Mack v. Ricketts et al

Filing 35

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Proceed in Forma Pauperis on Appeal (filing no. 31 ) is granted. Plaintiff shall pay an initial partial filing fee of $0.09 within 30 days unless an enlargement of time is granted in response to a written motion. After payment of the initial partial filing fee, Plaintiff's institution shall collect the additional monthly payments in the manner set forth in 28 U.S.C. § 1915(b)(2), quoted above, and shall forward those installments to the court. The clerk's office is directed to send a copy of this order to the appropriate official at Plaintiff's institution. Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed) (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NATHANIAL GERALD SERRELL
MACK,
8:17CV495
Plaintiff,
vs.
DR. JEFF MELVIN, PH.D. N.D.C.S.
Behavioral Health Assistant
Administrator for Sex Offender Services
and C-Sort (Clinical Sex Offender
Review Team) Chair Person (Officially
and Individually); DR. STEPHANIE
BRUHN, N.D.C.S. Behavioral Health
Assistant Administrator for Sex Offender
Services and C-Sort Team Chair Person
(Officially and Individually); TAMMY
JACKSON, LIMHP N.D.C.S. Mental
Health practioner Clinical Sex Offender
Programs Manager and C-Sort Vice Chair
Person (Officially and Individually); and
JERAMY SIMONSEN, Nebraska State
Penitentiary Mental Health Practioner II
and former Acting Clinical Sex Offender
Programs Manager and C-Sort Vice Chair
Person (Officially and Individually);

MEMORANDUM
AND ORDER

Defendants.
This matter is before the court on Plaintiff’s Notice of Appeal (filing no. 30)
and Motion for Leave to Proceed in Forma Pauperis on Appeal (filing no. 31).
The Prison Litigation Reform Act (“PLRA”) requires prisoner plaintiffs to
pay the full amount of the court’s $505.00 appellate filing fee by making monthly

payments to the court, even if the prisoner is proceeding in forma pauperis. 28
U.S.C. § 1915(b). The PLRA “makes prisoners responsible for their filing fees the
moment the prisoner brings a civil action or files an appeal.” Jackson v. N.P.
Dodge Realty Co., 173 F. Supp. 2d 951, 952 (D. Neb. 2001) (citing In re Tyler,
110 F.3d 528, 529-30 (8th Cir. 1997)). The appellate filing fee is assessed when
the district court receives the prisoner’s notice of appeal. Henderson v. Norris, 129
F.3d 481, 485 (8th Cir. 1997).
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 notice of appeal. See 28
U.S.C. § 1915(b)(1). Accordingly, based on the records before the court, the initial
partial filing fee is $0.09, based on an average monthly account balance of $0.47.
(See Filing No. 34.)
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, the remaining installments shall be collected pursuant to this procedure.

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IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Motion for Leave to Proceed in Forma Pauperis on Appeal
(filing no. 31) is granted.
2.
Plaintiff shall pay an initial partial filing fee of $0.09 within 30 days
unless an enlargement of time is granted in response to a written motion.
3.
After payment of the initial partial filing fee, Plaintiff’s institution
shall collect the additional monthly payments in the manner set forth in 28 U.S.C.
§ 1915(b)(2), quoted above, and shall forward those installments 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.
Dated this 7th day of November, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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