United States District Court, D. South Dakota, Southern Division
TERRY ALLEN ANDERSON, AND ANY AND ALL PERSONS SIMILAR; Plaintiff,
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
E. SCHREIER UNITED STATES DISTRICT JUDGE.
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.
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
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
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.”
Motion to Proceed In Forma Pauperis
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)).
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.
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 ...