Christians v. Young et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MARK CHRISTIANS,
Plaintiff,
vs.
DARRIN YOUNG,CHIEF WARDEN SDDOC
PRISONS,INDIVIDUAL AND OFFICIAL
CAPACITY; TROY PONTO,DEPUTY
WARDEN SDSP,INDIVIDUAL AND
OFFICIAL CAPACITY; JESSICA COOK,
ASSOCIATE WARDEN SDSP/JAMESON,
INDIVIDUAL AND OFFICIAL CAPACITY;
BRENT FLUKE, WARDEN MDSP,
INDIVIDUAL AND OFFICIAL CAPACITY;
REBECCA SCHIEFFER, ASSOCIATE
WARDEN MDSP,INDIVIDUAL AND
OFFICIAL CAPACITY; ALEX REYES,
ASSOCIATE WARDEN MDSP,INDIVIDUAL
AND OFFICIAL CAPACITY; CODY
HANSON, UNIT MANAGER JAMESON,
INDIVIDUAL AND OFFICIAL CAPACITY;
SETH HUGHES,UNIT MANAGER
JAMESON,INDIVIDUAL AND OFFICIAL
CAPACITY; NANCY CHRISTENSEN, UNIT
MANGAER MDSP,INDIVIDUAL AND
OFFICIAL CAPACITY; LT. MADDOX,
LIEUTENANT MDSP,INDIVIDUAL AND
OFFICIAL CAPACITY; D.EKEREN,UNIT
COORDINATOR JAMESON,INDIVIDUAL
AND OFFICIAL CAPACITY; DEB EILERS,
UNIT COORDINATOR MDSP,INDIVIDUAL
AND OFFICIAL CAPACITY; LAURIE
STRATMAN,UNIT COORDINATOR MDSP,
INDIVIDUAL AND OFFICIAL CAPACITY;
JULIE STEVENS,CASE MANAGER MDSP,
INDIVIDUAL AND OFFICIAL CAPACITY;
JARED, CBM/SUMMIT SITE MANAGER
MDSP,INDIVIDUAL AND OFFICIAL
CAPACITY; KELLY,CBM/SUMMIT FOOD
SERVICES WORKER MDSP,INDIVIDUAL
4:20-CV-04083-LLP
SUA SPONTE ORDER ALLOWING
PLAINTIFF TO PROCEED IN FORMA
PAUPERIS ON HIS INTERLOCUTORY
APPEAL
Case 4:20-cv-04083-LLP Document 61 Filed 06/29/21 Page 1 of 4 PageID #: <pageID>

AND OFFICIAL CAPACITY; JOHN
TRIEWEILER,SUMMIT DISTRICT
MANAGER,INDIVIDUAL AND OFFICIAL
CAPACITY; KEVIN TRIERWEILER, SITE
MANAGER JAMESON,INDIVIDUAL AND
OFFICIAL CAPACITY;PAMELA THOMAS,
EXECUTIVE CHEF,SUMMIT
CORRECTIONS,INDIVIDUAL AND
OFFICIAL CAPACITY; UNNAMED SUMMIT
LICENSED DIETITIAN(S),INDIVIDUAL
AND OFFICIAL CAPACITY; DIETARY
ASSISTANTS,INDIVIDUAL AND OFFICIAL
CAPACITY; DIRECTORS OF OPERATIONS,
INDIVIDUAL AND OFFICIAL CAPACITY;
DISTRICT MANAGERS,INDIVIDUAL AND
OFFICIAL CAPACITY; FOOD SERVICE
DIRECTORS,INDIVIDUAL AND OFFICIAL
CAPACITY; ASSISTANT FOOD SERVICE
DIRECTORS,INDIVIDUAL AND OFFICIAL
CAPACITY; FOOD SERVICE WORKERS,
INDIVIDUAL AND OFFICIAL CAPACITY;
JUSTIN BARTHEL,DIRECTOR OF
DIETARY SUMMIT,INDIVIDUAL AND
OFFICIAL CAPACITY; AND MIKE
LEIDHOLT,SECRETARY OF THE
DEPARTMENT OF CORRECTIONS,IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
Defendants.
Plaintiff, Mark Christians, filed a pro se lawsuit under 42 U.S.C. § 1983. Doc. 26. This
Court granted Marlin C. Sejnoha, Naomi McLaughlin, Jeff Green, and Shane Sejnoha's motion
to dismiss and judgment was entered in their favor. Docs. 54, 55. Christians filed a notice of
appeal on June 18, 2021. Doc. 56. At this time, Christians has not moved for leave to proceed in
forma pauperis on his interlocutory appeal and has not provided the Court with an updated
prisoner trust account.
Under the Prison Litigation Reform Act(PLRA)a prisoner who "files an appeal in
forma pauperis ...[is] required to pay the full amount of a filing fee." 28 U.S.C. § 1915(b)(1).
2
Case 4:20-cv-04083-LLP Document 61 Filed 06/29/21 Page 2 of 4 PageID #: <pageID>

