Mack v. Ricketts et al
Filing
9
MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Plaintiff's Motion for Leave to Proceed IFP (Filing No. 2 ) is granted. Plaintiff must pay an initial partial filing fee of $0.02 within 30 days, unless the court extends the time in which he has to pay in response to a written motion. 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 clerks office is directed to send a copy of this order to the appropriate official at Plaintiff's institution. The clerk's office is directed to set a pro se case management deadline in this case using the following text: February 22, 2018: 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 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 and will address Plaintiff's motions to appoint counsel and for summons at that time. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party as directed)(TCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NATHANIAL GERALD SERRELL
MACK,
8:17CV495
Plaintiff,
vs.
PETE RICKETTS, Nebraska State
Governor (officially and Individually);
DAVID HEINAMEN, Former Governor
(Officially and Individually); SCOTT
FRAKES, N.D.C.S. Director (Officially
and Individually); MICHEL KENNEY,
Former N.D.C.S. Director (Officially
and Individually); ROBERT P.
HOUSTON, Former N.D.C.S. Director
(Officially and Individually); MICHAEL
ROTHWELL, N.D.C.S. Deputy Director
Division of Programs and Community
Services (Officially and Individually);
DIANE SABATKA-RINE, Deputy
Director of Opperations (Officially and
Individually); ROSALYN COTTON,
Nebraska State Parole Board Chair
(Officially and Individually); REX
RICHARDS, Nebraska State Parole
Board Vice Chair Person (Officially and
Individually); MARIO PURT, Lincoln
Correctional Center Warden (Officially
and Individually); ROBERT MADSON,
Nebraska State Penitentiary Warden
(Officially and Individually); RICHARD
CRUICKSHANK, Nebraska State
Penitentiary Warden (Officially and
Individually); JASON HURT, Nebraska
State Penitentiary Associate Warden and
Former Lincoln Correctional Center
MEMORANDUM
AND ORDER
Unit Adminatrator (Officially and
Individually); DAVID HARDGRAVES,
Lincoln Correctional Center Unit
Adminastrator and former Housing Unit
Bravo Unit Manager (officially and
Individually); 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); WAYNE
CHANDLIER, N.D.C.S. Behavioral
Health Assistant Administrator for
Mental Health Services (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); PAUL RODRIQIEZ,
LIMHP N.D.C.S. Clinical Sex Offender
Programs Manager and C-Sort Team
Vice Chair Person (Officially and
Individually); JANE DOE I, Former
Nebraska State Penitentiary Mental
Health Practioner II (Officially and
Individually); HEATHER JACKSON,
Nebraska State Penitentiary Mental
Health Practioner II (Officially and
Individually); JERAMY SIMONSEN,
Nebraska State Penitentiary Mental
Health Practioner II and former Acting
Clinical Sex Offender Programs
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Manager and C-Sort Vice Chair Person
(Officially and Individually); and TOM
PFEIFER, Nebraska State Penitentiary
Librarian (Officially and Individually) et
al.;
Defendants.
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. 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 $0.02,
based on an average monthly account balance of $0.12. 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
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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 $0.02 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.
4.
The clerk’s office is directed to send a copy of this order to the
appropriate official at Plaintiff’s institution.
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5.
The clerk’s office is directed to set a pro se case management deadline
in this case using the following text: February 22, 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 and will address Plaintiff’s motions to appoint counsel and for
summons at that time.
Dated this 23rd day of January, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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