Crow Eagle v. United States Marshal's Service et al

Filing 6

ORDER AND JUDGMENT OF DISMISSAL granting 2 MOTION for Leave to Proceed in forma pauperis filed by Gilbert O. Crow Eagle and granting 5 MOTION to Withdraw 1 Complaint - Prisoner Civil Rights (42:1983) filed by Gilbert O. Crow Eagle. Signed by U. S. District Judge Roberto A. Lange on 05/08/2012. (SAT)

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

CENTRAL DIVISION

GILBERT O. CROW EAGLE,
Plaintiff,
vs.
UNITED STATES MARSHAL'S
SERVICE; PAUL SCHORDER, Chief
of Police; CHIP SCHORDER, Sheriff;
LORI KALENDA, Jail Administrator;
SGT. RICHARD BERTRAM; ALL CITY
COMMISSIONERS; ALL COUNTY
COMMISSIONERS; WINNER CITY;
TRIPP COUNTY; and MAYOR JESS
KESSR
Defendants.

*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*

CIV 12-3012-RAL

ORDER AND
JUDGMENT OF DISMISSAL

Plaintiff Gilbert O. Crow Eagle filed a Complaint (Doc. 1) and Application to Proceed without
payment of filing fee (Doc. 2). Plaintiff now has filed Plaintiffs Motion to Withdraw Civil Rights
Complaint by a Prisoner (Doc. 5).
Crow Eagle is indigent and this Court grants his application to proceed without prepayment
of filing fees. The Prison Litigation Reform Act, 28 U.S.C. § 1915, requires prisoners to make an
initial partial filing payment where possible and to pay the filing fee in full over time. "[I]fa prisoner
brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full
amount ofa filing fee." 28 U.S.C. § 1915(b)(1). There appears to be no exception to this requirement
to pay the filing fee for instances where the prisoner chooses to voluntarily withdraw his Complaint.
Determination ofthe partial filing fee is calculated according to 28 U .S.C. § 1915(b)(1), which
requires 20 percent of the greater of: (a) the average monthly deposits to the prisoner's account; (b)
the average monthly balance in the prisoner's account for the six-month period immediately preceding

the filing of the complaint or notice of appeal. Crow Eagle's application represents that he has no
funds whatsoever in any inmate trust account. (Doc. 2). Under Section 1915(b)(4), no prisoner shall
be prohibited from bringing a civil action by reason of the prisoner having no assets and no means to
make an initial partial filing fee. However, Crow Eagle will have to pay the entire $350 filing fee over
the course of time, regardless of the fact that this Court is not granting any relief in this action.
Therefore, it is hereby
~

ORDERED that Crow Eagle's application to proceed without prepayment of filing fees (Doc.

t

r

t

!

2) is granted. It is further
ORDERED that the institution having custody ofCrow Eagle is hereby directed that whenever
the amount in Crow Eagle's trust account exceeds $10.00, monthly payments that equal 20 percent of
the funds credited to the account the preceding month be forwarded to the United States District Court
Clerk, 225 South Pierre Street, Pierre, South Dakota 5750 I, pursuant to 28 U .S.C. § 1915(b)(2), until
Crow Eagle has paid the $350.00 filing fee in full. It is further

r
t
t

,
f

I
t

!

!
i

I

t

ORDERED that the Motion to Withdraw Civil Rights Complaint by a Prisoner (Doc. 5) is
granted. It is further
ORDERED that Crow Eagle's Complaint is dismissed on its merits and with prejudice and that
judgment of dismissal hereby enter under Rules 54 and 58 of the Federal Rules of Civil Procedure.
Dated May 8,2012.

BY THE COURT:

UNITED STATES DISTRICT JUDGE

2

!

I

I

I