Davi v. Cook et al

Filing 5

ORDER granting #2 Motion for Leave to Proceed in forma pauperis. Initial Partial Filing Fee in the amount of 32.76 is due by 11/1/2021. Signed by Chief Judge Roberto A. Lange on 10/5/2021. Mailed to Plaintiff and SDSP Financial Department on 10/5/2021 (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

SCOTT WILLIAM DAVI,

4:21-CV-04160-RAL

Plaintiff,
ORDER GRANTING PLAINTIFF'S
MOTION FOR LEAVE TO PROCEED

vs.

WITHOUT PREPAYMENT OF FEES AND

DARRIN YOUNG,INDIVIDUAL CAPACITY;
ACTING WARDEN DOUG CLARK,

REQURING PLAINTIFF TO PAY AN
INTIAL PARTIAL FILING FEE

OFFICIAL CAPACITY;' WARDEN JESSICA
COOK,INDIVIDUAL AND OFFICIAL
CAPACITY; MEDICAL DIRECTOR MARY
CARPENTER,INDIVIDUAL AND OFFICIAL
CAPACITY; ASSOCIATE WARDEN TROY
PONTO,INDIVIDUAL AND OFFICIAL
CAPACITY; AND D-UNIT COORDINATOR
ANGELA PECHOUS,INDIVIDUAL AND
OFFICIAL CAPACITY;
Defendants.

Plaintiff Scott William Davi filed a pro se lawsuit under 42 U.S.C. § 1983.Doc. l.Davi
is a prisoner at the South Dakota State Penitentiary. Id. at 1. He filed a motion for leave to

proceed without prepayment offees and provided the Court with his prisoner trust account
report. Docs. 2 and 3.

'
Davi originally named Chief Warden Darin Young as a defendant in his individual and original
capacity. Darin Young is no longer the South Dakota Secretary of Corrections Chief Warden.
Under Federal Rule of Civil Procedure 25(d),"[a]n action does not abate when a public officer
who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the
action is pending. The officer's successor is automatically substituted as a party." Fed. R. Civ. P.
25(d). The current Acting Chief Warden is Doug Clark, who is automatically substituted for
Darin Young in Davi's official capacity claim. Davi's individual capacity claim against Darin
Young remains.

Under the Prison Litigation Reform Act(PLRA), a prisoner who "brings a civil action or

flies an appeal in forma pauperis ... shall be required to pay the full amount ofa filing fee." 28
U.S.C.§ 1915(b)(1). The Court may,however, accept partial payment of the initial filing fee
where appropriate. 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 oftime under
an installment plan.'"Henderson v. Norris, 129 F.3d 481,483(8th Cir. 1997)(alteration in
original)(quotingMcGore v. Wrigglesworth. 114F.3d601,604(6thCir. 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 of20 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 6-month
period immediately preceding the filing ofthe complaint or notice ofappeal.

Davi has reported an average monthly balance for the past six months to his prisoner trust
account of$90.65 and an average monthly deposit of$163.79. Doc. 3 at 1. Based on this
information, the Court grants Davi leave to proceed in forma pauperis, but he must pay an initial

partial filing fee of$32.76(20 percent of his average monthly deposit). Davi must pay the initial
partial filing fee ofS32.76 by November 1,2021. His failure to pay the filing fee by November
1, 2021, will result in the dismissal without prejudice of his complaint.
Accordingly, it is

ORDERED that Davi's motion for leave to proceed without prepayment of fees, Doc. 2,

is granted. Davi will make a payment of$32.76 by November 1,2021, made payable to the Clerk,
U.S. District Court. If Davi does not pay the initial partial filing fee by November 1, 2021, his
complaint will be dismissed without prejudice. The Court will conduct a 28 U.S.C. § 1915A
screening after Davi pays his initial partial filing fee. It is finally

ORDERED that the institution having custody of Davi is directed that whenever the
amount in Davi's trust account, exclusive offunds available to him in his frozen account, exceeds

$10.00, monthly payments that equal 20 percent of the funds credited the preceding month to
Davi'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 October

2021.
BY THE COURT:

ROBERTO A. LANGE

CHIEF JUDGE