United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
Harold Wilson (“Wilson”), who is incarcerated at
the Nebraska State Penitentiary, filed a Complaint on
November 30, 2016. (Filing No. 1.) At the time this
lawsuit was filed, Wilson was incarcerated at the Lincoln
Correctional Center. Riley Nicole Shadle
(“Shadle”), who is incarcerated at the Lincoln
Correctional Center, also signed the Complaint. In response
to an order issued by this court on December 7, 2016 (Filing
No. 6), Wilson and Shadle have advised the court
that they both wish to proceed in this action.
has filed a Motion for Leave to Proceed In Forma Pauperis.
(Filing No. 2.) The court has received a certified
copy of Wilson's trust account information. (Filing No.
3.) Wilson 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), Wilson must pay an initial
partial filing fee in the amount of 20 percent of the greater
of Wilson'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 $35.79, based on an average monthly account
balance of $178.95. Wilson must pay this initial partial
filing fee within 30 days or his case will be subject to
dismissal. Wilson may request an extension of time if one is
addition to the initial partial filing fee, Wilson 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, Wilson'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.
December 9, 2016, Wilson filed a motion requesting that three
individuals be added to the suit as defendants. (Filing No.
9.) This motion will be denied without prejudice to
Wilson filing a proper motion to amend the Complaint in
accordance with the local rules of this court. See
December 27, 2016, Wilson also filed a Motion for Preliminary
Injunction and/or Temporary Restraining Order. (Filing No.
12.) The motion requests that the court direct
Defendants to (1) allow Wilson and Shadle to correspond with
one another regarding this action and (2) transfer Wilson
from the Nebraska State Penitentiary to the Lincoln
Correctional Center, where Shadle is currently incarcerated.
Wilson contends that Plaintiffs have been prevented from
communicating and, thus, cannot comply with the court's
requirement that pleadings be signed by both parties. Wilson
asserts that he has been prevented from corresponding with
Shadle since October 30, 2016. Wilson further contends that
because he is a certified legal aide with a paralegal degree,
Shadle will be harmed if he does not have Wilson's
assistance in this action.
determine whether to grant preliminary injunctive relief, the
court evaluates (1) the probability of Plaintiffs'
success on the merits; (2) the threat of irreparable harm to
Plaintiffs; (3) the threat of harm to Respondents balanced
against the harm to Plaintiffs; and (4) the public interest.
Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109,
113 (8th Cir. 1981).
court finds that injunctive relief is not warranted at this
time. At this stage in the litigation, Plaintiffs have not
paid their initial partial filing fees, and the court has not
conducted an initial review of the Complaint. Further, the
court notes that Shadle was seemingly able to sign the
Complaint in this action, which was filed on November 30,
2016, despite Plaintiffs' alleged inability to
communicate. (Filing No. 1.) Shadle was also able to
file a Motion for Leave to Proceed In Forma Pauperis (Filing
No. 10) on his own ...