Tracy v. Elshere et al

Filing 6

ORDER granting #4 Motion for Leave to Proceed in forma pauperis. Signed by U.S. District Judge Karen E. Schreier on 4/27/2021. (CLR) Modified on 4/27/2021 delivered to Plaintiff SDSP Financial Division via USPS (CLR).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
EUGENE EDWARD TRACY,

4:21-CV-04049-KES

Plaintiff,
vs.
DAWN ELSHERE, Circuit Court Judge,
in her individual and official capacity,
DAVE ERICKSON, Chief of Police, City
of Brookings Police Department, in his
individual and official capacity, SETH
BONNEMA, Officer at Brookings County
Jail, in his individual and official
capacity, HEDI SCHULTZ, Sanford
Health RN, in her individual and official
capacity, SEAN DOREMUS, Police
Officer for Brookings County Police
Department, BROOKINGS POLICE
DEPARTMENT, and SANFORD HEALTH
HOSPITAL,

ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS AND
REQUIRING AN INITIAL PARTIAL
FILING FEE

Defendants.
On April 1, 2021, plaintiff, Eugene Edward Tracy, filed a prisoner pro se
civil rights lawsuit. Docket 1. Tracy moves for leave to proceed in forma
pauperis and filed a prisoner trust account report. Dockets 4, 5. Under the
Prison Litigation Reform Act, a prisoner who Abrings a civil action or files an
appeal in forma pauperis . . . shall be required to pay the full amount of a filing
fee.@ 28 U.S.C. ' 1915(b)(1). AWhen 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.@ Henderson v.
Norris, 129 F.3d 481, 483 (8th Cir. 1997) (quoting McGore v. Wrigglesworth,
114 F.3d 601, 604 (6th Cir. 1997)).
The initial partial filing fee that accompanies an installment plan is
calculated according to 28 U.S.C. ' 1915(b)(1), which requires a payment of 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.

Tracy reported an average monthly balance for the past six months to
his prisoner trust account of $14.05, and an average monthly deposit of
$145.92. Docket 5 at 1. Based on this information, the court grants Tracy
leave to proceed in forma pauperis, but he must pay an initial partial filing fee
of $29.18 (20 percent of his average monthly deposit). Tracy must pay the
initial partial filing fee of $29.18 by May 27, 2021. Failure to pay the filing
fee by May 27, 2021, will result in dismissal without prejudice of Tracy’s
complaint.
Thus, it is ORDERED:
1. That Tracy’s motion for leave to proceed in forma pauperis
(Docket 4) is granted. Tracy must make a payment of $29.18 by
May 27, 2021, made payable to the Clerk, U.S. District Court. If
Tracy does not pay the initial partial filing fee by May 27, 2021,
his complaint will be dismissed without prejudice. The court will
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conduct a 28 U.S.C. § 1915A screening after he pays his initial partial
filing fee.
2. That the institution having custody of Tracy is directed that
whenever the amount in Tracy’s trust account, exclusive of funds
available to him in his frozen account, exceeds $10.00, monthly
payments that equal 20 percent of the funds credited the preceding
month to Tracy’s trust account shall be forwarded to the U.S.
District Court Clerk’s Office under to 28 U.S.C. § 1915(b)(1), until the
$350 filing fee is paid in full.
Dated April 27, 2021.
BY THE COURT:
/s/

Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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