United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
matter is before the court on Plaintiff's motion for
reconsideration of the court's June 18, 2018 Order
granting Plaintiff leave to proceed in forma pauperis
(“IFP”). (Filing No. 9.) Plaintiff also
includes a request for the appointment of counsel.
REQUEST TO RECONSIDER IFP STATUS
who is an inmate at the Tecumseh State Prison, was previously
given leave to proceed in forma pauperis. (Filing No.
6.) The court's IFP order advised Plaintiff that the
Prison Litigation Reform Act requires that prisoner
plaintiffs 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
order informed Plaintiff that 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.
Plaintiff was further advised that 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).
now objects to the court's calculation of the initial
partial filing fee and asks the court to recalculate the fee
based only on his income earned from the State and excluding
amounts Plaintiff received as gifts from family members.
Plaintiff states he will pay the initial partial filing fee
of $41.67, but asks that the rest of the filing fee be paid
at the end of this case by the Defendants. Plaintiff also
objects to the collection of the remainder of the filing fee
pursuant to 28 U.S.C. § 1915(B)(2) because “$10.00
isn't enough to pay for postage, make copies, and survive
off buying hygiene products” and Plaintiff needs at
least $20 a week to call home to his family. (Filing No.
9 at CM/ECF p.2.)
court has informed Plaintiff, the method for collecting the
filing fee from a prisoner is specifically provided for in 28
U.S.C. § 1915(b). Section 1915(b) is written in
mandatory terms (“the prisoner shall be required to
pay”), leaving no discretion to the district court to
waive any part of an in forma pauperis prisoner's filing
fee. Moreover, nothing in the statutory language of section
1915(b) indicates that monetary gifts a prisoner receives
from family should be excluded in calculating a
prisoner's “deposits, ” “income,
” or “amount in the account.” See
Jackson v. N.P. Dodge Realty Co., 173 F.Supp.2d 951, 954
(D. Neb. 2001) (noting court's definition of
“deposit” to mean “all gifts, wages, or
other income credited to [prisoner] plaintiff's account,
with the exception of credits for institutional activities or
canteen refunds, less court-ordered child support,
restitution, or other funds subject to a court order or
judgment”); Losee v. Maschner, 113 F.Supp.2d
1343, 1346 n.1 (S.D. Iowa 1998) (including idle pay and gift
in calculating prisoner's monthly income for purposes of
collecting the filing fee under § 1915(b)(2)) (citing
Lucien v. DeTella, 141 F.3d 773, 776 (7th Cir.1998)
(defining “income” under § 1915(b) as all
deposits to an inmate's account including gifts from
family members)). Rather, income under section 1915(b)
includes “all deposits to the prisoner's inmate
account, whether the deposit be earned income, a gift, or
otherwise.” Cosby v. Meadors, 351 F.3d 1324
(10th Cir. 2003).
Plaintiff's contention that gifts from his family should
be excluded as income for purposes of calculating his
payments under the Act is without merit. Therefore,
Plaintiff's motion will be denied and all payments will
be collected in accordance with section 1915(b).
REQUEST FOR APPOINTMENT OF COUNSEL
has also requested that counsel be appointed to represent him
in this matter. (Filing No. 9 at CM/ECF p.1, ¶
1.) 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.
THEREFORE ORDERED that Plaintiff's motion (filin ...