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Anderson v. D. Kaemingk

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

August 29, 2017

TERRY ALLEN ANDERSON, AND ANY AND ALL PERSONS SIMILAR; Plaintiff,
v.
D. KAEMINGK, SECRETARY OF CORRECTIONS AT DEPT. OF CORRECTIONS FOR STATE OF SD, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; D. YOUNG, WARDEN AT SIOUX FALLS PRISON SYSTEM, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; T. PONTO, ASSOC. WARDEN AT JAMESON ANNEX, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; A. ALLCOCK, ASSOC. WARDEN AT SDSP, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; T. MEIROSE, A. MADSEN, O. BERTSCH, SECTION MANAGERS; Defendants.

          ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLANT AND DENYING MOTIONS TO APPOINT COUNSEL AND CERTIFY CLASS

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Plaintiff, Terry Allen Anderson, is an inmate at the South Dakota State Penitentiary (SDSP) in Sioux Falls. Anderson filed a pro se civil rights lawsuit under 42 U.S.C. § 1983 and requested leave to proceed in forma pauperis under 28 U.S.C. § 1915. Docket 1; Docket 2. He also moves the court to appoint him counsel and certify a class. Docket 4. For the following reasons, Anderson's motion to proceed in forma pauperis is granted, his motion to appoint counsel is denied, his motion for class certification is denied, and his complaint is dismissed.

         FACTUAL BACKGROUND

         Anderson alleges that he and other similar persons are subjected to punitive punishment through the “48hr Awareness Program.” Docket 1 at 4. He alleges that this program causes physical and emotional injuries, which lead to colds, flues, and denial of recreation and showers. Id. Anderson also alleges that while placed in administrative and segregated housing, inmates are denied direct access “to Inmate Legal Assistance, Inmate Law Library, and material to bring forth grievance.” Id. He alleges these denials have extended “anywhere from 5 days, to 3 years.” Id. at 5. Anderson further alleges that the Department of Correction's programs operate with “[d]eliberate [i]ndifference to the [o]ffender's safety.” Id. Anderson alleges that prisoners, after filing grievances, are placed in double cells, as opposed to single cells, for the purpose of causing an injury through assault. Id. Anderson alleges this practice causes “physical and emotional injuries.” Id.

         LEGAL STANDARD

         The 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); see also Ellis v. City of Minneapolis, 518 F. App'x 502, 504 (8th Cir. 2013). Civil rights complaints cannot be merely conclusory. Parker v. Porter, 221 F. App'x 481, 482 (8th Cir. 2007); Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993).

         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 . . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “If a plaintiff cannot make the requisite showing, dismissal is appropriate.” Abdullah v. Minnesota, 261 F. App'x 926, 927 (8th Cir. 2008); see also Beavers v. Lockhart, 755 F.2d 657, 663-64 (8th Cir. 1985). Under 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 granted; or (2) seek[] monetary relief from a defendant who is immune from such relief.”

         DISCUSSION

         I. Motion to Proceed In Forma Pauperis

         Under the Prison Litigation Reform Act (PLRA), a prisoner who Abrings 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, A >[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.

         Anderson has reported average monthly deposits to his prisoner trust account of $0.30 and an average monthly balance of negative $1573.73. Docket 3. Based on this information, the court grants Anderson leave to proceed in forma pauperis and waives the initial partial filing fee. See 28 U.S.C. § 1915(b)(4) (“In no event shall a prisoner be prohibited from bringing a civil action . . . for ...


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