United States District Court, D. South Dakota, Southern Division
ORDER DENYING MOTION TO APPOINT COUNSEL, GRANTING IFP
STATUS, AND DIRECTING SERVICE
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
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.
.Facts Alleged in the Complaint
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.
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.
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.
In Forma Pauperis Status
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)).
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 $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.").
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 ...