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Clay v. Rodriquez

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

May 16, 2019

CORNELIUS CLAY, Plaintiff,
v.
SGT. NICHOLAS RODRIQUEZ, INDIVIDUAL CAPACITY; NURSE SHELBIBACKHAUS, INDIVIDUAL AND OFFICIAL CAPACITY; OFFICER BRENT MCDONALD, INDIVIDUAL CAPACITY; AND NICHOLAS ANDERSON, INDIVIDUAL CAPACITY, Defendants.

          ORDER DENYING MOTION TO APPOINT COUNSEL, GRANTING IFP STATUS, AND DIRECTING SERVICE

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.

         Plaintiff Cornelius Clay (Clay) filed this lawsuit pursuant to 42 U.S.C. § 1983. Doc. 1. Clay is an inmate at the South Dakota State Penitentiary in Sioux Falls, South Dakota. This Court has screened his complaint pursuant to 28 U.S.C. § 1915A. For the following reasons, this Court denies Clay's motion to appoint counsel, grants in forma pauperis status, and directs service.

         I .Facts Alleged in the Complaint[1]

         On September 23, 2017, Clay felt ill, saw a nurse at the South Dakota State Penitentiary, and recorded a temperature of 102.5 degrees. Id. at 4. Although directed to Health Services, according to Clay, Defendant Sergeant Nicholas Rodriquez (Rodriquez) intervened and threatened Clay with disciplinary action if he did not go to his cell instead. Id/ A week later, Clay still felt ill, was allowed to go to Health Services, had a temperature of 102.6 degrees, and then spent hours in the Emergency Department off site until his temperature lowered. Clay alleges that thereafter that on October 2, 2017, he was not allowed to see a physician as directed. Clay contends that he now has spinal inflammation, has undergone a spinal tap to alleviate the inflammation, and is wheelchair bound. Id. Confusingly, Clay indicates both that he submitted a request for administrative relief regarding Rodriquez's conduct and that he was denied his right to grieve because of the length of his illness. Id. at 5.

         Clay alleges that Defendant Nurse Shelbi Backhaus (Backhaus) told the medical team that Clay was faking his illness and sent him back to his'cell on October 12, 2017, and that later in the same day he was rushed to the Emergency Department with a temperature of 103.2 degrees. Id. at 5. Clay asserts that, if given timely treatment, he would not now be wheelchair bound. Id.

         Clay's claims against Defendant Officer Brent McDonald (McDonald) and Nicholas Anderson (Anderson) relate to those two Defendants allegedly ignoring or refusing Clay's requests to get emergency treatment, hi at 6. Both concerning the claims against Backhaus and those against McDonald and Anderson, Clay acknowledges not having filed any grievance, but claims he was denied his right to file any such grievance. Id. at 5, 6.

         II. In Forma Pauperis Status

         Clay filed an Application to Proceed Without Prepayment of Filing Fees, Doc. 2, properly completed and a Prisoner Trust Account Report, Doc. 3, showing that he presently has a negative balance in his inmate trust account. 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)." 'When 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. 129F.3d481.483 (8th Cir. 1997), (quoting McGore v. Wriggles worth, 114F.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.

         Clay has reported average monthly deposits to his prisoner trust account of $8.98 and an average monthly balance of negative $104.21. Doc. 3. Based on this information, the court grants Clay 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 the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.").

         In order to pay his filing fee, Clay must "make monthly payments of 20 percent of the preceding . month's income credited to the prisoner's account." 28 U.S.C. § 1915(b)(2). The statute places the burden on the prisoner's institution to collect the additional monthly payments and forward them to the court as follows:

After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court ...

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