Dale et al v. Kaemingk et al
Filing
145
OPINION AND ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by U.S. District Judge Roberto A. Lange on 2/24/17. (DJP)
UNITED STATES DISTRICT COURT
EB 2 4 2017
DISTRICT OF SOUTH DAKOTA
'cie^
SOUTHERN DIVISION
MICHAEL EUGENE KOCH,
GUY ALLEN BLESI,
JAMES EDWARD HAYES,
JOSIA JEREMIAH FUERST,
4;15-CV-04103-RAL
JEFFERY JACOB-DANIEL
KLINGHAGEN,
UNKNOWN MIKE DURFEE STATE
PRISON INMATES,
Plaintiffs,
vs.
OPINION AND ORDER GRANTING
LEAVE TO PROCEED IN FORMA
PAUPERIS ON APPEAL
DENNIS KAEMINGK, SOUTH
DAKOTA SECRETARY OF
CORRECTIONS; IN HIS INDIVIDUAL
AND OFFICIAL CAPACITY; ROBERT
DOOLEY, WARDEN AT MDSP AND
THE DIRECTOR OF PRISON
OPERATIONS FOR THE SOUTH
DAKOTA DOC; IN HIS INDIVIDUAL
AND OFFICIAL CAPACITY; JOSHUA
KLIMEK, UNIT MANAGER AT MDSP;
IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY; TAMMY DEJONG, UNIT
COORDINATOR AT MDSP; IN HER
INDIVIDUAL AND OFFICIAL
CAPACITY; SUSAN JACOBS,
ASSOCIATE WARDEN AT MDSP; IN
HER INDIVIDUAL AND OFFICIAL
CAPACITY; REBECCA SCHIEFFER,
ASSOCIATE WARDEN AND THE
ADMINISTRATIVE REMEDY
COORDINATOR AT MDSP; IN HER
INDIVIDUAL AND OFFICIAL
CAPACITY; JENNIFER STANWICK,
DEPUTY WARDEN AT MDSP; IN HER
INDIVIDUAL AND OFFICIAL
CAPACITY; MICHAEL DOYLE,
CORRECTIONAL OFFICER, WITH
THE RANK MAJOR, AT MDSP; IN HIS
INDIVIDUAL AND OFFICIAL
CAPACITY; JEREMY LARSON,
CORRECTIONAL OFFICER, WITH
THE RANK SERGEANT, AND THE
DISCIPLINARY HEARING OFFICER
AT MDSP; IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; COREY TYLER,
CORRECTIONAL OFFICER, WITH
THE RANK SERGEANT, AT MDSP; IN
HIS INDIVIDUAL AND OFFICIAL
CAPACITY; MICHAEL MEYER,
CORRECTIONAL OFFICER AT MDSP;
IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY; KELLY TJEERDSMA,
CORRECTIONAL OFFICER, WITH
THE RANK CORPORAL, AT MDSP; IN
THEIR INDIVIDUAL AND OFFICIAL
CAPACITY; LORI DROTZMAN,
GENERAL EDUCATION DIPLOMA '
TEACHER, WHO ALSO IS IN
CHARGE OF THE LAW LIBRARY AT
MDSP; IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; MICHAEL JOE
HANVEY, PHYSICIANS ASSISTANT
AND HEALTH CARE PROVIDER AT
MDSP; IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; ANDRA GATES,
NURSING SUPERVISOR AND
HEALTH CARE PROVIDER AT MDSP;
IN HER INDIVIDUAL AND OFFICIAL
CAPACITY; KELLY SWANSON,
HEALTH SERVICES SUPERVISOR AT
MDSP; IN THEIR INDIVIDUAL AND
OFFICIAL CAPACITY; STEPHANIE
HAMILTON, NURSE AT MDSP; IN
HER INDIVIDUAL AND OFFICIAL
CAPACITY; MARY CARPENTER,
EMPLOYEE OF THE SOUTH DAKOTA
DEPARTMENT OF HEALTH AND
ASSISTS WITH INMATE HEALTH
CARE DECISIONS FOR INMATES
INCARCERATED AT MDSP; IN HER
INDIVIDUAL AND OFFICIAL
CAPACITY; BARRY SCHROETER,
SUPERVISOR FOR CRM
CORRECTIONAL FOOD SERVICES
AT MDSP; IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; JENNIFER
BENBOON, DIETITIAN EMPLOYED
BY CRM CORRECTIONAL FOOD
SERVICES; IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; CRM
CORRECTIONAL FOOD SERVICES,
PRIVATE FOR PROFIT COMPANY
CONTRACTED BY THE SOUTH
DAKOTA DOC TO PROVIDE MEALS
TO INMATES INCARCERATED AT
MDSP; DELMAR SONNY WALTERS,
ATTORNEY AT LAW CONTRACTED
BY THE SOUTH DAKOTA DOC TO
PROVIDE LEGAL SERVICES TO
INMATES INCARCERATED AT MDSP;
IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY; UNKNOWN DEPARTMENT
OF CORRECTIONS EMPLOYEES,
CORRECTIONAL OFFICERS
EMPLOYED BY THE SOUTH DAKOTA
DOC WHO WORK AT MDSP;
UNKNOWN DEPARTMENT OF
CORRECTIONS HEALTH SERVICES
STAFF, HEALTH SERVICES
DEPARTMENT STAFF EMPLOYED BY
THE SOUTH DAKOTA DOC TO
PROVIDE HEALTH CARE FOR
INMATES INCARCERATED AT MDSP;
AND UNKNOWN CBM
CORRECTIONAL FOOD SERVICES
EMPLOYEES, EMPLOYEES OF CBM
CORRECTIONAL FOOD SERVICES
AT MDSP;
Defendants.
