The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING IN FORMA PAUPERIS STATUS, FILING COMPLAINT, REFERRING CASE, AND DIRECTING SERVICE
Plaintiff, Randy Rindahl, moves to proceed in forma pauperis (Docket 4). The Prison Litigation Reform Act, 28 U.S.C. § 1915(g) states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
Plaintiff has previously proceeded in forma pauperis in at least four civil actions in the District of South Dakota pursuant to 42 U.S.C. § 1983, which have either been dismissed as frivolous or because of failure to state a claim. These cases were filed in this court as civil docket numbers 09-4085, 96-4117, 96-4116, and 95-4207. Accordingly, plaintiff has had at least three prior "strikes" pursuant to 28 U.S.C. § 1915(g) and, therefore, is not eligible to proceed in forma pauperis in any civil action unless there is imminent danger of serious physical injury.
Plaintiff's complaint is very difficult to follow. It appears, however, that plaintiff alleges that in 2003, correctional personnel entered his cell while he was sleeping and used excessive force to injure his neck. He has had multiple x-rays after 2003 and is currently experiencing numbness in his neck and running down his arms. In December of 2009, Dr. Shaeffer referred him for consultation with a neurosurgeon and noted that Rindahl's x-rays indicate he has a grossly deformed cervical vertebrae with almost complete obliteration of the intervertebral space. Dr. Shaeffer states that surgery may be necessary. Rindahl provided further documentation as of February 9, 2010, that he has not received follow-up care, including an appointment with a neurosurgeon.
Plaintiff's allegation that he has been denied treatment for his injured neck meets the imminent-danger exception in § 1915(g). See McAlphin v. Toney, 281 F.3d 709, 710-11 (8th Cir. 2002) (plaintiff's allegations of five tooth extractions that had been delayed, and spreading tooth infection, were sufficient to meet imminent-danger exception).
Because plaintiff's complaint meets the imminent-danger exception, the court will review whether plaintiff is entitled to proceed in forma pauperis. The Prison Litigation Reform Act, 28 U.S.C. 1915, requires prisoners to make an initial partial filing payment where possible. Determination of the partial filing fee 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.
Plaintiff has reported an average monthly deposit to his prisoner trust account for the past six months of $33.33, and an average monthly balance in his account of $48.53. Therefore, plaintiff is required to pay $9.70, which equals 20 percent of $48.53, to proceed with this action.
Plaintiff next moves for appointment of counsel. Whether counsel should be appointed is discretionary with the court. The "court should consider the complexities of the legal issues raised, the difficulty of the alleged factual controversy prevented, and the overall background of the individual petitioner." Cates v. Ciccone, 422 F.2d 926, 927 (8th Cir. 1970). At this stage, the legal issues do not appear complex and the facts do not appear difficult or disputed. Thus, plaintiff's motion for appointment of counsel is denied without prejudice.
Accordingly, it is hereby
ORDERED that plaintiff's motion to proceed in forma pauperis (Docket 4) is granted. Plaintiff shall make an initial partial filing fee of $9.70 before March 18, 2010, ...