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 Plaintiffs Motion for Extension
of Time. (Filing No. 20.) Plaintiff requests
additional time to pay the initial partial filing fee due to
his current lack of funds and present inability to get a job
on or off his prison unit.
January 10, 2018, the court ordered Plaintiff to show cause
as to why this case should not be dismissed for his failure
to pay the initial partial filing fee. (Filing No.
19.) Upon receipt of Plaintiff s present motion, the
court reexamined the filings in this case and discovered an
error in the court's calculation of the initial partial
filing fee. The court relied on the certified trust account
statement submitted by Plaintiffs institution on October 31,
2017, (Filing No. 9), but mistakenly included funds
in its calculation of the average monthly deposits which
should have been excluded. Additionally, after the court
entered its order granting Plaintiff leave to proceed in
forma pauperis (“IFP”), Plaintiffs institution
submitted another certified trust account statement which
included a certified amount of the average deposits in
Plaintiff's account. (Filing No. 11.) In light
of these circumstances, the court deems it appropriate to
recalculate the initial partial filing fee required by 28
U.S.C. § 1915(b).
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 $11.40, based on average monthly deposits in
the amount of $57.00. Plaintiff must pay this initial partial
filing fee within 30 days or his case will be subject to
dismissal. No further extensions of time will be
granted absent exceptional circumstances.
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 for Extension of Time (Filing No.
20) is granted.
Plaintiff must pay an initial partial filing fee of $11.40
within 30 days. Absent exceptional circumstances, no
extensions of time will be granted.
After payment of the initial partial filing fee,
Plaintiff's institution must collect the additional
monthly payments in the manner set forth in 28 U.S.C. §
1915(b)(2), quoted above, and forward those payments to the
clerk of the court is directed to send a copy of this order
to the appropriate ...