Wayne v. Sarpy County Jail et al

Filing 14

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Proceed IFP, Filing No. #2 , is granted. Plaintiff must pay an initial partial filing fee of $13.31 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 Clerk's office is directed to send a copy of this order to the appropriate official at Plaintiffs institution. Plaintiff is advised that, following payment of the initial partial filing fee, the next step in Plaintiffs case will be for the Court to conduct an initial review of Plaintiffs 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. The Court's previous Memorandum and Order, Filing No. #10 , granting Plaintiff's Motion to Proceed In Forma Pauperis ("IFP"), is stricken as it was entered in error. Pro Se Case Management Deadline set for 12/23/2024: initial partial filing fee payment due. Ordered by Senior Judge John M. Gerrard. (Copy mailed to pro se party and as directed) (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES L. WAYNE,
Plaintiff,

8:24CV379

vs.
MEMORANDUM AND ORDER
SARPY COUNTY JAIL, Accounting
Dept.; SARPY COUNTY JAILCOMMISSARY VENDOR, SARPY
COUNTY JAIL-INMATE TABLET
PROVIDER, DOUGLAS COUNTY
DEPT. OF CORRECTIONS,
Accounting Dept.; KEEFE
COMMISSARY NETWORK, SMART
COMMUNICATIONS, Inmate Tablet
Provider; SARPY COUNTY,
NEBRASKA, CITY OF BELLEVUE,
NEBRASKA, DOUGLAS COUNTY,
NEBRASKA, and CITY OF OMAHA,
NEBRASKA,
Defendants.
This matter is before the Court on its own Motion. The Court’s previous
Memorandum and Order, Filing No. 10, granting Plaintiff’s Motion to Proceed
In Forma Pauperis (“IFP”), mistakenly included the incorrect judge’s
signature. Accordingly, the Memorandum and Order must be stricken and this
Amended Memorandum and Order will be entered in its place.
Before the Court previously was 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.
permitted to proceed IFP.

Filing No. 9.

Plaintiff is

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 $13.31, based on an average monthly account balance of $66.56.
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 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 $13.31 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.
5.

The Clerk’s office is directed to set a pro se case management

deadline in this case using the following text: December 23, 2024: 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.
7.

The Court’s previous Memorandum and Order, Filing No. 10,

granting Plaintiff’s Motion to Proceed In Forma Pauperis (“IFP”), is stricken
as it was entered in error.

Dated this 22nd day of November, 2024.
BY THE COURT:
s/ John M. Gerrard
Senior United States District Judge