Guerry v. Frakes et al
MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis. Plaintiff Brian Frank Guerry shall pay an initial partial filing fee of $27.91 within 30 days, unless an enlargement of time is granted in response to a written motion. The clerk's office is directed to send a copy of this order to the appropriate official at Plaintiff's institution. Pro Se Case Management Deadline set for 10/7/2015: initial partial filing fee payment due. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party and plaintiff's institution)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRIAN FRANK GUERRY,
SCOTT FRAKES, Director, BRIAN
GAGE, Warden, KEITH BROADFOOT, )
Unit Manager, R HOLLY, Case
Manager, GUIFFE, Case Worker,
THOMPSON, Case Worker, and
NEBRASKA DEPARTMENT OF
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 IFP.
Prisoner plaintiffs are 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). The Prison Litigation Reform Act “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. Here,
the court finds the initial partial filing fee is $27.91, based on average monthly deposits in
the amount of $139.57. Plaintiff must pay this initial partial filing fee within 30 days or his
case will be subject to dismissal. Plaintiff may request an extension of time if one is
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,
Plaintiff’s institution must collect the remaining installments of the filing fee and forward the
payments to the court.
Plaintiff is advised he 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. Accordingly,
IT IS ORDERED:
Plaintiff’s Motion for Leave to Proceed IFP (Filing No. 2) is granted.
Plaintiff must pay an initial partial filing fee of $27.91 within 30 days, unless
the court extends the time in which he has to pay in response to a written
After payment of the initial partial filing fee, Plaintiff’s institution must collect
the additional monthly payments in the manner set forth in 28 U.S.C.
§ 1915(b)(2), quoted above, and forward those payments to the court.
The clerk’s office is directed to send a copy of this order to the appropriate
official at Plaintiff’s institution.
The clerk’s office is directed to set a pro se case management deadline in
this case using the following text: October 7, 2015: initial partial filing fee
Plaintiff is advised that, following payment of the initial partial filing fee,
the next step in Plaintiff’s case will be for the court to conduct an initial review
of Plaintiff’s claims to determine whether summary dismissal is appropriate
under 28 U.S.C. § 1915(e)(2). The court will conduct this initial review in its
normal course of business.
DATED this 3rd day of September, 2015.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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