Dale v. CBM Correctional Food Services et al

Filing 13

ORDER GRANTING 10 MOTION for Leave to Proceed In Forma Pauperis on Appeal filed by James Irving Dale. Signed by U.S. District Judge Roberto A. Lange on 12/20/16. (SKK)

UNITED STATES DISTRICT COURT

DEC 2 0 2018

DISTRICT OF SOUTH DAKOTA

GLEFjC

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
PROCEED IN FORMA PAUPERIS

SHARON CHINN. UNKNOWN
DEPARTMENT OF CORRECTIONS

STAFF, UNKNOWN CBM
CORRECTIONAL FOOD SERVICES

EMPLOYEES,
Defendants.

Plaintiff, James Irving Dale ("Dale"), filed this lawsuit while he was an
inmate at the South Dakota State Penitentiary in Sioux Falls. This Court
.

V

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. This Court
ordered Dale to file information regarding his financial status. Doc. 11. Dale

has now filed a copy of his prisoner trust account report. Doc. 12.
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,
"'[w]hen 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)). "[P]risoners 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)). Then, so long as

the prisoner has provided the court with,a certified copy of his prisoner trust
account, the court must "calculate the initial appellate partial filing fee as
provided by § 1915(b)(1), or determine that the provisions of § 1915(b)(4)
apply." Id. The initial partial filing fee must be 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 6month 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

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assets and no means by which to pay the initial partial filing fee." 28 U.S.C.
§ 1915(b)(4).

It appears that Dale's appeal is taken in good faith. Further, his prisoner
trust account indicates that he has average monthly deposits to his prisoner

trust account of $30.00 and an average monthly balance of $0.21. Doc. 12.
Based on this information, the court finds that § 1915(b)(1) applies. Dale may
proceed in forma pauperis on appeal provided he pays an initial partial

appellate filing fee of $6.00, which is 20 percent of $30.00. Accordingly, it is
ORDERED that Dale may proceed in forma pauperis on appeal. Dale will

make an initial partial appellate payment of $6.00 by January 20, 2016, made
payable to the Clerk, U.S. District Court.

IT IS FURTHER ORDERED that the institution having custody of Dale is
directed that whenever the amount in Dale's trust account, exclusive of funds

available to him in his 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 fee of $505 is paid in full.
Dated December 20, 2016.

BY THE COURT:

ROBERTO A. LANGE

UNITED STATES DISTRICT JUDGE