Dale v. CBM Correctional Food Services et al
Filing
11
OPINION Granting Leave to File Financial Information. Signed by U.S. District Judge Roberto A. Lange on 12/7/2016. (JLS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
FILED
DEC e?
SOUTHERN DIVISION
JAMES IRVING DALE,
Plaintiff,
4:16-CV-04133-RAL
vs.
CBM CORRECTIONAL FOOD
SERVICES, ROBERT DOOLEY, DARIN
YOUNG, BARRY SCHROETER, JOHN
TWIERWEILLER, KEVIN
TWIERWEILLER, BRANDON KNUTSON,
DERRICK GLASER, ELIZABETH
VITETTA, MELISSA MATURAN,
OPINION GRANTING LEAVE TO FILE
FINANCIAL INFORMATION
SHARON CHINN. UNKNOWN
DEPARTMENT OF CORRECTIONS
STAFF, UNKNOWN CBM
CORRECTIONAL FOOD SERVICES
EMPLOYEES,
Defendants.
Plaintiff, James Irving Dale ("Dale"), filed this lawsuit pursuant to 42
U.S.C. § 1983 while he was an inmate at the South Dakota State Penitentiary
in Sioux Falls. This Court screened and dismissed his complaint. Doc. 6. Dale
filed a notice of appeal. Doc. 8, and moved for leave to proceed in forma
pauperis. Doc. 9. Dale has not provided any information regarding his
financial status other than to claim he is unable to pay the filing fees.
Under Rule 201 of the Federal Rules of Evidence, a court may take
judicial notice of "adjudicative facts." This Court takes judicial notice of Dale's
notice of change of address filed on November 17, 2016, Dale v. Dooley et al,
4:14-CV-04003-LLP at Doc. 112, which shows that Dale is incarcerated at the
Sherburne County Jail. See Fed. R. Evid 201; Stutzka v. McCarville, 420 F.3d
757, 760 n.2 (8th Cir. 2005)(courts may take judicial notice of public records).
Therefore, it appears that Dale is incarcerated, and the PLRA applies.
Under the Prison Litigation Reform Act (PLRA), a prisoner who "files an
appeal in forma pauperis . . . [is] required to pay the full amount of a filing
fee." 28 U.S.C. § 1915(b)(1). This obligation arises "'the moment the
prisoner . . . files an appeal.'" Henderson v. Norris, 129 F.3d 481, 483 (8th Cir.
1997)(quoting In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997)). Therefore,
"'[wjhen 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.'" Id. (quoting McGore v. Wrigglesworth, 114 F.3d
601, 604 (6th Cir. 1997)). "[Pjrisoners who appeal judgments in civil cases
must sooner or later pay the appellate filing fees in full." Id. (citing Newlin v.
Helman, 123 F.3d 429, 432 (7th Cir. 1997)).
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)). Although the
Court maintains that Dale's case was properly dismissed, it appears that his
appeal is taken m good faith.
Dale has not provided a certified copy of the prisoner's prison account or
an affidavit showing his financial status. "[F]ailure to file the prison account
information . . . result[s] in the assessment of an initial appellate partial fee of
$35 or such other amount that is reasonable, based on whatever information
the court has about the prisoner's finances." Henderson, 129 F.Sd at 484.
Because Dale's circumstances have changed, the Court cannot calculate his
partial filing fee using available information. Therefore, the Court grants Dale
14 days in which to file current financial information. If Dale fails to file this
information, he will be assessed an initial appellate partial fee of $35.
Thus, it is
ORDERED Dale must file a current prisoner trust account within 14
days or he will be assessed an initial appellate partial fee of $35.
Dated December 7, 2016.
BY THE COURT:
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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