Gardner v. State of Nebraska et al

Filing 37

MEMORANDUM AND ORDER - Plaintiff's letter, construed as a motion, (filing no. 35 ) is denied. The clerk of the court is directed to send to Plaintiff a copy of the receipt he requests, if available, and the court's record for Plaintiff's payments to the court in this case. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party along with payment history) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUSTIN GARDNER,
Plaintiff,

8:17CV391

vs.
STATE OF NEBRASKA, KIMBERLY
MILLER PANKONIN, DOUGLAS A.
JOHNSON, MARLON A. POLK, and
MATTHEW J. MILLER,

MEMORANDUM
AND ORDER

Defendants.
This matter is before me on correspondence from Plaintiff Justin Gardner
which I liberally construe as a motion. (Filing No. 35.) In his letter, Plaintiff asks
for a copy of the receipt showing he paid $337.28 towards the filing fee in this case
and further seeks return of $100.00 from his $337.28 payment so that he may put
those funds towards various filing fees he owes in state court. Plaintiff also asks
the clerk of the court to fax various records from Plaintiff’s “two reopened Douglas
County District Court case numbers: CR15-694, and CR15-2366 . . . available at
Nebraska’s Judicial Records Justice site.” (Id. at CM/ECF pp. 1–2.) Plaintiff’s
requests for a refund and for the state court records are denied.
First, the court cannot refund any portion of Plaintiff’s filing fee in this case.
Under the Prison Litigation Reform Act, an indigent inmate who files a lawsuit in
federal court must pay the $350.00 filing fee, first by making an initial partial
payment and then by sending the remainder of the fee to the court in installments.
The method for collecting the filing fee from a prisoner is specifically provided for
in 28 U.S.C. § 1915(b). Section 1915(b) is written in mandatory terms (“the
prisoner shall be required to pay”), leaving no discretion to the district court to
waive an in forma pauperis prisoner’s filing fee. Moreover, the Prison Litigation

Reform Act makes prisoners responsible for their filing fees the moment the
prisoner brings a civil action or files an appeal, even if the case is dismissed at a
later time. See In re Tyler, 110 F.3d 528, 529–30 (8th Cir. 1997).
Second, the clerk of the court cannot provide the state court records Plaintiff
requests because the court does not possess such records. Plaintiff should direct his
request to the appropriate state court in possession of the records he seeks (in this
case, the Douglas County District Court of Nebraska). Accordingly,
IT IS ORDERED that:
1.

Plaintiff’s letter, construed as a motion, (filing no. 35) is denied.

2.
The clerk of the court is directed to send to Plaintiff a copy of the
receipt he requests, if available, and the court’s record for Plaintiff’s payments to
the court in this case.
Dated this 15th day of January, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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