Muhammad v. Frakes ( 2021 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA ABDUR-RASHID MUHAMMAD, Plaintiff, 4:21CV3096 vs. SCOTT FRAKES, (Current Director) - In MEMORANDUM AND ORDER their Individual Capacity; MICHELE WILHELM, (Current Warden) - In their Individual Capacity; THE STATE OF NEBRASKA, ROBERT P. HOUSTON, (2013 DIRECTOR) - - In their Individual Capacity; DIANE SABATKA-RINE, (2013 WARDEN) - In their Individual Capacity; SCOTT ISHERWOOD, (2013 Unit Manager) - In their Individual Capacity; JOHN DOE 1-2, (Mail Room Employee) - In their Individual Capacity; and JANE DOE 1-2, (Mail Room Employee) - In their Individual Capacity; Defendants. This matter is before the court on Plaintiff’s Notice of Appeal. (Filing 18.) Plaintiff was permitted to proceed in forma pauperis in this action on May 13, 2021, and he may now proceed in forma pauperis on appeal without further authorization. Fed. R. App. P. 24(a)(3). The Prison Litigation Reform Act (“PLRA”) requires prisoner plaintiffs to pay the full amount of the court’s $505.00 appellate filing fee by making monthly payments to the court, even if the prisoner is proceeding in forma pauperis. 28 U.S.C. § 1915(b). The PLRA “makes prisoners responsible for their filing fees the moment the prisoner brings a civil action or files an appeal.” Jackson v. N.P. Dodge Realty Co., 173 F. Supp. 2d 951, 952 (D. Neb. 2001) (citing In re Tyler, 110 F.3d 528, 529–30 (8th Cir. 1997)). The appellate filing fee is assessed when the district court receives the prisoner’s notice of appeal. Henderson v. Norris, 129 F.3d 481, 485 (8th Cir. 1997). 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 notice of appeal. See 28 U.S.C. § 1915(b)(1). Accordingly, based on the records before the court, the initial partial filing fee is $61.07, based on average monthly deposits of $305.37. (See Filing 21.) 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, the remaining installments shall be collected pursuant to this procedure. IT IS THEREFORE ORDERED that: 1. Plaintiff may proceed on appeal in forma pauperis. 2. Plaintiff shall pay an initial partial filing fee of $61.07 within 30 days unless an enlargement of time is granted in response to a written motion. 3. After payment of the initial partial filing fee, Plaintiffs institution shall collect the additional monthly payments in the manner set forth in 28 U.S.C. § 1915(b)(2), quoted above, and shall forward those installments to the court. 4. The clerk’s office is directed to send a copy of this order to the appropriate official at Plaintiff's institution. Dated this 19th day of November, 2021. BY THE COURT: Kichind oF Richard G. “7 Senior United States District Judge