Behrens v. Chase Home Finance

Filing 17

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Proceed In Forma Pauperis (filing no. 2 ) is granted. Plaintiff shall pay an initial partial filing fee of $18.73 by April 25, 2013, unless an enlargement of time is granted in resp onse 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 Clerk of the court is directed to set a pro se case management deadline in this case using the following text: April 25, 2013: initial partial filing fee payment due. Plaintiff's Motion for Clerk's Entry of Default (f iling no. 9 ) is denied without prejudice to reassertion. The court has carefully reviewed the record, and taken judicial notice of the numerous cases Plaintiff has filed in this court, and finds that this matter will not proceed until Plaintiff pays the initial partial filing fee. Ordered by Senior Judge Richard G. Kopf. (Copy mailed as directed and to pro se party) (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRYAN BEHRENS,
Plaintiff,
v.
CHASE HOME FINANCE,
Defendant.

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8:13CV17

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Motion for Leave to Proceed in
Forma Pauperis (“IFP”) and Motion for Clerk’s Entry of Default. (Filing Nos. 2 and
9.) The court has received a certified copy of Plaintiff’s trust account information.
(Filing No. 16.) 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 at 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 $18.73,
based on average monthly deposits of $93.66. Plaintiff must pay this initial partial
filing fee by April 25, 2013. 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.
is granted.

Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (filing no. 2)

2.
Plaintiff shall pay an initial partial filing fee of $18.73 by April 25, 2013,
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.

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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: April 25, 2013: 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’s Motion for Clerk’s Entry of Default (filing no. 9) is denied
without prejudice to reassertion. The court has carefully reviewed the record, and
taken judicial notice of the numerous cases Plaintiff has filed in this court, and finds
that this matter will not proceed until Plaintiff pays the initial partial filing fee.
8.
Plaintiff shall review the “Notice Regarding Summons Forms” attached
to this Order.
DATED this 25th day of March, 2013.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*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.