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Gardner v. State

United States District Court, D. Nebraska

November 13, 2017

JUSTIN GARDNER, Plaintiff,
v.
STATE OF NEBRASKA, KIMBERLY PANKONIN MILLER, DOUGLAS A. JOHNSON, MARLON A. POLK, and MATTHEW J. MILLER, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         This matter is before the court on two motions filed by Plaintiff. The court will address each motion in turn.

         I. Motion to Appoint Counsel

         Plaintiff 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.

         II. Motion to Proceed In Forma Pauperis

         Plaintiff 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.

         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 $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 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.

         IT IS THEREFORE ORDERED that:

         1. Plaintiff's Motion to Appoint Counsel (Filing No. 5) is denied ...


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