IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA IN RE: PRO SE, PRISONER, ) IN FORMA PAUPERIS, HABEAS ) CORPUS and SECTION 2255 ) GENERAL ORDER 97-_____ CASES ) The active district judges of this court have reviewed such cases as Porter v. Fox, 99 F.3d 271 (8th Cir. 1996), Hake v. Clarke, 91 F.3d 1129 (8th Cir. 1996) and Carney v. Houston, 33 F.3d 893 (8th Cir. 1994). Moreover, we have reviewed 28 U.S.C.  1915 and 1915A (1996). Still further, we have considered other issues that have arisen during this review. Because of such review, and to make needed changes, IT IS ORDERED that: Withdrawal of Certain Local Rules/Adoption of Operating Procedures 1. NELR 3.4 at 779-80 (West 1997) (relating to proceedings by persons without counsel) and NELR 3.5 at 780-81 (West 1997) (relating to applications to proceed in forma pauperis) are withdrawn. The following procedures are adopted as internal operating procedures of this court regarding the matters addressed in this order. These procedures may be changed from time to time without notice. Inquiries regarding the status of this order or related orders should be directed to the Clerk. Scope of Order 2. This order pertains to: (a) all civil cases filed by a party without counsel (pro se); (b) all civil cases submitted by a person who is a prisoner as defined by 28 U.S.C.  1915A(c) at the time of the filing of the action whether represented by counsel or not so represented; (c) all civil cases submitted by a person who requests that the filing fee be waived in whole or in part pursuant to 28 U.S.C.  1915(a) (in forma pauperis cases) whether represented by counsel or not so represented; (d) all actions, no matter how categorized, submitted by a person seeking relief under 28 U.S.C.  2255 whether represented by counsel or not so represented; (e) all actions, no matter how categorized, submitted by a person seeking habeas corpus relief whether represented by counsel or not so represented. No Review of Civil Complaints: (i) Which are Paid (ii) Which are Signed Pro Se, and (iii) Which are Filed by a Non-Prisoner 3. A civil complaint, for which the filing fee has been paid, signed by a party who is not a lawyer (pro se), and submitted by a party who is not a prisoner as defined by 28 U.S.C.  1915A(c) at the time of the filing of the complaint, will be treated the same as a paid complaint filed by a plaintiff whom a lawyer represents. In particular, such a complaint will not be subject to sua sponte review for the purposes of determining whether such a complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6). Initial and Subsequent Review of Civil Complaints: (i) Which are Not Paid (ii) Which are Signed Pro Se or by Counsel, and (iii) Which are Filed by a Non-Prisoner 4. Whether pro se or through counsel, a civil complaint for which the filing fee has not been fully paid, accompanied by a request to proceed in forma pauperis, by a person who is not a prisoner as defined by 28 U.S.C.  1915A(c) at the time of the filing of the complaint, will be subject to sua sponte initial review by the court to determine: (a) pursuant to 28 U.S.C.  1915(a)(1), if the affidavit establishes that such person is unable to pay the filing fee or give security therefor; (b) pursuant to 28 U.S.C.  1915(e)(2)(B)(i), if the complaint is frivolous or malicious; that is, whether the complaint lacks an arguable basis in law or fact. After such initial review, the court may subsequently review and dismiss such a case, sua sponte or upon motion of a party, if: (a) pursuant to 28 U.S.C.  1915(e)(2)(A), the allegation of poverty is untrue; (b) pursuant to 28 U.S.C.  1915(e)(2)(B)(i), the action is frivolous or malicious. Initial and Subsequent Review of Civil Complaints: (i) Which are Paid (ii) Which are Signed Pro Se or by Counsel, and (iii) Which are Filed by a Prisoner 5. Whether pro se or through counsel, a civil complaint for which the filing fee has been paid, which is submitted by a person who is a prisoner as defined by 28 U.S.C.  1915A(c) at the time of the filing of the complaint, will be subject to sua sponte initial review by the court to determine: (a) pursuant to 28 U.S.C.  1915A(b)(1), if the complaint is frivolous or malicious; that is, whether the complaint lacks an arguable basis in law or fact; (b) pursuant to 28 U.S.C.  1915A(b)(1), if the complaint fails to state claim upon which relief can be granted; (c) pursuant to 28 U.S.C.  1915A(b)(2), if the complaint seeks monetary relief from a defendant who is immune for such relief. On such review, the court will identify the cognizable claims or dismiss the complaint, or any portion of the complaint, which is frivolous, malicious, fails to state a claim or seeks monetary relief against a defendant who is immune from such relief. After such initial review, the court may subsequently review and dismiss such a case, sua sponte or upon motion of a party, and notwithstanding the payment of the filing fee, if: (a) pursuant to 28 U.S.C.  1915(e)(2)(B)(i), the court finds the complaint is frivolous or malicious; (b) pursuant to 28 U.S.C.  1915(e)(2)(B)(ii), the court finds the complaint fails to state a claim on which relief may be granted; (c) pursuant to 28 U.S.C.  1915(e)(2)(B)(iii), the court finds the complaint seeks monetary relief against a defendant who