p ria te financial official at Plaintiff's institution. Plaintiff will remain responsible for th e entire filing fee, as long as he is a prisoner, even if the case is dismissed at some later tim e . See In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997); Jackson v. N.P. Dodge Realty C o ., 173 F. Supp. 2d 951 (D. Neb. 2001). IT IS THEREFORE ORDERED that: 1. g r a n te d . P la in tif f 's Motion for Leave to Proceed In Forma Pauperis (filing no. 3) is This Memorandum and Order supersedes the court's October 14, 2010, M e m o ra n d u m and Order. 2. P la in tif f shall pay an initial partial filing fee of $2.50 by November 22, 2010, u n le ss an enlargement of time is granted in response to a written motion. If the initial partial f ilin g fee is not received by the specified deadline, this case will be dismissed. 3. A f te r payment of the initial partial filing fee, Plaintiff's institution shall collect 2 th e additional monthly payments in the manner set forth in 28 U.S.C. 1915(b)(2), quoted a b o v e , and shall forward those installments to the court. 4. T h e Clerk of the court is directed to send a copy of this order to the appropriate o f f ic ia l at Plaintiff's institution. 5. T h e Clerk of the court is directed to set a pro se case management deadline in th is case using the following text: November 22, 2010: initial partial filing fee payment due. 6. P la in tif f shall keep the court informed of his current address at all times, and a ll parties are bound by the Federal Rules of Civil Procedure and by the court's Local Rules w h ile this case is pending. 7. O rde r. D A T E D this 21st day of October, 2010. B Y THE COURT: R ich a r d G. Kopf U n ite d States District Judge P lain tiff shall review the "Notice Regarding Summons Forms" attached to this *This opinion may contain hyperlinks to other documents or Web sites. The U.S. D is tric t Court for the District of Nebraska does not endorse, recommend, approve, or g u a r a n te e any third parties or the services or products they provide on their Web sites. L ik e w is e , the court has no agreements with any of these third parties or their Web sites. The c o u r t accepts no responsibility for the availability or functionality of any hyperlink. Thus, th e fact that a hyperlink ceases to work or directs the user to some other site does not affect th e opinion of the court. 3 N O T I C E REGARDING SUMMONS FORMS FOR PRO SE PRISONERS PROCEEDING IN FORMA PAUPERIS A prisoner who is proceeding pro se and in forma pauperis as the plaintiff in a civil c a se shall not provide the court with summons forms (or Form 285) for service of process o n the defendant(s) until notified to do so by the Clerk of the court. T h e Prison Litigation Reform Act ("PLRA") requires the court to screen complaints b ro u g h t by prisoners. Therefore, the court conducts "initial review" of a complaint filed by a prisoner before any summons can be served on a defendant. Generally, the court conducts " in itia l review" shortly after the Clerk of the court receives the initial partial filing fee from t h e plaintiff. After the initial partial filing fee has been paid, and initial review has been c o m p l e te d , the Clerk of the court arranges for service of process as follows: 1. T h e Clerk of the court will be directed by a District Judge or Magistrate Judge to send the plaintiff a blank summons form for each defendant named in the caption of the c a se , together with Form 285. 2. T h e plaintiff shall thereafter complete the summons form(s) and Form 285, b ec au se without those forms, service of process cannot occur. 3. T h e plaintiff shall then mail the completed summons form(s) and Form 285 to th e Clerk of the court. Upon receipt of the completed forms from the plaintiff, the Clerk of th e court will sign the summons form(s) to be sent by the Clerk, together with a copy of the co m p lain t for each defendant, to the U.S. Marshal for service on the defendant(s). 4. B e c au s e the plaintiff is proceeding in forma pauperis, the plaintiff is not r e sp o n s ib l e for copying the complaint or arranging for service of process. 4

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