Davi v. Young 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)

Download PDF
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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?