Waliezer v. Howell et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
JrlLiiiD
JAM 1 -i 2322
SHANE D. WALIEZER, I:2I-CV-0I027-CBK
Plaintiff,
vs.
BRAD HOWELL,Sheriff Codington
County, professionally and individually;
OFFICER JOHN DOE #1, Deputy Sheriff
Codington County, professionally and
individually; and OFFICER JOHN DOE #2,
Deputy Sheriff Codington County,
professionally and individually;
ORDER FOR COLLECTION OF
APPELLATE FILING FEE
Defendants.
Plaintiff, a pre-trial detainee, filed a pro se complaint under 42 U.S.C. § 1983. His
application to proceed informa pauperis without the prepayment ofthe filing fee was
denied because plaintiff had been assessed three strikes pursuant to 28 U.S.C. § 1915(g).
Plaintiff filed a motion to vacate that order on the basis that this action was filed before
the third strike was assessed. Prior to a ruling on his motion to vacate, plaintiff filed an
interlocutory appeal ofthe order denying his application to proceed informa pauperis.
While that order was on appeal, I vacated the order, authorized plaintiff to proceed in
forma pauperis, and dismissed the complaint upon initial review for failure to state a
claim upon which relief could be granted pursuant to 28 U.S.C. § 1915A(b)(l).
I denied Plaintiffs application to proceed on appeal informa pauperis because his
appeal was premature and because the order that he appealed from was vacated, thus
rendering his premature appeal moot. The United States Court of Appeals denied
plaintiffs application to proceed on appeal informa pauperis because plaintiff had three
strikes prior to filing the appeal. Waliezer v. Howell. et al. 8th Cir. No. 21-3539
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(November 10, 2021). Plaintiff was ordered to pay the appellate filing fee or
demonstrate eligibility to proceed on appeal informa pauperis. He failed to do so.
The Eighth Circuit dismissed his appeal and remanded the case to this Court for the
collection ofthe appellate filing fee. Waliezer v. Howell. et al. 8th Cir. No. 21-3539
(January 3,2022).
"[T]he assessment of appellate filing fees occurs upon the filing of a notice of
appeal or the filing of a motion to proceed in forma pauperis ... and fixes
responsibility for payment sooner or later ofthe fees in full." Henderson v. Norris.
129 F.3d 481,484(8th Cir. 1997). "Irrespective ofthe court's approach to the merits
ofthe appeal, the prisoner's liability for the full payment ofthe appellate filing fees
under the PLRA continues until full payment has been made which may be long after
we have disposed ofthe appeal." Id. Plaintiff must pay the full $505.00 appellate
filing fee. Plaintiff is unable to pay an initial partial filing fee as required by 28
U.S.C. § 1915(b)(1). He is allowed, under 28 U.S.C. § 1915(b)(2)to pay the full
amount ofthe filing fee in installments.
Now,therefore,
IT IS ORDERED:
1. Plaintiff shall pay the full amount ofthe $505.00 appellate filing fee and
may do so by paying in installments.
2. Pursuant to 28 U.S.C. § 1915(b)(2), whenever the amount in plaintiffs prison
trust account exceeds $10.00, the institution having custody ofthe plaintiff is hereby
directed to forward monthly payments that equal 20% ofthe funds credited the preceding
month to the plaintiffs trust account to the U.S. District Court for the District of South
Dakota Clerk of Court until the $505.00 appellate filing fee is paid in full.
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3. The Clerk of Court shall send a copy ofthis order to the appropriate official at
the institution where plaintiff is incarcerated.
DATED this of January, 2022.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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