United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS,
DENYING MOTION TO APPOINT COUNSEL, DISMISSING COMPLAINT IN
PART AND DIRECTING SERVICE
Lawrence L. Piersol United States District Judge.
John David Abdo, Jr., is an inmate at the South Dakota State
Penitentiary in Sioux Falls. He filed a pro se lawsuit
pursuant to 42 U.S.C. § 1983 and requested leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Docket 1; Docket 3. For the following reasons, Abdo's
motion to proceed in forma pauperis is granted, his motion to
appoint counsel is denied, and his complaint is dismissed in
part and survives screening in part.
alleges that Charles Mix County sent two officers, Shane
Larson and Brian McGuire, to Wagner IHS in Indian Country in
order to arrest him without notifying the BIA. Docket 1 at 4.
He alleges that he was .arrested without a warrant and taken
to jail after a non-owner of his home gave the officers
consent to enter. Id. Abdo rented his room.
jail, the officers got a warrant for a urinary analysis.
Id. Abdo alleges that the warrant was obtained
unlawfully because he was not found with drugs in his
possession and did not have any other obligation to submit to
the urinary analysis. Id. McGuire threatened to
forcibly catheterize Abdo to if Abdo did not submit to the
urinary analysis. Id. at 5. Abdo alleges that the
officers filmed the procedure. Id.
alleges that both McGuire and Larson agreed to obtain a
warrant without probable cause. Id. Because of this
and the forced urinary analysis, Abdo was charged with a
felony, which was eventually dismissed. Id. at 4.
Finally, Abdo alleges that McGuire discriminates against all
Native Americans because McGuire has a personal grudge
against an individual Native American other than Abdo, and
this discrimination prompted Abdo's arrest. Id.
Motion to Proceed In Forma Pauperis
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.
reported average monthly deposits to his prisoner trust
account of $0 and an average monthly balance of
negative $9.08. Docket 4. Based on this information,
the court finds that Abdo is indigent. Section 1915(b)
states, "In no event shall a prisoner be prohibited from
bringing a civil action ... for the reason that the prisoner
has no assets and no means by which to pay the initial
partial filing fee." ...