United States District Court, D. Nebraska
MATTHEW O. MIXON, Plaintiff,
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
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).
Motion for Leave to Proceed IFP
court has received a certified copy of Plaintiff's trust
account information. (Filing No. 9.) 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 $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.
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.
Motion to Amend and Motion for Leave to Add Exhibits
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.
Request for Discovery and Motion for Service of
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. § 1915(e)(2). The court must dismiss a complaint
or any portion thereof that states a frivolous or ...