Mack v. Ricketts et al

Filing 41

MEMORANDUM AND ORDER - Plaintiff's institution shall deduct the initial partial filing fee of $0.09 from Plaintiff's institutional account and remit payment to the clerk of the court. In the event that Plaintiff lacks sufficient fund s, Plaintiff's institution shall collect the whole of the appellate filing fees pursuant to the installment payment provisions of 28 U.S.C. § 1915(b)(2). Until the full filing fee of $505.00 is paid, Plaintiff shall be obligated to pay, and Plaintiff's institution shall forward to the clerk of the court, 20 percent of the preceding month's income in such months as the account exceeds $10.00. 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. (Copy mailed to pro se party & plaintiff's institution)(LKO)

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 its own motion. On November 7, 2019, the
court entered an order (filing no. 35) granting Plaintiff Nathanial Gerald Serrell
Mack leave to proceed in forma pauperis on appeal and directing him to pay an
initial partial appellate filing fee of $0.09 within 30 days. To date, Plaintiff has not
paid the filing fee or requested an extension of time in which to do so.

As the court has already informed Plaintiff, the Prison Litigation Reform Act
(“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).
Moreover, the court specifically informed Plaintiff when judgment was
entered in this matter that “[b]y filing a notice of appeal, Plaintiff will be
consenting to the deduction of the $505.00 filing fee from his prison account by
prison officials.” (Filing No. 29.) Thus, whether or not Plaintiff expressly
authorizes his institution to disburse the money owed here is irrelevant as the
amount owed, and how it will be collected, is determined entirely by 28 U.S.C. §
1915(b). Here, the court has calculated the initial appellate partial filing fee as
provided by § 1915(b)(1) and now “notif[ies] the prison officials to pay the initial
appellate partial fee from the prisoner’s account to the clerk of the district court
and to calculate and pay the remaining installments to the clerk of the district court
until the whole of the appellate filing fees has been paid in full as provided by §
1915(b)(2).” Henderson, 129 F.3d at 485.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s institution shall deduct the initial partial filing fee of $0.09
from Plaintiff’s institutional account and remit payment to the clerk of the court.
2.
In the event that Plaintiff lacks sufficient funds, Plaintiff’s institution
shall collect the whole of the appellate filing fees pursuant to the installment
payment provisions of 28 U.S.C. § 1915(b)(2). Until the full filing fee of $505.00
is paid, Plaintiff shall be obligated to pay, and Plaintiff’s institution shall forward

2

to the clerk of the court, 20 percent of the preceding month’s income in such
months as the account exceeds $10.00.
3.
The clerk’s office is directed to send a copy of this order to the
appropriate official at Plaintiff’s institution.
Dated this 20th day of December, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

3