United States District Court, D. South Dakota, Southern Division
CHARLES R. JOHNSON, Plaintiff,
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
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.
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.
Motion to Proceed In Forma Pauperis
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.
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 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.").
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
Allegations of Johnson's Complaint
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.
Screening and ...