Mixon v. Douglas County Department of Corrections et al

Filing 18

MEMORANDUM AND ORDER that the Plaintiff's Motion for Extension of Time (Filing No. 17 ) is granted. Plaintiff must pay an initial partial filing fee of $11.40 within 30 days. Absent exceptional circumstances, no extensions of time will be granted. 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 of the court is directed to send a copy of this order to the appropriate official at Plaintiff's institution. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: March 2, 201 8: 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 Plaintiff's claims to det ermine 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. 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
MATTHEW O. MIXON,
Plaintiff,

8:17CV370

vs.
DOUGLAS COUNTY DEPARTMENT
OF CORRECTIONS, (D.C.D.C.), in
their official capacities; MARK
FOXHALL, C.E.O of (D.C.D.C.), in
their official capacities; MAIL ROOM
EMPLOYEES OF (D.C.D.C.), in their
official capacities; BUSINESS OFFICE
EMPLOYEES OF (D.C.D.C.), in their
official capacities; and RECORDS
DEPT. EMPLOYEES OF (D.C.D.C), in
their official capacities;

MEMORANDUM
AND ORDER

Defendants.
This matter is before the court on Plaintiff’s Motion for Extension of Time.
(Filing No. 17.) Plaintiff requests additional time to pay the initial partial filing fee
due to his current lack of funds and present inability to get a job on or off his
prison unit.
On January 10, 2018, the court ordered Plaintiff to show cause as to why this
case should not be dismissed for his failure to pay the initial partial filing fee.
(Filing No. 16.) Upon receipt of Plaintiff’s present motion, the court reexamined
the filings in this case and discovered an error in the court’s calculation of the
initial partial filing fee. The court relied on the certified trust account statement
submitted by Plaintiff’s institution on October 31, 2017, (Filing No. 7), but
mistakenly included funds in its calculation of the average monthly deposits which
should have been excluded. Additionally, after the court entered its order granting

Plaintiff leave to proceed in forma pauperis (“IFP”), Plaintiff’s institution
submitted another certified trust account statement in a separate case1 filed by
Plaintiff which included a certified amount of the average deposits in Plaintiff’s
account. (Filing No. 11, Case No. 8:17CV325.) In light of these circumstances,
the court deems it appropriate to recalculate the initial partial filing fee required by
28 U.S.C. § 1915(b).
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 $11.40,
based on average monthly deposits in the amount of $57.00. Plaintiff must pay
this initial partial filing fee within 30 days or his case will be subject to dismissal.
No further extensions of time will be granted absent exceptional
circumstances.
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:
1

Plaintiff’s other pending civil case is Mixon v. Omaha Police Department Officers et al,
Case No. 8:17-cv-325. The court takes judicial notice of the records of the court in 8:17-cv-325.
See Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take judicial notice
of judicial opinions and public records).

2

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.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Motion for Extension of Time (Filing No. 17) is granted.

2.
Plaintiff must pay an initial partial filing fee of $11.40 within 30 days.
Absent exceptional circumstances, no extensions of time will be granted.
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 of the court is directed to send a copy of this order to the
appropriate official at Plaintiff’s institution.
5.
The clerk of the court is directed to set a pro se case management
deadline in this case using the following text: March 2, 2018: initial partial filing
fee payment due.
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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.
Dated this 31st day of January, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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