Franklin v. Frakes et al

Filing 7

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Proceed IFP (Filing No. 2 ) is granted. Plaintiff must pay an initial partial filing fee of $13.00 within 30 days, unless the court extends the time in which he has to pay in resp onse to a written motion. 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 follow ing text: November 28, 2016: initial partial filing fee payment due. 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 Plai ntiff'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. Plaintiff's Motion for Appointment of Counsel (Filing No. 4 ) is denied without prejudice to reassertion. 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
JOSHUA G. FRANKLIN SR.,
Plaintiff,
V.
SCOTT FRAKES, et al.,
Defendants.

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8:16CV470

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. 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 $13.00, based on an
average monthly account balance of $65.00. 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 needed.

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.
Plaintiff has also filed a Motion (Filing No. 4) seeking the appointment of
counsel. The court cannot routinely appoint counsel in civil cases. In Davis v. Scott,
94 F.3d 444, 447 (8th Cir. 1996), the Eighth Circuit Court of Appeals explained that
“[i]ndigent civil litigants do not have a constitutional or statutory right to appointed
counsel.” Trial courts have “broad discretion to decide whether both the plaintiff and
the court will benefit from the appointment of counsel, taking into account the factual
and legal complexity of the case, the presence or absence of conflicting testimony, and
the plaintiff’s ability to investigate the facts and present his claim.” Id. Having
considered these factors, the request for the appointment of counsel will be denied
without prejudice to reassertion.

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IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Motion for Leave to Proceed IFP (Filing No. 2) is granted.

2.
Plaintiff must pay an initial partial filing fee of $13.00 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’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 Plaintiff’s institution.
5.
The clerk’s office is directed to set a pro se case management deadline
in this case using the following text: November 28, 2016: initial partial filing fee
payment due.
6.
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.
7.
Plaintiff’s Motion for Appointment of Counsel (Filing No. 4) is denied
without prejudice to reassertion.
DATED this 28th day of October, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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