Creek v. Weber et al

Filing 5

ORDER directing Clerk to mail PTAR to Plaintiff. Failure to file the PTAR by January 17, 2018, will result in dismissal without prejudice of the complaint. Signed by U.S. District Judge Karen E. Schreier on 12/19/17. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
NATIVE AMERICAN COUNCIL OF
TRIBES, BLAINE BRINGS PLENTY, and
CLAYTON SHELDON CREEK,
Plaintiff,

4:17-CV-04159-KES

ORDER

vs.
DOUGLAS WEBER, Warden of the
South Dakota State Penitentiary; and
DENNIS KAEMINGK, Secretary of the
Department of Corrections;
Defendants.
Plaintiffs, Native American Council of Tribes (NACT), Blaine Brings
Plenty, and Clayton Sheldon Creek, succeeded in a court trial against
defendants Douglas Weber and Dennis Kaemingk, showing that a complete ban
of tobacco in Department of Corrections (DOC) facilities violates the Religious
Land Use and Institutionalized Persons Act (RLUIPA). Native Am. Council of
Tribes v. Weber, 897 F. Supp. 2d 828 (D.S.D. 2012). On November 13, 2017,
Creek filed “Plaintiffs’ Post-Trial-And Appeal Motion to Bring (Isolated Claims)”
under the same case number, 4:09-CV-04182-KES. Docket 1. But this court
previously ordered that “[a]ny new claims alleging that DOC policies are
restricting additional religious rights of prisoners, such as the seven sacred
ceremonies, access to a sweat lodge, or any other non-tobacco related claims,

should be brought in a new complaint . . . .” Native Am. Council of Tribes v.
Weber, No. 4:09-CV-041820-KES, Docket 286 (D.S.D. August 9, 2017). Creek
now alleges defendants violated RLUIPA by interfering with the Native American
Organizations’ financial accounts. Dockets 1 and 2. As a result, the Clerk of
Court opened the instant case. On November 14, 2017, the Clerk of Court sent
Creek a Prisoner Trust Account Report and directed Creek to complete it.
Docket 4. A month has passed, and Creek has failed to return a completed
Prisoner Trust Account Report. Thus, he has not yet satisfied, nor attempted to
satisfy, 28 U.S.C. § 1915(a)(2).
The court will provide Creek an additional thirty days to file “a certified
copy of the trust fund account statement (or institutional equivalent) for the
prisoner for the 6-month period immediately preceding the filing of the
complaint.” 28 U.S.C. § 1915(a)(2). Failure to comply with this order and
submit a certified Prisoner Trust Account Report by the deadline set will result
in dismissal without prejudice of this action. See In re Prison Litig. Reform Act,
105 F.3d 1131, 1132 (6th Cir. 1997) (“If an inmate not paying the full filing fee
fails to provide an affidavit of indigency or trust account statement, the district
court shall notify the prisoner of the deficiency and the prisoner shall have
thirty (30) days from the date of the deficiency order to correct the error or pay
the full filing fee. If the prisoner does not comply with the district court’s
directions, the . . . district court must then order the case dismissed for want of
prosecution.”); see also Perry v. Boston Scientific Family, CIV. No. 11-3464
(DWF/LIB), 2012 WL 694713, at *2 (D. Minn. Feb. 9, 2012), report and
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recommendation adopted, CIV. No. 11-3464 (DWF/LIB), 2012 WL 694700, at *1
(D. Minn. Mar. 1, 2012) (collecting cases holding dismissal appropriate when
pro se litigant fails to comply with pauper requirements and court orders).
Thus, it is
ORDERED that the Clerk of Court mail this order and a Prisoner Trust
Account Report to Creek.
IT IS FURTHER ORDERED that Creek will complete the Prisoner Trust
Account Report according to that document’s directions and return it by
January 17, 2018. Failure to file the Prisoner Trust Account Report by January
17, 2018, will result in dismissal without prejudice of the complaint.
DATED this 19th day of December, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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