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Dvoracek v. Johnson

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

December 8, 2017

LUKE DVORACEK, Plaintiff,
v.
STEPHANIE JOHNSON, Corrections Officer at South Dakota Penitentiary Jamison, in her individual capacity; and AMBER HAGEN, Corrections Officer at South Dakota Penitentiary Jamison, in her individual capacity;; Defendants.

          ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, DENYING MOTION TO APPOINTCOUNSEL, AND DISMISSING CASE

          Lawrence L. Piersol United State District Judge

         INTRODUCTION

         Plaintiff, 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

         Dvoracek 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.

         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. 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).

         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 Fed.Appx. 926, 927 (8th Cir. 2008); Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985)..

         28 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).

         DISCUSSION

         I. Motion for Leave 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. Wriggtesworth, 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 ...

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