Hines v. Kaemingk et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
NICHOLAS STEWART HINES,
Plaintiff,
vs.
DENNIS KAEMINGK, SECRETARY OF
CORRECTIONS; OFFICIAL CAPACITY;
INDIVIDUAL CAPACITY; DARIN YOUNG,
WARDEN, SOUTH DAKOTA STATE
PENITENTIARY; OFFICIAL CAPACITY;
INDIVIDUAL CAPACITY; CODY HANSON,
UNIT/CASE MANAGER, SDSP; OFFICIAL
CAPACITY; INDIVIDUAL CAPACITY;
MELISSA MATURAN, ADMINISTRATIVE
REMEDY COORDINATOR,SDSP; OFFICIAL
CAPACITY;INDIVIDUAL CAPACITY; JODY
JOHNSON, YANKTON COUNTY CLERK OF
COURTS; IN BOTH OFFICIAL AND
INDIVIDUAL CAPACITIES; BRANDON
LABRIE, UNIT/CASE MANAGER &
UNIT/COORDINATOR SDSP; IN BOTH
OFFICIAL AND INDIVIDUAL CAPACITIES;
JANE OR JOHN DOE,IN BOTH INDIVIAUL
AND OFFICIAL CAPACITIES; AND
YANKTON COUNTY, IN BOTH
INDIVIDUAL AND OFFICIAL CAPACITIES;
Defendants.
4:19-CV-04108-LLP
ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
On June 26,2019,Plaintiff Nicholas Stewart Hines filed a pro se civil rights lawsuit under
42 U.S.C. § 1983 and requested leave to proceed in forma pauperis under 28 U.S.C. § 1915.
Dockets 1 and 2.
Under the Prison Litigation Reform Act(PLRA), a prisoner who "brings a civil action or
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). The court may, however, accept partial payment ofthe initial filing fee
where appropriate. Therefore,"'[wjhen an inmate seeks pauper status, the only issue is whether
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the inmate pays the entire fee at the initiation ofthe proceedings or over a period oftime under
an installment plan.'" Henderson v. Norris, 129 F.3d 481,483 (8th Cir. 1997)(quoting McGore
V. Wrigglesworth, 114 F.3d 601,604(6th Cir. 1997)).
The initial partial filing fee that accompanies an installment plan is calculated according
to 28 U.S.C.§ 1915(b)(1), which requires a payment of20 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.
Hines has reported average monthly deposits to his prisoner trust accoimt of$145.00 and an
average monthly balance of $17.05. Docket 8. Based on this information,the court grants
Hines leave to proceed in forma pauperis provided he pays an initial partial filing fee of $29.00,
which is 20 percent of $145.00. Hines must pay this initial partial filing fee by August 12, 2019.
If the court does not receive payment by this deadline, this matter will be dismissed. Hines may
request an extension oftime if needed.
In addition to the initial partial filing fee, Hines must "make monthly payments of
20 percent ofthe 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 ofthe 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 accoimt. The agency having custody of the prisoner shall forward
payments from the prisoner's account to the clerk ofthe 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 ofthe initial partial filing fee, the
remaining installments will be collected pursuant to this procedure.
The clerk ofthe court ivill send a copy ofthis order to the appropriate financial official
at Hines's institution. Hines 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 528, 529-30
(8th Cir. 1997). Accordingly,
IT IS ORDERED:
1. Hines's motion for leave to proceed in forma pauperis(Docket 2)is granted. Hines
will make an initial partial payment of$29.00 by August 12,2019, made payable
to the Clerk, U.S. District Court. If the initial partial filing fee is not received by the
specified deadline, the case will be dismissed.
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2.
3.
4.
After payment of the initial partial filing fee, Hines's institution will collect the
additional monthly payments in the manner set forth in 28 U.S.C.§ 1915(b)(2),
quoted above, and will forward those installments to the court until the $350 filing
fee is paid in full.
The clerk ofthe court is directed to send a copy ofthis order to the appropriate
official at Hines's institution.
The clerk ofthe court is directed to set a pro se case management deadline in this
case using the following text: August 12, 2019: initial partial filing fee payment due.
nines will keep the court informed of his current address at all times. All parties are bound
by the Federal Rules of Civil Procedure and by the court's Local Rules while this case is
pending.
I
DATED July 12^*2019.
ATTEST:
MATTHEW W. THELEN,CLEI
BY:
BY THE COURT:
^WRENCE L. PIERSOL
lited States District Judge
(SEAL) DEPUTY
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