Clayborne v. Tecumseh Department of Corrections et al

Filing 70

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Proceed in Forma Pauperis on Appeal (Filing No. 65 ) is granted. Plaintiff shall pay an initial partial filing fee of $0.09 within 30 days unless an enlargement of time is granted i n response to a written motion. 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's office is directed to send a copy of this order to the appropriate official at Plaintiff's institution and to the Eighth Circuit Court of Appeals. The clerk's office is further directed to send a copy of Plaintiff's Request for Counsel (Filing No. 66 ) to the Eighth Circuit Court of Appeals for disposition by that Court. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and as directed)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT EARL CLAYBORNE JR.,
Plaintiff,
v.
SCOTT FRAKES, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

8:15CV198

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Notice of Appeal (Filing No. 62).
Plaintiff was permitted to proceed in forma pauperis in this action on June 23, 2015,
and he may now proceed in forma pauperis on appeal without further authorization.
Fed. R. App. P. 24(a)(3).
The Prison Litigation Reform Act (“PLRA”) requires prisoner plaintiffs to pay
the full amount of the court’s $505.00 appellate filing fee by making monthly
payments to the court, even if the prisoner is proceeding in forma pauperis. 28 U.S.C.
§ 1915(b). The PLRA “makes prisoners responsible for their filing fees the moment
the prisoner brings a civil action or files an appeal.” Jackson v. N.P. Dodge Realty
Co., 173 F. Supp. 2d 951, 952 (D. Neb. 2001) (citing In re Tyler, 110 F.3d 528, 52930 (8th Cir. 1997)). The appellate filing fee is assessed when the district court
receives the prisoner’s notice of appeal. Henderson v. Norris, 129 F.3d 481, 485 (8th
Cir. 1997).
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 notice of appeal. See 28 U.S.C.
§ 1915(b)(1). Accordingly, based on the records before the court, the initial partial
filing fee is $0.09, based on an average account balance of $0.43. (See Filing No. 69.)
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.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Motion for Leave to Proceed in Forma Pauperis on Appeal
(Filing No. 65) is granted.
2.
Plaintiff shall pay an initial partial filing fee of $0.09 within 30 days
unless an enlargement of time is granted in response to a written motion.
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’s office is directed to send a copy of this order to the
appropriate official at Plaintiff’s institution and to the Eighth Circuit Court of
Appeals.
5.
The clerk’s office is further directed to send a copy of Plaintiff’s Request
for Counsel (Filing No. 66) to the Eighth Circuit Court of Appeals for disposition by
that Court.
January 9, 2017.

BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
-2-