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Mixon v. Omaha Police Department Officers

United States District Court, D. Nebraska

November 3, 2017

MATTHEW O. MIXON, Plaintiff,
v.
OMAHA POLICE DEPARTMENT OFFICERS, on 09-07-2015; DOUGLAS COUNTY DEPT. OF CORRECTIONS, MEDICAL DEPARTMENT EMPLOYEES, JACQUELYN MORRISON, Douglas County Public Defenders Office; JULIE L. MEDINA, Douglas County Attorneys Office; and DOUGLAS COUNTY NEBRASKA, all as Defendants; Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This matter is before the court on Plaintiff's Motion for Leave to Proceed in Forma Pauperis (“IFP”) (Filing No. 2.), Motion to Amend (Filing No. 6), Motion for Leave to Add Exhibits and Request for Discovery (Filing No. 7), and Motion for Service of Summons (Filing No. 8).

         I. Motion for Leave to Proceed IFP

         The court has received a certified copy of Plaintiff's trust account information. (Filing No. 9.) Plaintiff is permitted to proceed IFP.

         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 $25.03, based on average monthly deposits in the amount of $125.16. 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.

         II. Motion to Amend and Motion for Leave to Add Exhibits

         Plaintiff asks the court for leave to amend his Complaint “to add only to the story in this Civil Complaint.” (Filing No. 6 at CM/ECF p.1.) Additionally, Plaintiff moves the court to permit him to “enter Exhibits/documentations to prove to this court Plaintiff's claims are true” referring to 8 pages of attached documents (Filing No. 7 at CM/ECF pp.1, 3-10.) Pursuant to NECivR 15.1(b), the court will consider the additional allegations in Plaintiff's Motion to Amend (Filing No. 6) and the documents attached to Plaintiff's Motion for Leave to Add Exhibits (Filing No. 7 at CM/ECF pp.3-10) as supplemental to Plaintiff's Complaint.

         III. Request for Discovery and Motion for Service of Summons

         Plaintiff seeks an order compelling discovery of certain photographs from the Omaha Police Department. (Filing No. 7.) Plaintiff also moves the court to issue summons and serve a copy of the Complaint on various parties. (Filing No. 8.) However, no discovery or service of process may take place in this case at this time. Before this matter may proceed, Plaintiff is required to pay an initial partial filing fee of $25.03. Once payment is made, the court is required to review Plaintiff's Complaint to determine whether summary dismissal is appropriate. See 28 U.S.C. ยง 1915(e)(2). The court must dismiss a complaint or any portion thereof that states a frivolous or ...


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