Snowfly v. Reyes

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION SHANE SNOWELY, 4:24-CV-04194-RAL Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN VS. FORMA PAUPERIS AND REQURING PLAINTIFF TO PAY AN INTIAL PARTIAL ALEJANDRO REYES, Warden MDSP; and FILING FEE AARON HAYNES, Medical Director, Defendants.

Plaintiff Shane Snowfly an inmate at the Mike Durfee State Prison filed a pro se civil rights lawsuit. Doc. 1. Snowfly filed a motion to leave to proceed in forma pauperis and provided the Court with his prisoner trust account report. Docs. 4, 5.

Under the Prison Litigation Reform Act, 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 proceeding or over a period of time under an installment plan.” Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (per curiam) (alteration in original) (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.

Snowfly reports an average monthly balance for the past six months in his prisoner trust account of $9.40 and an average monthly deposit of $42.37. Doc. 5 at 1. Based on this information, the Court grants Snowfly leave to proceed in forma pauperis, but he must pay an initial partial filing fee of $8.47 (20 percent of his average monthly balance). Snowfly must pay the initial partial filing fee of $8.47 by November 27, 2024. His failure to pay the filing fee by November 27, 2024, will result in the dismissal without prejudice of his complaint.

In order to pay his filing fee, Snowfly 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 Snowfly’s institution.

Snowfly 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).

Accordingly, it is ORDERED that Snowfly’s motion for leave to proceed in forma pauperis, Doc. 4, is granted. Snowfly will make a payment of $8.47 by November 27, 2024, made payable to the Clerk, U.S. District Court. If Snowfly does not pay the initial partial filing fee by November 27, 2024, his complaint will be dismissed without prejudice. It is further ORDERED that the Clerk of Court will send a copy of this order to the appropriate financial official at Snowfly’s institution. It is finally ORDERED that the institution having custody of Snowfly is directed that whenever the amount in Snowfly’s trust account, exclusive of funds available to him in his frozen account, exceeds $10.00, monthly payments that equal 20 percent of the funds credited the preceding month to Snowfly’s trust account shall be forwarded to the U.S. District Court Clerk’s Office under 28 U.S.C. § 1915(b)(1), until the $350 filing fee is paid in full.

DATED October 28”, 2024.

BY THE COURT: dis log ROBERTO A. LANGE CHIEF JUDGE