A number of plaintiff-inmates filed this lawsuit pursuant to 42 U.S.C.
§ 1983. Doc. 1. On November 16 and 18, 2016, plaintiffs Jeffery Jacob-Daniel
Klinghagen and Michael Eugene Koch moved for review of the denial of their
motions to appoint counsel. Doc. 118; Doc. 120. They also stated that they
wished the motions to constitute notices of appeal if they were dismissed. On
January 23, 2017, this Court dismissed these motions and ordered that they
be treated as notices Of appeal. Doc. 139. Neither Klinghagen nor Koch filed a
motion for leave to proceed in forma pauperis on appeal or paid their appellate
filing fees.
By filing a notice of appeal Klinghagen and Koch consented to the
deductions of their initial partial appellate filing fees and the remaining
installments from their prisoner accounts. Henderson v. Norris, 129 F.3d 481,
484 (8th Cir. 1997). Per Henderson, Klinghagen and Koch were supposed to
submit copies of their prisoner trust account reports within 30 days of filing
their notice of appeal. Id. They failed to submit reports. As a result, the initial
appellate partial fees must be assessed as "$35 or such other amount that is
reasonable, based on whatever information the court has about the prisoner's
finances." Id. In the prisoner trust account report Klinghagen submitted for his
original motion for leave to proceed in forma pauperis, he had average monthly
deposits of $66.26. Doc. 47 at 1. In the prisoner trust account report Koch
submitted for his original motion for leave to proceed in forma pauperis, he had
average monthly deposits of $52.00. Doc. 40 at 1.
In Henderson, the Eighth Circuit set forth "the procedure to be used to
assess, calculate, and collect" appellate filing fees in compliance with the PLRA.
129 F.3d at 483. First, the court must determine whether the appeal is taken
in good faith. Id. at 485 (citing 28 U.S.C. § 1915(a)(3)). Then, the court must
calculate the initial appellate partial filing fee as 20 percent of the greater of:
(A)
(B)
the average monthly deposits to the prisoner's account; or
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.
28 U.S.C. § 1915(b)(1). Nonetheless, no prisoner will be "prohibited from . . .
appealing a civil or criminal judgment for the reason that the prisoner has no
assets and no means by which to pay the initial partial filing fee." 28 U.S.C.
§ 1915(b)(4).
It appears that both appeals are taken in good faith. Based on the
information above, the court finds that § 1915(b)(1) applies. Klinghagen may
proceed in forma pauperis on appeal provided he pays an initial partial
appellate filing fee of $13.25, which is 20 percent of $66.26. Koch may proceed
in forma pauperis on appeal provided he pays an initial partial appellate filing
fee of $10.40, which is 20 percent of $52.00.
Accordingly, it is
ORDERED that Klinghagen may proceed in forma pauperis on appeal. He
will make an initial partial appellate payment of $13.25 by March 23, 2017,
made payable to the Clerk, U.S. District Court.
ORDERED that Koch may proceed in forma pauperis on appeal. He will
make an initial partial appellate payment of $10.40 by March 23, 2017, made
payable to the Clerk, U.S. District Court.
IT IS FURTHER ORDERED that the institution having custody of the
plaintiffs is directed that whenever the amount in their trust account, exclusive
of funds available to them in their frozen account, exceeds $10, monthly
payments that equal 20 percent of the funds credited to the account the
preceding month shall be forwarded to the United States District Court Clerk's
office pursuant to 28 U.S.C. § 1915(b)(2), until the appellate filing fees of $505
is paid in full.
Dated February 3*/. 2017.
BY THE COURT:
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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