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Kosiski v. Frakes
United States District Court, D. Nebraska
July 14, 2016
EDWARD KOSISKI, Plaintiff,
SCOTT FRAKES, MICHAEL KENNY, ROBERT HOUSTON, RANDY KOHL, MICHAEL ROTHWELL, LARRY WAYNE, BARBARA LEWEIN, FRED BRITTEN, BRIAN GAGE, BRAD MCDONNELL, MICHELLE CAPPS, EDWARD FABIEN, UNKNOWN WEATHERSPOON, CURTIS WEES, SHAWN SHERMAN, THOMAS ENGLISH, TOM DAVIS, UNKNOWN KINLUND, JAMES ELLINGER, UNKNOWN LATKA, UNKNOWN ARMKNECKT, UNKNOWN LEDUC, CAMERON WHITE, LISA JONES, STEPHANIE BRUHN, LAYNE GISSLER, PAUL RODRIGUEZ, UNKNOWN PEARSON, AGNES STAIRS, BETH GEIGER, AMANDA HOLMGREEN, ALAN LEVINSON, AMBER GARCIA, ANTONI HANIGAN, JOHN HILL, JASON WORKMAN, BRANDY LOGSTON, LARRY MURPHY, TAMMY JACKSON, COLLETTE WAGONER, MICAELA VANSKIVER WILLIAMS, ROSALYN COTTON, Chair, REX RICHARD, Vice Chair, RANDALL REHMEIER, Member, TERESA BITTINGER, Member, VIRGIL PATLON, Member, and ALL JOHN AND JANE DOES KNOWN AND UNKNOWN, Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Plaintiff's Declaration and
Request 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.7.) Plaintiff is permitted
to proceed IFP.
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).
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 $51.99, based on average monthly deposits in
the amount of $259.95. 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.
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.
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.
has also filed a Motion for the Appointment of Counsel
(Filing No. 4). The court cannot routinely appoint
counsel in civil cases. In Davis v. Scott, 94 F.3d
444, 447 (8th Cir. 1996), the Eighth Circuit Court of Appeals
explained that "[i]ndigent civil litigants do not have a
constitutional or statutory right to appointed counsel."
Trial courts have "broad discretion to decide whether
both the plaintiff and the court will benefit from the
appointment of counsel, taking into account the factual and
legal complexity of the case, the presence or absence of
conflicting testimony, and the plaintiff's ability to
investigate the facts and present his claim."
Id. Having considered these factors, the request for
the appointment of counsel will be denied without prejudice
THEREFORE ORDERED that:
Plaintiff's Declaration and Request for Leave to Proceed
IFP (Filing No. 2) is granted.
Plaintiff must pay an initial partial filing fee of $51.99
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
clerk of the court is directed to send a copy of this order
to the appropriate ...