Davlin v. Miller et al

Filing 8

MEMORANDUM AND ORDER granting the Plaintiff's 5 Motion for Leave to Proceed in forma pauperis. Plaintiff Clifford J. Davlin shall pay an initial partial filing fee of $17.18 by January 9, 2012, unless an enlargement of time is granted in response to a written motion. The clerk of the court is directed to send a copy of this order to the appropriate official at plaintiffs institution. Pro Se Case Management Deadline set for 1/9/2012: initial partial filing fee payment due. Plaintiff shall review the "Notice Regarding Summons Forms" attached to this Order. Ordered by Senior Judge Lyle E. Strom. (Copies mailed to pro se party and as directed)(MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
CLIFFORD J. DAVLIN,

)
)
Plaintiff,
)
)
v.
)
)
TIM MILLER, Unit Manager,
)
Housing Unit # 3, Nebraska
)
State Penitentiary; and
)
O. PEREZ, Case Worker,
)
Housing Unit # 3, Nebraska
)
State Penitentiary, and in
)
their individual and official )
capacities,
)
)
Defendants.
)
______________________________)

8:11CV396

MEMORANDUM AND ORDER

This matter is before the Court on plaintiff’s Motion
for Leave to Proceed In Forma Pauperis (“IFP”)(Filing No. 5).
The Court has received a certified copy of plaintiff’s trust
account information (Filing No. 7).

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 $17.18, based on an average monthly account balance
of $85.89.

Plaintiff must pay this initial partial filing fee by

January 9, 2012.

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.

-2-

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
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. 5) is granted.
2.

Plaintiff shall pay an initial partial filing fee

of $17.18 by January 9, 2012, 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.

-3-

4.

The clerk of the court is directed to send a copy

of this order to the appropriate official at plaintiff’s
institution.
5.

The clerk of the court is directed to set a pro se

case management deadline in this case using the following text:
January 9, 2012: 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 9th day of December, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

-4-

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.

-5-