Ortiz v. State of Neb Douglas Co

Filing 9

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. Plaintiff Lucas M. Ortiz shall pay an initial partial filing fee of $48.73 by January 8, 2018, unless an enlargement of time is granted in response to a written motion. Pro Se Case Management Deadline set for 1/8/2018: Initial partial filing fee payment due. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and insittution)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LUCAS M. ORTIZ,
Plaintiff,

8:17CV412

vs.
STATE OF NEB DOUGLAS CO,

MEMORANDUM
AND ORDER

Defendant.
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. 7; Filing No. 8.) 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 $48.73,
based on average monthly deposits in the amount of $243.64. 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.
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 $48.73 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.
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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: January 8, 2018: 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.

Dated this 8th day of December, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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