Ringland v. Google LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

MARK RINGLAND,

Plaintiff, 8:21CV481

vs.

MEMORANDUM

GOOGLE LLC, AND ORDER

Defendant.

On February 22, 2022, the court entered an order (Filing 18) which granted

Plaintiff leave to proceed in forma pauperis (“IFP”) and directed him to pay an initial

partial filing fee of $12.71 within 30 days, based upon an average monthly trust

account balance of $63.58 (Filing 17). Plaintiff has since filed motions requesting

that the court waive all filing fees because he is in federal custody with only $0.35

in his institutional account and is unable to obtain prison work due to COVID

restrictions. (Filing 20.) Alternatively, he requests a one-year extension of time

within which to file his initial partial filing fee. (Filing 21.)

Under the Prison Litigation Reform Act (“PLRA”), an indigent inmate who

files a lawsuit in federal court must pay the $350.00 filing fee, first by making an

initial partial payment and then by sending the remainder of the fee to the court in

installments. 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 an in forma pauperis prisoner’s filing fee. It is also well-established in this

circuit that “the PLRA 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) (refusing to consider petition for writ of mandamus filed by

prisoner who was not eligible for installment payments under 28 U.S.C. § 1915(b),

directing court clerk to dismiss petition with prejudice if filing fee was not paid in

full within 15 days, and holding that prisoner would still be assessed full filing fee

even if petition was dismissed). “The purpose of the [PLRA] was to require all

prisoner-litigants to pay filing fees in full, with the only issue being whether the

inmate pays the entire filing fee at the initiation of the proceeding or in installments

over a period of time.” Ashley v. Dilworth, 147 F.3d 715, 716 (8th Cir. 1998).

Plaintiff’s request for a waiver of the filing fee therefore will be denied.

Although the court cannot waive the $350.00 filing fee, the PLRA provides

that “[i]n no event shall a prisoner be prohibited from bringing a civil action or

appealing a civil or criminal judgment for the reason that the prisoner has no assets

and no means by which to pay the initial partial filing fee.” 28 U.S.C. § 1915(b)(4).

Therefore, this matter will be permitted to proceed to initial review without full

payment of the initial partial filing fee of $12.71. However, the court will direct

Plaintiff’s institution to withdraw from his inmate account any portion of the initial

partial filing fee available and transmit it to the clerk of the district court.1 See

Hatchet v. Nettles, 201 F.3d 651, 653 (5th Cir. 2000). “Even if the account balance

is under ten dollars, the custodial institution must still forward payments to the

district court to pay the initial partial filing fee as the ten-dollar rule of § 1915(b)(2)

is applicable only after the initial partial filing fee is paid.” Id. Once any available

portion of the initial partial filing fee is paid, this matter shall proceed as if the entire

initial partial filing fee had been paid. See id. Thereafter, Plaintiff’s institution shall

continue to withdraw from Plaintiff’s account all funds deposited into the account

1 By filing his Complaint in this court, Plaintiff has consented to the assessment of

fees and withdrawal of funds from his account by prison officials to pay those fees. See

McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997), disapproved of on other

grounds by Newlin v. Helman, 123 F.3d 429 (7th Cir. 1997) (“As the Prison Litigation Act

makes prisoners responsible for their filing fees the moment the civil action or appeal is

filed, see In re Tyler, 110 F.3d at 529-30, we conclude that by filing the complaint or notice

of appeal, the prisoner waives any objection to the fee assessment by the district court.

Furthermore, the prisoner waives any objection to the withdrawal of funds from the trust

account by prison officials to pay the prisoner’s court fees and costs. A prisoner has a duty

to cooperate during the litigation.”).

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as they become available and transmit the funds to the clerk of the district court until

the entire $12.71 initial partial filing fee is paid. See id.

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 as provided in 28 U.S.C. § 1915(b)(2) (i.e. monthly payments of 20 percent of

the preceding month’s income credited to Plaintiff’s inmate account each time the

amount in that account exceeds $10.00).

IT IS THEREFORE ORDERED that:

1. Plaintiff’s motion to waive payment of the initial partial filing fee

(Filing 20) is granted in part and denied in part, as follows:

a. This matter will proceed to initial review without full payment

of the initial partial filing fee.

b. However, Plaintiff shall still be required to pay the initial partial

filing fee as funds exist. Effective immediately, Plaintiff’s

institution shall withdraw from his inmate account any

portion of the initial partial filing fee available and transmit

it to the clerk of the district court within 30 days of the date

of this order. Plaintiff’s institution shall continue to withdraw

from Plaintiff’s account all funds deposited into the account as

they become available and transmit the funds to the clerk of the

district court until the entire $12.71 initial partial filing fee is

paid.

c. After payment of the initial partial filing fee of $12.71, Plaintiff’s

institution shall collect monthly payments from Plaintiff’s

account in the manner set forth in 28 U.S.C. § 1915(b)(2) and

forward those payments to the clerk of the court.

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d. In all other respects, Plaintiff's motion (Filing 20) is denied.

2. Because Plaintiffs institution has been ordered to withdraw from

Plaintiff’s inmate account any portion of the initial partial filing fee available and

transmit it to the clerk of the district court within 30 days of the date of this order,

Plaintiff's motion to extend the time within which to pay the initial partial filing fee

(Filing 21) is granted for 30 days in order to accommodate such payment.

3. The clerk’s office is directed to send a copy of this order to the

appropriate official at Plaintiff's institution.

4. The clerk’s office is directed to set a pro se case management deadline

in this case using the following text: April 8, 2022: initial partial filing fee, or any

portion thereof, due.

5. Plaintiff is advised that, following payment of any portion of his initial

partial filing fee, the next step in Plaintiffs case will be for the court to conduct an

initial review of Plaintiff's claims to determine whether summary dismissal is

appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A. The court will conduct this

initial review in its normal course of business.

DATED this 9th day of March, 2022.

BY THE COURT:

fichard G. Re YA

Richard G. “7

Senior United States District Judge