Jogaak v. Hanson

Filing 9

ORDER granting #3 Motion for Leave to Proceed in forma pauperis; denying #2 Motion to Appoint Counsel AND Requiring Plaintiff to Pay an Initial Partial Filing Fee. Signed by U.S. District Judge Lawrence L. Piersol on 08/02/2022. Mailed to Plaintiff & SDSP Financial Department. (VMM)

Case 4:22-cv-04102-LLP Document 9 Filed 08/02/22 Page 1 of 3 PageID #: 35

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

JOGAAK D. JOGAAK,a/k/a Jogaak Jogaak,

4:22-CV-04102-LLP

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

vs.

FORMA PAUPERIS AND REQURING
SANDRA HOGLUND HANSON,Circuit Court

PLAINTIFF TO PAY AN INTIAL PARTIAL

Judge,

FILING FEE
Defendant.

Plaintiff, Jogaak D. Jogaak, an inmate at the South Dakota State Penitentiary, filed a pro

se civil rights lawsuit under 42 U.S.C. § 1983. Doc. I. Jogaak moves for leave to proceed in
forma pauperis and has included his prisoner trust account report. Docs. 3, 4. Jogaak also moves
for appointment of counsel. Doc. 2.
I. Motion for Leave to Proceed in Forma Pauperis

Under the Prison Litigation Reform Act, a prisoner who "brings 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). 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 ofthe proceeding or over a period oftime under an
installment plan." Henderson v. Norris, 129 F.3d 481,483 (8th Cir. 1997)(alteration in original)

(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 ofthe greater of:
(A)

the average monthly deposits to the prisoner's account; or

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(B)

the average monthly balance in the prisoner's account for the 6-month

period immediately preceding the filing ofthe complaint or notice ofappeal.

Jogaak filed a prisoner trust account report that shows his average monthly deposits for
the past six months as $66.69 and his average monthly balance for the past six months as $35.91.
Doc.4 at 1. Based on this information, the Court grants Jogaak leave to proceed in forma

pauperis. Jogaak must pay the initial partial filing fee of $13.34, which is 20 percent of his

average monthly deposit for the past six months ($66.69). Jogaak must pay his initial partial
filing fee of$13.34 by September 1, 2022. Failure to pay the filing fee by September 1, 2022,
will result in dismissal without prejudice of Jogaak's complaint.

In order to pay the remainder of his filing fee, Jogaak must"make monthly payments of
20 percent ofthe preceding month's income credited to the prisoner's account." 28 U.S.C.
§ 1915(b)(2). The statute places the burden on the prisoner's institution to collect the additional
monthly payments and forward them to the Court as follows:

After payment ofthe initial partial filing fee, the prisoner shall be required to make
monthly payments of 20 percent of the preceding month's income credited to the
prisoner's account. The agency having custody of the prisoner shall forward
payments from the prisoner's account to the clerk ofthe court each time the amount

in the account exceeds $10 until the filing fees are paid.

28 U.S.C. § 1915(b)(2). The installments will be collected pursuant to this procedure.
The clerk,ofthe court will send a copy ofthis order to the appropriate financial official

at plaintiffs institution. Jogaak will remain responsible for the entire filing fee as long as he is a
prisoner, even ifthe case is dismissed at some later time. See In re Tyler, 110 F.3d 528, 529-30
(8th Cir. 1997).

II. Motion for Appointment of Counsel

Jogaak has filed a motion to appoint counsel. Doc. 2."A pro se litigant has no statutory
or constitutional right to have counsel appointed in a civil case." Stevens v. Redwing, 146 F.3d

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538, 546(8th Cir. 1998). In determining whether to appoint counsel to a pro se litigant, the
Court considers the complexity ofthe case, the ability ofthe litigant to investigate the facts, the
existence of conflicting testimony, and the litigant's ability to present his claims. Id. At this

time, Jogaak's claims do not appear to be too complex, and Jogaak is able to investigate the

facts and present his claims adequately. The Court remains open to the possibility of appointing
counsel if this case proceeds beyond the motion stage. It is one thing to well represent one's

position on paper to the court, and it is yet another to be able to adequately try a case to a jury.
Thus, this Court denies Jogaak's motion to appoint counsel.
Thus, it is ORDERED:

1. That Jogaak's motion to proceed in forma pauperis(Doc. 3)is granted.
2. Jogaak must pay his initial partial filing fee of $13.34 by September 1, 2022, or his
complaint will be dismissed without prejudice. The Court will conduct a 28 U.S.C.

§ 1915A screening after he pays his initial partial filing fee.
3. That the institution having custody of Jogaak is directed that whenever the amount in

Jogaak'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 Jogaak's trust account shall be forwarded to the U.S. District Court

Clerk's Office under 28 U.S.C. § 1915(b)(1) until the $350 filing fee is paid in full.
4. That Jogaak's motion for appointment of counsel(Doc. 2)is denied.
DATED August

,2022.

ATTEST:

MATTHEW W. THELEN, CLERK

United States District Judge