United States District Court, D. South Dakota, Central Division
ORDER GRANTING MOTION FOR LEAVE TO PROCEED WITHOUT
PREPAYMENT OF FEES, DENYING MOTION TO APPOINT COUNSEL, AND
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
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
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.
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).
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.
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).
Motion to Proceed Without Prepayment of Fees
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)).
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
(B) the average monthly balance in the prisoner's account
for the 6-month period immediately preceding the filing of