James v. United States of America

Filing 9

MEMORANDUM AND ORDER - Kenyatta T. James' Motion for Leave to Proceed In Forma Pauperis 6 is granted. James shall pay an initial partial filing fee of $215.45 by August 31, 2011, 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 will be dismissed. The clerk of the court is directed to send a copy of this order to the appropriate official at James' institution. The c lerk of the court is directed to set a pro se case management deadline in this case using the following text: August 31, 2011: initial partial filing fee payment due. Ordered by Senior Judge Warren K. Urbom. (Copy mailed/e-mailed to pro se party and to Financial Administrator) (KBJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KENYATTA T. JAMES,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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8:11CV185

MEMORANDUM
AND ORDER

This matter is before the court on Kenyatta T. James’ (“James”) Motion for
Leave to Proceed In Forma Pauperis (“IFP”). (Filing No. 6.) After review of the
certified copy of James’ trust account information (filing No. 8.), he is permitted to
proceed IFP.
Pursuant to the Prison Litigation Reform Act, a prisoner plaintiff is required
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), James must pay an initial partial filing fee
in the amount of 20 percent of the greater of his average monthly account balance or
average monthly deposits for the six months preceding the filing of the complaint.
Accordingly, the court finds that the initial partial filing fee is $215.45, based on an
average monthly account balance of $1077.29. James must pay this initial partial
filing fee by August 31, 2011. If the court does not receive payment by this deadline,
this matter will be dismissed. James may request an extension of time if needed.

In addition to the initial partial filing fee, James 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.
The clerk of the court shall send a copy of this Memorandum and Order to the
appropriate financial official at James’ institution. James will remain responsible for
the entire filing fee, as long as he is a prisoner, even if the case is dismissed at some
later time. See In re Tyler, 110 F.3d at 529-30; Jackson, 173 F. Supp. 2d at 951.
IT IS THEREFORE ORDERED that:
1.
Kenyatta T. James’ Motion for Leave to Proceed In Forma Pauperis
(filing no. 6) is granted.
2.

James shall pay an initial partial filing fee of $215.45 by August 31,

2011, 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 will be
dismissed.

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3.
After payment of the initial partial filing fee, James’ 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.
4.
The clerk of the court is directed to send a copy of this order to the
appropriate official at James’ institution.
5.
The clerk of the court is directed to set a pro se case management
deadline in this case using the following text: August 31, 2011: initial partial filing
fee payment due.
6.
Kenyatta T. James shall keep the court informed of his current address
at all times, and all parties are bound by the Federal Rules of Civil Procedure and by
the court’s Local Rules while this case is pending.
7.
Kenyatta T. James shall review the “Notice Regarding Summons Forms”
attached to this Order.
Dated August 2, 2011.
BY THE COURT
s/ Warren K. Urbom
United States Senior District Judge

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NOTICE 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
case shall not provide the court with summons forms (or Form 285) for service of process
on the defendant(s) until notified to do so by the Clerk of the court.
The Prison Litigation Reform Act (“PLRA”) requires the court to screen complaints
brought 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
“initial review” shortly after the Clerk of the court receives the initial partial filing fee from
the plaintiff. After the initial partial filing fee has been paid, and initial review has been
completed, the Clerk of the court arranges for service of process as follows:
1.
The 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
case, together with Form 285.
2.
The plaintiff shall thereafter complete the summons form(s) and Form 285,
because without those forms, service of process cannot occur.
3.
The plaintiff shall then mail the completed summons form(s) and Form 285 to
the Clerk of the court. Upon receipt of the completed forms from the plaintiff, the Clerk of
the court will sign the summons form(s) to be sent by the Clerk, together with a copy of the
complaint for each defendant, to the U.S. Marshal for service on the defendant(s).
4.
Because the plaintiff is proceeding in forma pauperis, the plaintiff is not
responsible for copying the complaint or arranging for service of process.

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