United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS AND GRANTING LEAVE TO AMEND
Lawrence L. Piersol, United States District Judge.
Chris Zacharias, is an inmate at the South Dakota State
Penitentiary (SDSP) in Sioux Falls. He filed a pro se civil
rights lawsuit pursuant to 42 U.S.C. § 1983 and moved to
proceed in forma pauperis. Docket 1; Docket 2. The Court has
now screened Zacharias' complaint pursuant to 28 U.S.C.
§ 1915A. For the reasons stated below, the Court grants
Zacharias' motion to proceed in forma pauperis and grants
him leave to amend his complaint.
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
the complaint or notice of appeal.
Zacharias reports average monthly deposits to his prisoner
trust account of 42<t and an average monthly balance of
negative $1094.49. Docket 3. Based on this
information, the Court grants Zacharias leave to proceed in
forma pauperis and waives his initial partial filing fee.
order to pay his filing fee, Zacharias must "make
monthly payments of 20 percent of the preceding month's
income credited to the prisoner's account." 28
U.S.C. § 1915(b)(2). The statute places the burden on
the prisoner's institution to collect the additional
monthly payments and forward them to the Court as follows:
After payment of the initial partial filing fee, the prisoner
shall be required to make monthly payments of 20 percent of
the preceding month's income credited to the
prisoner's account. The agency having custody of the
prisoner shall forward payments from the prisoner's
account to the clerk of the court each time the amount in the
account exceeds $10 until the filing fees are paid.
28 U.S.C. § 1915(b)(2). The installments will be
collected pursuant to this procedure.
clerk of the court will send a copy of this order to the
appropriate financial official at Zacharias's
institution. Zacharias will remain responsible for the entire
filing fee, as long as he is a prisoner, even if the case is
dismissed at some later time. See In re Tyler, 110
F.3d 528, 529-30 (8th Cir. 1997).
28 U.S.C. § 1915A, the Court must screen prisoner
complaints and dismiss them if they are "(1) frivolous,
malicious, or fail to state a claim upon which relief may
be gran ted [.]" 1915A(b). Although 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), "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).
fails to state a claim upon which relief may be granted. In
Count I, Zacharias states that "They" are not
letting him talk to "a white shirt" and tell him
they do not have to allow him to call one. Docket 1 at 4.
Zacharias does not explain who "they" are, who
white shirts are, when this happened, or how he was injured.
Therefore, Zacharias fails to state a claim upon which relief
may be granted, and Count I is dismissed.
Count II, Zacharias seeks to raise a claim against another
inmate at SDSP. Id. at 5. A plaintiff may bring a
§ 1983 suit against "[e]very person who" acts
"under color of any statute, ordinance, regulation,
custom or usage, of any State . . . ." 42 U.S.C. §
1983. Zacharias's complaint does not state facts to
suggest that his fellow inmate acted under the color of state