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Farlee v. Sgt #79 Liz

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

July 23, 2019

LEON D. FARLEE, Plaintiff,
v.
SGT #79 LIZ, AT HUGES CO. JAIL IN HER INDIVIDUAL AND OFFICIAL CAPACITY; SGT #123 JESSE, AT HUGES CO. JAIL IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; AND NURSE NICHOLE, AT HUGES CO. JAIL IN HER INDIVIDUAL AND OFFICIAL CAPACITY; Defendants.

          ORDER DIRECTING SERVICE

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.

         Plaintiff Leon D. Farlee was incarcerated at the Hughes County Jail in Pierre, South Dakota. Doc. 1. Farlee filed a prose civil rights lawsuit under 42 U.S.C. § 1983. Id. Farlee also requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Doc. 2. For the following reasons, this Court grants Farlee's motion to proceed in forma pauperis and directs service.

         I. Facts Alleged in the Complaint[1]

         On February 27, 2019, Farlee was booked into the Hughes County Jail. Doc. 1 at 4. Farlee informed Defendants that he had blood in his stool and a family history of colon cancer. Id. Farlee also informed Defendants that he had an appointment with Dr. Becker at Avera the next week to address his concerns. Id. Defendants did not allow Farlee to attend the appointment with Dr. Becker. Id.

         On April 5, 2019, Farlee asked Sgt. Jesse and Sgt. Liz to be moved to the bottom tier of the jail. Id. at 6, 8. Farlee's health was deteriorating and he felt unable to climb the stairs safely, Id. Farlee's request was denied despite available cells on the bottom tier. Id. Farlee was informed that only medical staff could transfer him to the first floor. Id. Farlee then filed a request for the names and positions of medical staff to file a lawsuit regarding medical care. Id. at 6. This request was returned unanswered. Id. On April 6, 2019, Farlee requested to be moved to the bottom tier of the jail but his request was denied. Id. at 1. Farlee then asked Nurse Nichole to move him to the bottom tier. Id. He explained that he felt "faint, weak, and unable to make the climb due to loss of blood and fatigue from pain and lack of sleep." Id. He showed the nurse blood. Id. Nurse Nichole denied Farlee's request. Id.

         On April 8, 2019, Farlee fell backwards, down seven stairs due to a dizzy spell. Id. at 6, 8. Farlee required emergency medical attention and was transported to the emergency room. Id. Farlee injured his shoulder and ribs during the fall. Id. at 9. After returning to the jail, Defendants failed to provide Farlee pain medication because they were out of pain medication. Id.

         On April 9, 2019, Farlee was in bed and needed help to get to the toilet. Id. at 7. Farlee yelled for help for thirty minutes. Id. No. helped arrived and Farlee urinated on himself. Id. Farlee requested a shower but did not receive one until 10:00 a.m. the next day. Id.

         Farlee alleges that three weeks passed before the U.S. Marshals received Farlee's request for medical attention from Defendants. Id. When the Marshals received the request, they set up an appointment for Farlee to see Dr. Becker on April 24, 2019. Id. at 5. Farlee claims fifty-six days elapsed from the time he submitted his medical request to the nurse at the jail. Id.

         II. In Forma Pauperis Status

         Farlee 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, 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.

         Farlee has reported average negative balance in his inmate trust account. Doc. 3. Based on this information, the court grants Farlee leave to proceed in forma pauperis and waives the initial partial filing fee. See 28 U.S.C. ยง 1915(b)(4) ("In no event shall a prisoner be prohibited from bringing a civil action ... for the reason that the ...


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