Hillard v. Nebraska Department of Correctional Services Employees et al
Filing
7
MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Proceed In Forma Pauperis 2 is granted. Plaintiff shall pay an initial partial filing fee of $0.04 by July 29, 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 plaintiff's institution. The cle rk of the court is directed to set a pro se case management deadline in this case using the following text: July 29, 2011: initial partial filing fee payment due. Plaintiff shall keep the court informed of his current address at all times while this case is pending. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party and as directed) (KBJ)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT S. HILLARD,
)
)
Plaintiff,
)
)
v.
)
)
NEBRASKA DEPARTMENT OF
)
CORRECTIONAL SERVICES
)
EMPLOYEES, et al.,
)
)
Defendants.
)
______________________________)
8:11CV197
MEMORANDUM AND ORDER
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 information (Filing No. 3).
Plaintiff will be 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.
1915(b).
28 U.S.C. §
“[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.
Accordingly, the Court finds that the initial partial
filing fee is $0.04, based on an average monthly account balance
of $0.20.
Plaintiff must pay this initial partial filing fee by
July 29, 2011.
If the Court does not receive payment by this
deadline, this matter will be dismissed.
Plaintiff may request
an extension of time if needed.
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.”
U.S.C. § 1915(b)(2).
28
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.
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The clerk of the court shall send a copy of this
memorandum and order to the appropriate financial official at
plaintiff’s institution.
Plaintiff 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
528, 529-30 (8th Cir. 1997); Jackson v. N.P. Dodge Realty Co.,
173 F. Supp. 2d 951 (D. Neb. 2001).
IT IS ORDERED:
1.
Plaintiff’s Motion for Leave to Proceed In Forma
Pauperis (Filing No. 2.) is granted.
2.
Plaintiff shall pay an initial partial filing fee
of $0.04 by July 29, 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.
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. § 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.
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5.
The clerk of the court is directed to set a pro se
case management deadline in this case using the following text:
July 29, 2011: initial partial filing fee payment due.
6.
Plaintiff 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.
Plaintiff shall review the “Notice Regarding
Summons Forms” attached to this Order.
DATED this 7th day of July, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
* This opinion may contain hyperlinks to other documents or
Web sites. The U.S. District Court for the District of Nebraska
does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web
sites. Likewise, the Court has no agreements with any of these
third parties or their Web sites. The Court accepts no
responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion
of the Court.
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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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