is immune from such relief. Initial and Subsequent Review of Civil Complaints: (i) Which are Not Paid (ii) Which are Signed Pro Se or by Counsel, and (iii) Which are Filed by a Prisoner 6. Whether pro se or through counsel, a civil complaint for which the filing fee has not been fully paid, accompanied by a request to proceed in forma pauperis, which is submitted by a person who is a prisoner as defined by 28 U.S.C.  1915A(c) at the time of the filing of the complaint, will be subject to sua sponte initial review by the court to determine: (a) pursuant to 28 U.S.C.  1915(a)(1), if the affidavit establishes that such person is unable to pay the filing fee or give security therefor; (b) pursuant to 28 U.S.C.  1915A(b)(1), if the complaint is frivolous or malicious; that is, whether the complaint lacks an arguable basis in law or fact; (c) pursuant to 28 U.S.C.  1915A(b)(1), if the complaint fails to state claim upon which relief can be granted; (d) pursuant to 28 U.S.C.  1915A(b)(2), if the complaint seeks monetary relief from a defendant who is immune from such relief. On such review, the court will determine whether the person should be granted leave to proceed in forma pauperis. If leave to proceed in forma pauperis is granted, a partial filing fee shall be required if such a partial filing fee is required by 28 U.S.C.  1915(b)(1). The court will also identify the cognizable claims or dismiss the complaint, or any portion of the complaint, which is frivolous, malicious, fails to state a claim or seeks monetary relief against a defendant who is immune from such relief. After such initial review, the court may subsequently review and dismiss such a case, sua sponte or upon motion of a party, and notwithstanding the payment of a full or partial filing fee, if: (a) pursuant to 28 U.S.C.  1915(e)(2)(A), the allegation of poverty is untrue; (b) pursuant to 28 U.S.C.  1915(e)(2)(B)(i), the court finds the complaint is frivolous or malicious; (c) pursuant to 28 U.S.C.  1915(e)(2)(B)(ii), the court finds the complaint fails to state a claim on which relief may be granted; (c) pursuant to 28 U.S.C.  1915(e)(2)(B)(iii), the court finds the complaint seeks monetary relief against a defendant who is immune from such relief. Initial and Subsequent Review of Habeas Corpus Petitions and 28 U.S.C.  2255 Motions 7. Whether pro se or by counsel and notwithstanding the payment of any filing fee, habeas corpus petitions shall be initially and subsequently reviewed pursuant to the Rules Governing Habeas Corpus Cases, and, to the extent applicable, 28 U.S.C.  1915 & 1915A. Whether pro se or by counsel and notwithstanding the payment of any filing fee, motions pursuant 28 U.S.C.  2255 shall be initially and subsequently reviewed pursuant to the Rules Governing Motions Attacking Sentences, and, to the extent applicable, 28 U.S.C.  1915 & 1915A. Authorization of Magistrate Judges to Conduct Reviews and Issue Orders/Directions to Clerk 8. Except as may otherwise be ordered in specific cases, all reviews authorized by this order will be conducted by magistrate judges who shall issue such reports and recommendations and orders as may be appropriate. The assignment of particular magistrate judges to conduct reviews will be according to such assignment procedures as the court may adopt from time to time. It is the responsibility of the Clerk to deliver the file to the appropriate magistrate judge to conduct the reviews required by this order. Pro Se Compliance with Rules 9. Except as otherwise provided by NELR 15.1 at 785 (West 1997), all litigants proceeding pro se shall be bound by and comply with all local rules of the court, and all other applicable rules, such as the Federal Rules of Criminal or Civil Procedure. Financial Affidavit and Trust Account Statement 10. All applications to proceed in forma pauperis (to proceed without full or by partial payment of the filing fee) shall be accompanied by a financial affidavit substantially in the form prescribed by the court. The affidavit shall comply with 28 U.S.C.  1915(a) and shall disclose the applicant's income, assets, expenses, and liabilities, as applicable. In addition, any person who is a prisoner as defined by 28 U.S.C.  1915A(c) at the time of the filing of the complaint or petition, and who is seeking leave to proceed in forma pauperis, shall submit or authorize the submission of a certified copy of his or her trust account in conformity with 28 U.S.C.  1915(a)(2). If the required trust account does not accompany the application, the court may provisionally allow the applicant to proceed in forma pauperis, and the Clerk shall request such information from the institution and/or the applicant. The filing of an application to proceed in forma pauperis is consent of the applicant for the institution to release the required trust account information to the Clerk, and is consent of the applicant to payment by the institution of any required filing fee. If more than one person brings the action for which leave to proceed in forma pauperis is being requested, each person who is a plaintiff or petitioner shall file an application, affidavit, and trust account statement (if required for prisoners). The failure of a party to submit the required affidavit or trust account information in a timely fashion