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Fox v. State of South Dakota

United States District Court, D. South Dakota, Central Division

April 26, 2017

KENNETH ALLAN FOX, Plaintiff,
v.
STATE OF SOUTH DAKOTA, CHIEF WARDEN DOOLEY/STATE PENITENTIARY, JUDICIARY OF SOUTH DAKOTA SYSTEM, CO NYREEN, STATE ASST ATTY GENERAL KEMPEMA, ATTY GENERAL M. JACKLEY, TREASURER, P. KINSMAN, ASSOCIATE WARDEN ALLCOCK, CHIEF JUSTICE GILBERTSON, ATTORNEY JAMIE DAMON, AGENT BUSHKO, Defendants.

          ORDER GRANTING MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF FEES, DENYING MOTION TO APPOINT COUNSEL, AND DISMISSING COMPLAINT.

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.

         Plaintiff Kenneth Allan Fox ("Fox") filed this lawsuit pursuant to 42 U.S.C. § 1983. Doc. 1. Fox is an inmate at the South Dakota State Penitentiary in Sioux Falls. This court has screened his complaint pursuant to 28 U.S.C. § 1915A. For the following reasons, the court grants Fox's motion for leave to proceed without prepayment of fees, denies his motion to appoint counsel, and dismisses his complaint.

         I. PROCEDURAL BACKGROUND

         Fox filed this complaint on April 10, 2017. Doc. 1. He alleges that certain defendants violated his rights after he brought a habeas petition in state court. Id. at 6. He also alleges that defendants at SDSP violated his rights by refusing to send his legal mail to the court. Id. at 5-6. Along with his complaint, Fox moves for leave to proceed without prepayment of fees, Doc. 4, and moves the court to appoint counsel. Doc. 5.

         II. LEGAL STANDARD

         At this stage of the case, this Court must accept the well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014). Civil rights and pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). Even with this construction, "a pro se complaint must contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985); Ellis.v. City of Minneapolis, 518 F.App'x 502, 504 (8th Cir. 2013). Civil rights complaints cannot be merely conclusory. Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993); Parker v. Porter, 221 F.App'x 481, 482 (8th Cir. 2007).

         A complaint "does not need detailed factual allegations . . . [but] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "If a plaintiff cannot make the requisite showing, dismissal is appropriate." Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985).

         Under 28 U.S.C. § 1915A, this Court must screen prisoner claims filed in forma pauperis and determine whether they are (1) "frivolous, malicious, or fail[] to state a claim on which relief may be granted; or (2) seek[] monetary relief from a defendant who is immune from such relief." See also Onstad v. Wilkinson, 534 F.App'x 581, 582 (8th Cir. 2013).

         III. DISCUSSION

         A. Motion to Proceed Without Prepayment of Fees

         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 of the initial filing fee where appropriate. Therefore, " '[w]hen an inmate seeks pauper status, the only issue is whether the inmate pays the entire fee at the initiation of the proceedings or over a period of time 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 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 ...

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