United States District Court, D. Nebraska
MR. TERRICK NOONER, Plaintiff,
STATE OF NEBRASKA, QUINN ROBERT EATON, and MS. MARNIE JENSEN, Defendants.
MEMORANDUM AND ORDER
SMITH CAMP 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) and what the court construes as a
Motion for Summons (filing no. 4). The court has
received a certified copy of Plaintiff's trust account
information. (filing no. 3.) 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 $5.20, based on average monthly deposits in the
amount of $26.00. 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.
court is required to review in forma pauperis complaints 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 malicious claim, that fails to state a claim
upon which relief may be granted, or that seeks monetary
relief from a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B). This matter may not proceed to
service of process unless so ordered by the court after
conducting this initial review. Accordingly, Plaintiff's
motion for summons (filing no. 4) is denied.
THEREFORE ORDERED that:
Plaintiff's Motion for Leave to Proceed IFP (filing
no. 2) is granted.
Plaintiff must pay an initial partial filing fee of $5.20
within 30 days, unless the court extends the time in which he
has to pay in response to a written motion.
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's office is directed to send a copy of this order
to the appropriate ...