Patmon v. State of Nebraska Department of Correctional Services et al

Filing 7

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 pa id, the prisoner shall be obligated to pay, and the agency having custody of the prisoner shall forward to the Clerk of Court, 20 percent of the preceding month's income in such months as the account exceeds $10.00. The Clerk of Court shall serve a copy of this order on the appropriate financial officer for Plaintiff' current institution. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party and as directed) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANTHONY LEE PATMON,
Plaintiff,
v.
STATE OF NEBRASKA
DEPARTMENT OF
CORRECTIONAL SERVICES,
RANDY T. KOHL, GARY
HUSTAD, and JON BRUNING,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

8:14CV420

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. 6.) 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 six months preceding the filing of the
complaint. Plaintiff’s account balance is $0.00, and the court cannot assess an initial
partial filing fee. (Filing No. 6.) 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 below.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Motion for Leave to Proceed IFP (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 Court, 20 percent of the preceding month’s income in such months as
the account exceeds $10.00.
2.
The Clerk of Court shall serve a copy of this order on the appropriate
financial officer for Plaintiff’s current institution.
DATED this 30th day of December, 2014.
BY THE COURT:
s/ John M. Gerrard
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.

2