Novascone v. Nebraska Dept. of Correctional Services et al

Filing 79

MEMORANDUM AND ORDER Plaintiff's Motion for Leave to Proceed in Forma Pauperis on Appeal (filing 74 ) is granted. Plaintiff shall pay an initial partial filing fee of $64.93 within 30 days unless an enlargement of time is granted in respo nse 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. (Copy mailed to pro se party and institution) (LRM)

8:19-cv-00201-RGK-PRSE Doc # 79 Filed: 09/19/22 Page 1 of 3 - Page ID # 547

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COLTON J. NOVASCONE,
Plaintiff,

8:19CV201

vs.
MEMORANDUM AND ORDER
DANIEL DANAHER, P.A., N.D.C.S.;
Defendant.
This matter is before the court on Plaintiff’s Notice of Appeal (filing 73) and
Motion for Leave to Proceed in Forma Pauperis on Appeal (filing 74).
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 $64.93, based on an average monthly account balance of
$324.64. (See Filing 78.)

8:19-cv-00201-RGK-PRSE Doc # 79 Filed: 09/19/22 Page 2 of 3 - Page ID # 548

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.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Motion for Leave to Proceed in Forma Pauperis on Appeal
(filing 74) is granted.
2.
Plaintiff shall pay an initial partial filing fee of $64.93 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.

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8:19-cv-00201-RGK-PRSE Doc # 79 Filed: 09/19/22 Page 3 of 3 - Page ID # 549

Dated this 19th day of September, 2022.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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