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Hines v. Kaemingk

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

July 12, 2019

NICHOLAS STEWART HINES, Plaintiff,
v.
DENNIS KAEMINGK, SECRETARY OF CORRECTIONS; OFFICIAL CAPACITY; INDIVIDUAL CAPACITY; DARIN YOUNG, WARDEN, SOUTH DAKOTA STATE PENITENTIARY; OFFICIAL CAPACITY; INDIVIDUAL CAPACITY; CODY HANSON, UNIT/ MANAGER, SDSP; OFFICIAL CAPACITY; INDIVIDUAL CAPACITY; MELISSA MATURAN, ADMINISTRATIVE REMEDY COORDINATOR, SDSP; OFFICIAL CAPACITY; INDIVIDUAL CAPACITY; JODY JOHNSON, YANKTON COUNTY CLERK OF COURTS; IN BOTH OFFICIAL AND INDIVIDUAL CAPACITIES; BRANDON LABRIE, UNIT/ MANAGER & UNIT/COORDINATOR SDSP; IN BOTH OFFICIAL AND INDIVIDUAL CAPACITIES; JANE OR JOHN DOE, IN BOTH TNDIVIAUL AND OFFICIAL CAPACITIES; AND YANKTON COUNTY, IN BOTH INDIVIDUAL AND OFFICIAL CAPACITIES; Defendants.

          ORDER GRANTING MOTION TO PROCEED JN FORMA PAUPERIS

          LAWRENCE L. PIERSOL, UNITED STATES DISTRICT JUDGE

         On June 26, 2019, Plaintiff Nicholas Stewart Hines filed a pro se civil rights lawsuit under 42U.S.C. § 1983 and requested leave to proceed in forma pauperis under 28 U.S.C. § 1915. Dockets 1 and 2.

         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. Wrigglesworth, 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 the complaint or notice of appeal.

         Hines has reported average monthly deposits to his prisoner trust account of $145.00 and an average monthly balance of $17.05. Docket 8. Based on this information, the court grants Hines leave to proceed in forma pauperis provided he pays an initial partial filing fee of $29.00, which is 20 percent of $145.00. Hines must pay this initial partial filing fee by August 12, 2019. If the court does not receive payment by this deadline, this matter will be dismissed. Hines may request an extension of time if needed.

         In addition to the initial partial filing fee, Hines 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 each time the amount in the account exceeds $10 until the filing fees are paid.

28 U.S.C. § 1915(b)(2). Therefore, after payment in full of the initial partial filing fee, the remaining installments will be collected pursuant to this procedure.

         The clerk of the court will send a copy of this order to the appropriate financial official at Hines's institution. Hines will remain responsible for the entire filing fee, as long as he is a prisoner, even if the case is dismissed at some later time. See In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997). Accordingly, IT IS ORDERED:

         1. Hines's motion for leave to proceed in forma pauperis (Docket 2) is granted. Hines will make an initial partial payment of $29.00 by August 12, 2019, made payable to the Clerk, U.S. District Court. If the initial partial filing fee is not received by the specified deadline, the case will be dismissed.

         2. After payment of the initial partial filing fee, Hines's institution will collect the additional monthly payments in the manner set forth in 28 U.S.C. § 1915(b)(2), quoted above, and will forward those installments to the court until the $350 filing fee is paid in full.

         3. The clerk of the court is directed to send a copy of this order to the appropriate ...


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