Gonzales v. Sergeant Tallant et al
MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis. The filing fee shall be collected and remitted, as funds exist, in the manner set forth in 28 U.S.C. § 1915(b)(2). Until the full filing fee of $350.00 is paid, the prisoner shall be obligated to pay, and the agency having custody of the prisoner shall forward to the Clerk of the court, 20 percent of the preceding month's income in such months as the account exceeds $10.00. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and plaintiff's institution)(ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CORPORAL NIXON, and FRED
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 is permitted to proceed
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).
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. Plaintiff’s average monthly
account balance is nearly zero, and the court cannot assess an initial partial filing fee.
(Filing No. 3) However, as set forth in 28 U.S.C. § 1915(b)(4), “[i]n no event shall
a prisoner be prohibited from bringing a civil action . . . for the reason that the
prisoner has no assets and no means by which to pay the initial partial filing fee.”
When the prisoner is unable to pay the initial partial filing fee due to a lack of funds,
the requirement that the initial partial filing fee will be paid at the outset of the case
is suspended. See Jackson, 173 F. Supp. 2d at 957 n. 9. Instead, “the whole of the .
. . filing fees are to be collected and paid by the installment method contained in §
1915(b)(2).” Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997). This matter
will therefore proceed without payment of the initial partial filing fee as set forth
IT IS THEREFORE ORDERED that:
Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (Filing No.
2) is granted. The filing fee shall be collected and remitted, as funds exist, in the
manner set forth in 28 U.S.C. § 1915(b)(2). Until the full filing fee of $350.00 is paid,
the prisoner shall be obligated to pay, and the agency having custody of the prisoner
shall forward to the Clerk of the court, 20 percent of the preceding month’s income
in such months as the account exceeds $10.00.
The Clerk of the court shall serve a copy of this order on the appropriate
financial officer for Plaintiff’s current institution.
Plaintiff shall continue to keep the court informed of his current address
at all times while this case is pending, as failure to do so may result in dismissal of this
Plaintiff shall review the “Notice Regarding Summons Forms” attached
to this Order.
DATED this 13 th day of September, 2012.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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 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 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 Court arranges for
service of process as follows:
The Clerk of 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.
The plaintiff shall thereafter complete the summons form(s) and Form
285, because without those forms, service of process cannot occur.
The plaintiff shall then mail the completed summons form(s) and Form
285 to the Clerk of Court. Upon receipt of the completed forms from the plaintiff, the
Clerk of 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
Because the plaintiff is proceeding in forma pauperis, the plaintiff is not
responsible for copying the complaint or arranging for service of process.
THEREFORE, ALL PLAINTIFFS ARE REQUESTED NOT TO SEND
SUMMONS FORMS TO THE COURT UNLESS THE CLERK OF COURT
HAS FIRST SENT THE FORMS TO THE PLAINTIFF AFTER “INITIAL
REVIEW” HAS BEEN COMPLETED, AS STATED ABOVE.
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