Wilson et al v. Geerdes et al

Filing 14

MEMORANDUM AND ORDER that Shadle's Motion for Leave to Proceed IFP (Filing No. 10 ) is granted. Shadle must pay an initial partial filing fee of $22.70 within 30 days, unless the court extends the time in which he has to pay in response to a written motion. After payment of the initial partial filing fee, Shadle'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 Shadle's institution. The clerk's office is directed to set a pro se case management deadline in this case using the following text: January 28, 2017: initial partial filing fee payment due. Shadle is advised that, following payment of the initial partial filing fee, the next step in this case will be for the court to conduct an initial review of the claims to determine whethe r 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. Shadle's initial Motion for Leave to Proceed In Forma Pauperis (Filing No. 7 ) is denied as moot. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and as directed) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HAROLD BRYAN WILSON, and
RILEY NICOLE SHADLE,
Plaintiffs,
V.
JASON GEERDES, FRED
BRITTEN, CATHY SHEAIR, and
SCOTT FRAKES,
Defendants.

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8:16CV524

MEMORANDUM AND ORDER

Plaintiff Harold Wilson (“Wilson”), who is incarcerated at the Nebraska State
Penitentiary, filed a Complaint on November 30, 2016. Riley Nicole Shadle
(“Shadle”), who is incarcerated at the Lincoln Correctional Center, also signed the
Complaint. Wilson and Shadle have advised that they both wish to proceed in this
action.
Shadle has filed a Motion for Leave to Proceed In Forma Pauperis in this suit
(Filing No. 10). The court has received a certified copy of Shadle’s trust account
information. (Filing No. 11.) Shadle 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), Shadle must pay an initial partial filing fee
in the amount of 20 percent of the greater of Shadle’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 $22.70, based on
average monthly deposits of $113.51. Shadle must pay this initial partial filing fee
within 30 days or his case will be subject to dismissal. Shadle may request an
extension of time if one is needed.
In addition to the initial partial filing fee, Shadle 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,
Shadle’s institution must collect the remaining installments of the filing fee and
forward the payments to the court.
Shadle 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 THEREFORE ORDERED that:
1.

Shadle’s Motion for Leave to Proceed IFP (Filing No. 10) is granted.

2.
Shadle must pay an initial partial filing fee of $22.70 within 30 days,
unless the court extends the time in which he has to pay in response to a written
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motion.
3.
After payment of the initial partial filing fee, Shadle’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 Shadle’s institution.
5.
The clerk’s office is directed to set a pro se case management deadline
in this case using the following text: January 28, 2017: initial partial filing fee
payment due.
6.
Shadle is advised that, following payment of the initial partial filing fee,
the next step in this case will be for the court to conduct an initial review of the 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.
Shadle’s initial Motion for Leave to Proceed In Forma Pauperis (Filing
No. 7) is denied as moot.
DATED this 29th day of December, 2016.
BY THE COURT:
S/ Richard G. Kopf
Senior United States District Judge

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