if available to him or her shall warrant denial of the application. The failure of an institution to provide the required trust account information in a timely fashion is a waiver of an objection by that institution and any related party of any action taken by the court regarding the payment, partial payment or nonpayment of the filing fee. Partial Filing Fees 11. Until fully paid, and despite dismissal of the case after leave to proceed in forma pauperis has been granted, the court shall collect and continue to collect the filing fee required by 28 U.S.C.  1915(b) from all persons who are prisoners as defined by 28 U.S.C.  1915A(c) at the time of the filing of the complaint or petition and for whom leave to proceed in forma pauperis has been granted. In the event leave to proceed in forma pauperis in the same case is requested by more than one person, any partial filing shall be computed for each person individually, provided that the partial filing fees required from such persons shall not, in the aggregate, exceed the full filing fee charged by the Clerk for that type of action. If the partial filing fees required from such persons would exceed, in the aggregate, the full filing fee, the fees shall be proportionately reduced to the amount of the full filing fee. If a case is dismissed before the full filing fee has been paid but after leave to proceed in forma pauperis has been granted, the Clerk shall continue to collect, and the applicable institution shall continue to pay, partial payments until the filing fee has been paid in full. At the time of dismissal of a case, the court shall also enter judgment against the in forma pauperis applicant or applicants jointly and severally in favor of the United States for the full amount of the unpaid filing fee unless such fees have been taxed as costs to an adverse party. Appointment of Counsel 12. Any person subject to this order may request the court to appoint counsel to represent him or her during the pendency of such proceeding. Request for appointment of counsel shall be made at the time of the filing of the original complaint or petition, or whenever the court may determine. In a case in which counsel has been appointed, all further pleadings and other communications with the court shall be made exclusively through counsel, unless otherwise specifically permitted by the court. Any further pro se pleadings or other communications submitted to the court may be returned, unfiled, to the sending party or, alteratively, may be forwarded to counsel for the sending party. If appointed counsel files a motion to withdraw, the court may, but need not, appoint substitute counsel. Nothing contained in this order will be construed as a limitation on the authority of the court to appoint counsel on its own motion. Consent to Apply Recovery to Fees and Costs/Expenses of Litigation 13. An application to proceed in forma pauperis is consent of the applicant and counsel that part of any recovery, as directed by the court, shall be paid to the Clerk, who will pay from it all unpaid fees and costs, including attorney fees, taxed against the applicant. The granting of an application to proceed in forma pauperis does not waive the applicant's responsibility to pay the expenses of litigation that are not waived by 28 U.S.C.  1915. Likewise, the appointment of counsel does not waive the pro se litigant's ultimate responsibility for such expenses. See NELR 83.4 at 806 (West 1997) (concerning counsel's duties and the availability of funds from the Federal Practice Fund). Assignment of Judge and Location of Filing 14. For cases governed by this order, judges will be assigned according to NELR 40.1(b) at 791-92 (West 1997). In order to provide for the prompt handling of cases governed by this rule, the complaints, motions or petitions subject to this order should be filed in the following places: (a) proceedings under 28 U.S.C.  2255 should be filed in the city in which the sentencing judge sits or sat at the time of sentencing; (b) except death penalty cases, petitions for writs of habeas corpus and civil rights complaints from persons incarcerated or institutionalized in Douglas, Sarpy, Washington and Dodge counties should be filed in Omaha; (c) except death penalty cases, petitions for writs of habeas corpus and civil rights complaints from persons incarcerated or institutionalized in counties other than Douglas, Sarpy, Washington or Dodge should be filed in Lincoln; (d) for all other cases, the place of filing may be either Omaha or Lincoln. In case of the filing of an action in an improper place, the Clerk shall transfer the action to the appropriate docket. Effective Date 15. This order shall become effective on the date indicated below. This order will govern all applicable proceedings brought in this court after this order becomes effective. This order will also apply to all actions pending at the time this order takes effect, except to the extent the application of this order, in the opinion of the judge deciding the issue, would not be feasible or would work injustice. Dated this____ day of __________, 1997. BY THE COURT: ____________________________ William G. Cambridge, Chief Judge _____________________________ Richard G. Kopf, Judge ____________________________ Thomas M. Shanahan, Judge