Native American Faith Group of the Nebraska State Penitentiary, et al v. Frakes, et al
Filing
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MEMORANDUM AND ORDER - Plaintiff Sims' Motion for Leave to Proceed IFP 2 is granted. Plaintiff must pay an initial partial filing fee of $16.76 within 30 days unless the court extends the time in which he has to pay in response to a writ ten motion. After payment of the initial partial filing fee, Plaintiff Sims 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 clerks office is directed to send a copy of this order to the appropriate official at Plaintiff Sims' institution. Plaintiff Sims is advised that, following payment of the initial partial filing fee, the next step in Plaintiff Sims' ; case will be for the court to conduct an initial review of Plaintiff Sims' 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 b usiness. Native American faith Group of the Nebraska State Penitentiary is dismissed from this matter. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 8/12/2016:initial partial filing fee payment due.) Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NATIVE AMERICAN FAITH
GROUP OF THE NEBRASKA
STATE PENITENTIARY, and
MICHAEL JOSEPH SIMS,
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Plaintiffs,
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v.
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SCOTT R. FRAKES, Director of
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Corrections, DIANE SABATKE)
RHINE, Deputy Director, MICHAEL )
ROTHWELL, Deputy Director,
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SHARON PETTID, Deputy Director, )
RICHARD CRUICKSHANK,
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Warden @ NSP, RANDY
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BARTELT, Religious Coor. @ NSP, )
TIMOTHY KRAMER, Religious
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Coor. @ NSP, and RELIGIOUS
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STUDY COMMITTEE MEMBERS, )
et al, NDCS (multiple committee
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members unknown),
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Defendants.
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8:16CV326
MEMORANDUM
AND ORDER
This matter is before the court on Plaintiff Michael Joseph Sims’ Motion for
Leave to Proceed in Forma Pauperis (“IFP”). (Filing No. 2.) The court has received
a certified copy of Plaintiff Sims’ trust account information. (Filing No. 3.) Plaintiff
Sims 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 Sims must pay an initial partial
filing fee in the amount of 20 percent of the greater of Plaintiff Sims’ 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 $16.76, based on
an average monthly account balance of $83.83. Plaintiff Sims must pay this initial
partial filing fee within 30 days or his case will be subject to dismissal. Plaintiff Sims
may request an extension of time if one is needed.
In addition to the initial partial filing fee, Plaintiff Sims 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 Sims’ institution must collect the remaining installments of the filing fee and
forward the payments to the court.
Plaintiff Sims 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.
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While Native American Faith Group of the Nebraska State Penitentiary may
have the capacity to sue, see Fed. R. Civ. P. 17(b)(3)(A), Sims cannot act as its
representative in this lawsuit. A non-attorney pro se litigant may not represent
someone else in federal court. See 28 U.S.C. § 1654; Iannacone v. Law, 142 F.3d 553,
558 (2d Cir. 1998). Accordingly, Native American Faith Group of the Nebraska State
Penitentiary will be dismissed from this matter.
IT IS THEREFORE ORDERED that:
1.
Plaintiff Sims’ Motion for Leave to Proceed IFP (Filing No. 2) is granted.
2.
Plaintiff must pay an initial partial filing fee of $16.76 within 30 days,
unless the court extends the time in which he has to pay in response to a written
motion.
3.
After payment of the initial partial filing fee, Plaintiff Sims’ 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 Plaintiff Sims’ institution.
5.
The clerk’s office is directed to set a pro se case management deadline
in this case using the following text: August 12, 2016: initial partial filing fee payment
due.
6.
Plaintiff Sims is advised that, following payment of the initial partial
filing fee, the next step in Plaintiff Sims’ case will be for the court to conduct an initial
review of Plaintiff Sims’ 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.
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7.
Native American Faith Group of the Nebraska State Penitentiary is
dismissed from this matter.
DATED this 12th day of July, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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