United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on two motions filed by Plaintiff.
The court will address each motion in turn.
Motion to Appoint Counsel
has filed a Motion (Filing No. 5) seeking the appointment of
counsel. 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 to reassertion.
Motion to Proceed In Forma Pauperis
has filed a Motion for Leave to Proceed in Forma Pauperis
(“IFP”) (Filing No. 6). 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 $59.14, based on an average monthly account
balance of $295.68. 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
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.
THEREFORE ORDERED that:
Plaintiff's Motion to Appoint Counsel (Filing No. 5) is