Rose v. Flairity et al

Filing 13

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Plaintiff's Motion for Leave to Proceed IFP (filing 1 ) is granted. Plaintiff shall pay an initial partial filing fee of $23.00 by May 25, 2012, unless an enlargement of time is gran ted in response to a written motion. If the initial partial filing fee is not received by the specified deadline, this case will be dismissed. 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. The Clerk of the Court is directed to send a copy of this order to the appropriate official at Plaintiff' s institution. The Clerk of the Court is directed to set a pro se case management deadline in this case using the following text: May 25, 2012: initial partial filing fee payment due. 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. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party and as directed)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DUDIE JAMES ROSE,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL FLAIRITY, DICK
)
FINK, TODD EDWARDS,
)
NEBRASKA BOARD OF
)
REGENTS, and ARCH BOARD OF )
DIRECTORS,
)
)
Defendants.

8:12CV119

MEMORANDUM
AND ORDER

This matter is before the Court on Plaintiff’s Motion for Leave to Proceed
in Forma Pauperis (“IFP”). (Filing 1.) The Court has received a certified copy of
Plaintiff’s trust account information. (Filing 12.) Plaintiff 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), 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 6 months preceding
the filing of the complaint. Accordingly, the Court finds that the initial partial
filing fee is $23.00, based on an average monthly account balance of $116.00.
Plaintiff must pay this initial partial filing fee by May 25, 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.” 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 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 at 529-30; Jackson,
173 F. Supp. 2d at 951.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Motion for Leave to Proceed IFP (filing 1) is granted.

2.

Plaintiff shall pay an initial partial filing fee of $23.00 by May 25,
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.

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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.

5.

The Clerk of the Court is directed to set a pro se case management
deadline in this case using the following text: May 25, 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.

DATED this 25th day of April, 2012.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

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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
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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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