Abdo v. Larson

          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.

         INTRODUCTION

         Plaintiff, 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.

         FACTUAL BACKGROUND

         Abdo 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. Id.

         At the 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.

         Abdo 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. at 6.

         DISCUSSION

         I. Motion to Proceed In Forma Pauperis

         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 the complaint or notice of appeal.

         Abdo 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." ...