Cotton v. Douglas County Department of Corrections et al

Filing 7

ORDER - The plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs (Filing No. 6 ) is granted. The plaintiff must pay an initial partial filing fee of $75.00 within 30 days, unless the court extends the ti me in response to a written motion. After payment of the initial partial filing fee, the 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 the plaintiff's institution. Ordered by Magistrate Judge Thomas D. Thalken. (Copy mailed as directed)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JAMES COTTON,
Plaintiff,

8:16CV153

vs.
ORDER
DOUGLAS COUNTY DEPARTMENT
OF CORRECTIONS,
DOUGLAS COUNTY, NEBRASKA,
and JACQUELINE ESCH, in her
official capacity as a medical doctor
of Douglas County Corrections,
Defendants.
This matter is before the court on the plaintiff’s Application to Proceed in District
Court Without Prepaying Fees or Costs (Filing No. 6), which includes an affidavit
regarding his financial status.

Additionally, the plaintiff filed a Financial Account

Statement for the period October 8, 2015, through April 14, 2016. See Filing No. 5.
Upon review of these documents, the court finds the plaintiff is permitted to proceed
IFP.
Nevertheless, 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), the plaintiff must pay an initial partial filing
fee in the amount of twenty percent of the greater of the 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 $75.00, based on an
average monthly account balance of $375.00. The plaintiff must pay this initial partial
filing fee within thirty days or his case will be subject to dismissal. If necessary, the
plaintiff may file a motion requesting an extension of time.

In addition to the initial partial filing fee, the 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
plaintiff’s institution must collect the remaining installments of the filing fee and forward
the payments to the court.
Moreover, the 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.

IT IS ORDERED:
1.

The plaintiff’s Application to Proceed in District Court Without Prepaying

Fees or Costs (Filing No. 6) is granted.
2.

The plaintiff must pay an initial partial filing fee of $75.00 within 30 days,

unless the court extends the time in response to a written motion.
3.

After payment of the initial partial filing fee, the 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.
4.

The clerk’s office is directed to send a copy of this order to the appropriate

official at the plaintiff’s institution.
Dated this 11th day of May, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
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