United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS,
DENYING MOTION TO APPOINTCOUNSEL, AND DISMISSING
Lawrence L. Piersol United State District Judge
Luke Dvoracek, was an inmate at the South Dakota State
Penitentiary (SDSP) Jamison Annex in Sioux Falls. He filed a
pro se civil rights lawsuit under 42 U.S.C. § 1983,
requested court appointed counsel, and requested leave to
proceed in forma pauperis under 28 U.S.C. § 1915. Docket
1; Docket 3. For the reasons stated below, the Court
dismisses Johnson's complaint, FACTUAL BACKGROUND
filed his complaint on September 28, 2017. Docket 1. In his
complaint, Dvoracek alleges that defendants violated his
Eighth Amendment rights by negligently leaving his cell open
while allowing a different inmate to leave the recreation
cage and enter the lockdown unit. Id. The other
inmate subsequently assaulted Dvoracek. Id.
Following the assault, Dvoracek required immediate medical
attention. Id. Dvoracek seeks relief in the form of
money damages from the defendants.
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. Partus, 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); Ellis v. City of Minneapolis,
518 Fed.Appx. 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 Fed.Appx. 481, 482 (8th Cir. 2007).
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 Fed.Appx. 926, 927 (8th
Cir. 2008); Beavers v. Lockhart, 755 F.2d 657, 663
(8th Cir. 1985)..
U.S.C. § 19I5A requires the Court to 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." 1915A(b).
Motion for Leave 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. Wriggtesworth, 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