IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

DALONTE D FOARD,

Plaintiff, 

vs. 

TODD BAHENSKY, Director; D. WINKLER, 

Correction Officer; HOBBS, Correction 

Officer; and BEAVERNESS, Correction 

Officer;

Defendants.

8:23CV217

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiff’s Motion for Leave to Proceed in Forma 

Pauperis (“IFP”), Filing No. 2, and Plaintiff’s Motion to Appoint Counsel, Filing No. 7. The 

Court has received a certified copy of Plaintiff’s trust account information. Filing No. 8. 

Plaintiff is permitted to proceed IFP, however his motion for to appoint counsel shall be 

denied without prejudice to reassertion.

I. Motion to Proceed IFP

Prisoner 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, 

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110 F.3d 528, 529–30 (8th Cir. 1997); Jackson v. N.P. Dodge Realty Co., 173 F. Supp. 

2d 951 (D. Neb. 2001). 

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. Here, 

the court finds the initial partial filing fee is $7.82, based on average monthly deposits in 

the amount of $39.12. Filing No. 8 at 1. 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 is needed.

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, 

Plaintiff’s institution must collect the remaining installments of the filing fee and forward 

the payments to the court. 

Plaintiff 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. 

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II. Motion to Appoint Counsel

Plaintiff seeks appointment of counsel arguing that appointment is appropriate as 

he has been unable to secure private counsel due to his inability to pay for private 

counsel, that due to his incarceration he has limited ability to litigate this matter, that the 

issues in this case are complex, that a trial would likely involve conflicting testimony, and 

that counsel would better enable Plaintiff to present evidence and cross examine 

witnesses. Filing No. 7. “There is no constitutional or statutory right to appointed counsel 

in civil cases.” Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 794 (8th Cir. 2006). A district 

court “may request an attorney to represent” an indigent civil litigant, 28 U.S.C. § 

1915(e)(1), but it has a “good deal of discretion” in deciding whether to do so, Chambers 

v. Pennycook, 641 F.3d 898, 909 (8th Cir. 2011). “Relevant criteria for determining 

whether counsel should be requested include the factual and legal complexity of the case, 

the plaintiff’s ability to investigate the facts and to present the claims, and the presence 

or absence of conflicting testimony.” Recca v. Omaha Police Dep’t, 859 F. App’x 3, 4 (8th

Cir. 2021) (citing Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996)).

The Court has carefully reviewed the record and finds there is no need for the 

appointment of counsel at this time. As such, Plaintiff’s motion for appointment of counsel 

shall be denied without prejudice to reassertion. The Court will, however, “continue to be 

alert to the possibility that, because of procedural complexities or other reasons, later 

developments in the case may show either that counsel should be appointed, or that strict 

procedural requirements should, in fairness, be relaxed to some degree.” Williams v. 

Carter, 10 F.3d 563, 567 (8th Cir. 1993).

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IT IS THEREFORE ORDERED that:

1. Plaintiff’s Motion for Leave to Proceed IFP, Filing No. 2, is granted.

2. Plaintiff must pay an initial partial filing fee of $7.82 within 30 days unless 

the Court extends the time in which he has to pay in response to a written motion.

3. 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 Court.

4. The Clerk’s Office is directed to send a copy of this order to the appropriate 

official at Plaintiff’s institution.

5. The Clerk’s Office is directed to set a pro se case management deadline in 

this case using the following text: July 10, 2023: initial partial filing fee payment due.

6. Plaintiff’s motion to appoint counsel, Filing No. 7, is denied without prejudice 

to reassertion.

7. Plaintiff is advised that, following payment of the initial partial filing fee, the 

next step in Plaintiff’s 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). The Court will conduct this initial review in its normal course of business.

Dated this 9th day of June, 2023.

BY THE COURT:

Joseph F. Bataillon

Senior United States District Court

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