Newman v. Gilchrist et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CHARLES NEWMAN,
Plaintiff,
vs.
TOM GILCHRIST, Case Manager – Sex
Offender Management Program, in his
individual and official capacity;
BRENNA CARLSON, Program Manager
– Sex Offender Management Program,
in her individual and official capacity;
BRENT FLUKE, Warden of State of
South Dakota State Penitentiary, in his
individual and official capacity;
GORDON SWANSON, South Dakota
Board of Pardons and Paroles – Non-
Compliance Panel, in his individual and
official capacity; MYRON RAU, South
Dakota - Board of Pardons and Paroles
– Non Compliance Panel, in his
individual and official capacity; DEBRA
EILERS, Barrack Case Manager, of
South Dakota – Department of
Corrections, in her individual and
official capacity,
Defendants.
4:22-CV-04155-KES
ORDER REQUIRING PLAINTIFF TO
FILE A PRISONER TRUST ACCOUNT
REPORT
Plaintiff, Charles Newman, an inmate at the Mike Durfee State Prison,
filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Docket 1. Newman
filed a motion for leave to proceed in forma pauperis, but he has not filed a
prisoner trust account report. See Docket 2. Newman has also paid $350
towards his filing fee.
Case 4:22-cv-04155-KES Document 8 Filed 01/04/23 Page 1 of 3 PageID #: <pageID>

2
I. 	Motion for Leave to Proceed In Forma Pauperis
Under the Prison Litigation Reform Act, 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 of the initial filing fee where appropriate. Thus, “[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.” Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (per
curiam) (alteration in original) (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 of 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.
Newman has not submitted a prisoner trust account report. The total
civil complaint filing fee is $402. Because litigants who are granted leave to
proceed in forma pauperis do not have to pay the $52 administrative fee, they
only owe $350. Thus, if Newman is granted leave to proceed in forma pauperis,
his $350 payment would satisfy his entire filing fee. But this court cannot
evaluate Newman’s motion for leave to proceed in forma pauperis without a
completed prisoner trust account report. Newman must submit a completed
Case 4:22-cv-04155-KES Document 8 Filed 01/04/23 Page 2 of 3 PageID #: <pageID>

3
prisoner trust account report or, in the alternative, pay the remaining $52
owed by February 6, 2023. Failure to comply will result in dismissal without
prejudice of Newman’s complaint for failure to prosecute.
Thus, it is ORDERED:
1. 	That the Clerk of Court will send Newman a prisoner trust account
report.
2. 	That Newman must return the completed prisoner trust account
report or pay the remaining $52 owed by February 6, 2023. If
Newman 	fails 	to 	comply 	with 	this 	order, 	his 	complaint 	will 	be
dismissed without prejudice for failure to prosecute.
Dated January 4, 2023.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
Case 4:22-cv-04155-KES Document 8 Filed 01/04/23 Page 3 of 3 PageID #: <pageID>