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Johnson v. Fluke

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

October 24, 2019

CHARLES R. JOHNSON, Plaintiff,
v.
WARDEN FLUKE, WARDEN AT MIKE DURFEE STATE PRISON IN INDIVIDUAL AND OFFICIAL CAPACITY; UNKNOWN DENTIST, DENTIST AT MIKE DURFEE STATE PRISON IN INDIVIDUAL AND OFFICIAL CAPACITY; AND UNKNOWN HYGIENIST, HYGIENIST AT MIKE DURFEE STATE PRSON IN INDIVIDUAL AND OFFICIAL CAPACITY; Defendants.

          1915A SCREENING AND ORDER DISMISSING COMPLAINT

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.

         Plaintiff, Charles R. Johnson, filed a pro se civil rights law suit under 42 U.S.C. § 1983. Doc. 1. Johnson filed an application to proceed without prepayment of filing fees and has provided the court with his prisoner trust account. Docs. 2, 3. He also filed a motion to appeal without repayment of fees and a motion to appoint counsel. Docs. 4, 5. Johnson's complaint alleges violations of the Eighth Amendment and Fourteenth Amendment. Doc. 1 at 4.

         I. Motion to Proceed In Forma Pauperis

         Johnson filed an application to proceed without prepayment of filing fees, Doc. 2, 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.

         Johnson has reported an average negative balance in his inmate trust account. Doc. 3. Based on this information, the court grants Johnson 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, Johnson 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). The installments will be collected pursuant to this procedure. The Clerk of Court will send a copy of this order to the appropriate financial official at Johnson's institution. Johnson remains responsible for the entire filing fee, as long as he is a prisoner. See In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997).

         II. Allegations of Johnson's Complaint

         Johnson claims that his mouth was "rinsed and suctioned with contaminated water that contained bacteria" during an oral surgery. Doc. 1 at 4. He alleges that the water was contaminated because there was a "crack in the water supply." Id. Johnson claims he would have denied his surgery if he had known of the crack. Id. He claims that there are no administrative remedies available at his institution. Id.

         III. Screening and ...


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