Lightfeather v. Lee's Auto Sales
Filing
8
MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Proceed IFP (Filing #6 ), is granted. The filing fee shall be collected and remitted, as funds exist, in the manner set forth in 28 U.S.C. 1915(b)(2). Until the full filing fee of $350.00 is paid, the prisoner shall be obligated to pay, and the agency having custody of the prisoner 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 of the court shall serve a copy of this order on the appropriate financial officer for Plaintiff's current institution. 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. 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
AUSTIN E. LIGHTFEATHER,
Plaintiff,
8:21CV110
vs.
MEMORANDUM AND ORDER
LEE’S AUTO SALES,
Defendant.
This matter is before the court on Plaintiff=s Motion for Leave to Proceed in
Forma Pauperis (AIFP@). (Filing 6.) The court has received a certified copy
of Plaintiff=s trust account statement. (Filing 7.) Plaintiff is permitted to proceed
IFP.
The Prison Litigation Reform Act (APLRA@) requires prisoner plaintiffs 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). A[T]he
PLRA 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. Plaintiff=s account balance is $0.00, and the court cannot
assess an initial partial filing fee. However, as set forth in 28 U.S.C. § 1915(b)(4),
A[i]n no event shall a prisoner be prohibited from bringing a civil action . . . for
the reason that the prisoner has no assets and no means by which to pay the
initial partial filing fee.@ When the prisoner is unable to pay the initial partial filing
fee due to a lack of funds, the requirement that the initial partial filing fee will be
paid at the outset of the case is suspended. See Jackson, 173 F. Supp. 2d at 957
n. 9. Instead, Athe whole of
the . . . filing fees are to be collected and paid by the installment method contained
in § 1915(b)(2).@ Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997). This
matter will therefore proceed without payment of the initial partial filing fee as set
forth below.
IT IS THEREFORE ORDERED that:
1.
Plaintiff=s Motion for Leave to Proceed IFP (Filing 6), is granted. The
filing fee shall be collected and remitted, as funds exist, in the manner set forth in
28 U.S.C. § 1915(b)(2). Until the full filing fee of $350.00 is paid, the prisoner shall
be obligated to pay, and the agency having custody of the prisoner 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.
2.
The clerk of the court shall serve a copy of this order on the appropriate
financial officer for Plaintiff=s current institution.
3.
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 31st day of March, 2021.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
2
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