Hines v. Kaemingk et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
NICHOLAS STEWART HINES, 4:I9-CV-04I08-LLP
Plaintiff,
vs.
JODY JOHNSON,YANKTON COUNTY
CLERK OF COURTS, in her individual
capacity, AND JANE OR JOHN DOE(S), in
their individual capacities.
SUA SPONTE ORDER ALLOWING
PLAINTIFF TO PROCEED IN FORMA
PAUPERIS ON APPEAL
Defendants.
Plaintiff, Nicholas Stewart Hines, filed a pro se civil rights lawsuit under 42 U.S.C. §
1983. Doc. 1. This Court granted defendant Jody Johnson's motion for summary judgment, and
judgment was entered in her favor. Docs. 103, 104. Hines filed a notice of appeal. Doc. 106. At
this time, Hines has not moved for leave to proceed in forma pauperis on appeal and has not
provided the Court with an updated prisoner trust account report.
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). This
obligation arises "the moment the prisoner ... files an appeal." Henderson v. Norris, 129 F.3d
481,483(8th Cir. 1997)(per curiam)(omission in original)(quoting In re Tyler, 110 F.3d 528,
529-30(8th Cir. 1997))."[Wjhen an inmate seeks pauper status, the only issue is whether the
inmate pays the entire fee at the initiation ofthe proceeding or over a period oftime under an
installment plan." Id.(quoting McGore v. Wrigglesworth, 114 F.3d 601,604(6th Cir. 1997)).
"[Pjrisoners who appealjudgments in civil cases must sooner or later pay the appellate filing
I
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fees in full." Id. (citing Newlin v. Helman, 123 F.3d 429,432(7th Cir. 1997)). Because Hines 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 ofappeal.
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).
It appears that Hines's appeal is taken in good faith. His most recent prisoner trust
account report shows an average monthly deposit of$163.33 and an average monthly balance of
$62.29. Doc. 75 at 1. His current balance is $28.57. This Court grants Hines leave to proceed in
forma pauperis and waives his initial partial filing fee because the initial partial filing fee would
be greater than his current balance.
Accordingly, it is ORDERED:
1. That this Court sua sponte grants Hines leave to proceed in forma pauperis on appeal.
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2. That the institution having custody of Hines is directed that whenever the amount in
Hines's trust account,exclusive offunds 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 this 25th day of April, 2022.
BY THE COURT;
id	ICJUMjulux
CaWence L. Piersol
ATTEST: United States District Judge
MATTHEW W. THELEN,CLERK
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