This obligation arises"'the moment the prisoner ... files an appeal.'"Henderson v. Morris,
129 F.3d 481,483 (8th Cir. 1997)(quoting In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997)).
"'When an inmate seeks pauper status, the only issue is whether the inmate pays the entire fee
at the initiation ofthe proceedings or over a period oftime under an installment plan.'"Id.
(quoting McGore v. Wrigglesworth, 114 F.3d 601, 604(6th Cir. 1997)). "[PJrisoners who
appeal judgments in civil cases must sooner or later pay the appellate filing fees in full." Id.
(citing v. Helman, 123 F.3d 429,432(7th Cir. 1997)). Because Christians is a prisoner
under the PLRA,this Court is required to sua sponte assess whether he should be granted leave
to proceed in forma pauperis on appeal or whether the full/partial filing fee is warranted before
he continues.
In Henderson, the Eighth Circuit set forth "the procedure to be used to assess, calculate,
and collect" appellate filing fees in compliance with the PLRA. 129 F.3d at 483. First, the court
must determine whether the appeal is taken in good faith. Id. at 485 (citing 28 U.S.C.
§ 1915(a)(3)). Then, so long as the prisoner has provided the court with a certified copy of his
prisoner trust account, the court must "calculate the initial appellate partial filing fee as provided
by § 1915(b)(1), or determine that the provisions of § 1915(b)(4) apply." Id. The initial partial
filing fee must be 20 percent ofthe greater of;
(A) the average monthly deposits to the prisoner's account; or
(B) the average monthly balance in the prisoner's account for the 6-month period
immediately preceding the filing ofthe complaint or notice of appeal.
28 U.S.C. § 1915(b)(1). Nonetheless, no prisoner will be "prohibited fi-om ;. . 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).
Case 4:20-cv-04083-LLP Document 61 Filed 06/29/21 Page 3 of 4 PageID #: <pageID>

It appears that Christians's interlocutory appeal is taken in good faith. His account
shows an average monthly deposit of $94.96, and an average monthly balance of$37.72. Doc.
3. This Court grants Christians leave to proceed in forma pauperis and waives his initial partial
filing fee.
Accordingly, it is ORDERED:
1. That this Court sua sponte grants Christians leave to proceed in forma pauperis on his
interlocutory appeal.
2. That the institution having custody of Christians is directed that whenever the amount
in Christians's trust account, exclusive of ftinds available to him in his fix)zen account,
exceeds $10, monthly payments that equal 20 percent ofthe funds credited to the
account the preceding month shall be forwarded to the United States District Court
Clerk's office pursuant to 28 U.S.C.§ 1915(b)(2), until the appellate filing fee of$505
is paid in full.
DATED June 29,2021.
BY THE COURT:
ATT^T: (CUiJLUUX
iwrence L. Piersol
United States District Judge
Case 4:20-cv-04083-LLP Document 61 Filed 06/29/21 Page 4 of 4 PageID #: <pageID>