Childers v. Unknown P.D. Officer SFPD #1 et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
PRIEOR CHILDERS,
Plaintiff,
vs.
UNKNOWN P.D. OFFICER SFPD #1, in
his individual and official capacity;
MICHAEL MATTSON, Warden, in his
individual and official capacity;
UNKNOWN P.D. OFFICER SFPD #2, in
his individual and official capacity;
ROBERTS, Medical, in his or her official
capacity; HSA LUTHER, Medical, in his
or her official capacity; ALBERS, Sgt.,
in his or her official capacity,
Defendants.
4:22-CV-04001-KES
ORDER GRANTING PLAINTIFF’S
MOTION TO APPEAL WITHOUT
PREPAYMENT OF FEES
Plaintiff, Prieor Childers, an inmate at the Minnehaha County Jail, filed a
pro se civil rights lawsuit under 42 U.S.C. § 1983. Docket 1. Judgment was
entered against Childers, and he filed a notice of appeal. Dockets 24, 25. Now,
Childers moves to appeal without prepayment of fees and has provided his
prisoner trust account report. Dockets 26, 27.
Under the Prison Litigation Reform Act (the “Act”), a prisoner who “files
an appeal in forma pauperis . . . shall be required to pay the full amount of a
filing fee.” 28 U.S.C. § 1915(b)(1). This obligation arises “the moment the
prisoner . . . files an appeal.” Henderson v. Norris, 129 F.3d 481, 483 (8th Cir.
1997) (omission in original) (quoting In re Tyler, 110 F.3d 528, 529–30 (8th
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Cir. 1997)). “[W]hen an inmate seeks pauper status, the only issue is whether
the inmate pays the entire fee at the initiation of the proceeding or over a
period of time under an installment plan.” Id. (quoting McGore v.
Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997)). “[P]risoners who appeal
judgments in civil cases must sooner or later pay the appellate filing fees in
full.” Id. (citing Newlin v. Helman, 123 F.3d 429, 432 (7th Cir. 1997)).
In Henderson, the Eighth Circuit Court of Appeals set forth “the
procedure to be used to assess, calculate, and collect” appellate filing fees in
compliance with the Act. Id. 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 of the
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 of the complaint or
notice of appeal.
28 U.S.C. § 1915(b)(1). Nonetheless, no prisoner will be “prohibited from . . .
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).
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It appears that Childers’ appeal is taken in good faith. Because Childers’
prisoner trust account report (Docket 27) shows an average monthly deposit of
$7.73 and an average monthly balance of $0.14, the court finds that
§ 1915(b)(1) applies and waives his initial partial filing fee.
Thus, it is ORDERED:
1. That Childers’ motion for leave to appeal without prepayment of fees
(Docket 26) is granted.
2. That 	the 	institution 	having 	custody 	of 	Childers 	is 	directed 	that
whenever the amount in Childers’ trust account, exclusive of funds
available to him in his frozen account, exceeds $10, monthly payments
that equal 20 percent of the 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 7, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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