Filing 7

ORDER granting 5 Motion for Leave to Proceed in forma pauperis; granting 1 Motion to Proceed Under Pseudonym. Signed by U.S. District Judge Karen E. Schreier on 8/18/2020. (CLR) Modified on 8/18/2020 delivered to Plaintiff and Financial Dept. at Mike Durfee State Prison via USPS (CLR).

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
5:20-MC-00019-KES

KEVIN L. HUGHBANKS,
vs.

Plaintiff,

BRETT FLUKE, Warden of Mike Durfee
State Prison, et. al.,

ORDER GRANTING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS AND GRANTING MOTION
TO PROCEED UNDER PSEUDONYM

Defendants.
Plaintiff, Kevin L. Hughbanks, moves to proceed under pseudonym and
for leave to proceed in forma pauperis. Dockets 1, 5. Hughbanks has filed his
prisoner trust account report. Docket 6.
I.

Motion to Proceed In Forma Pauperis
When a party files a miscellaneous motion with the court the fee due is

$47.00. In his prisoner trust account report, Hughbanks reports average
monthly deposits of $31.92 and an average monthly balance of $3.16. Docket
6. Under the Prison Litigation Reform Act (PLRA), 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). “ ‘[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 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)).

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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.

28 U.S.C. § 1915(b)(1)(A-B). Based on the information regarding Hughbanks’s
prisoner trust account, the court grants Hughbanks leave to proceed in forma
pauperis on his miscellaneous motion and waives the initial partial filing fee.
See 28 U.S.C. § 1915(b)(4) (“In no event shall a prisoner be prohibited from
bringing a civil action . . . for the reason that the prisoner has no assets and no
means by which to pay the initial partial filing fee.”).
In order to pay his filing fee of $47.00, Hughbanks must “make monthly
payments of 20 percent of the 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 of the 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 of the 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 of Court will send a copy of this order to the appropriate
financial official at Hughbanks’s institution. Hughbanks remains responsible

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for the entire filing fee, as long as he is a prisoner. See In re Tyler, 110 F.3d
528, 529-30 (8th Cir. 1997). If Hughbanks files an action under § 1983 he will
need to file a new motion to proceed in forma pauperis and prisoner trust
account report. The filing fee to bring a civil action in district court is $400.00
(if a plaintiff is granted in forma pauperis status the filing fee is $350.00).
II.

Motion to Proceed Under Pseudonym
Hughbanks seeks to proceed under the pseudonym of “Patrick James” in

order to file an action under 42 U.S.C. § 1983. Docket 1. Hughbanks asserts
that the nature of his claims puts him at risk of physical danger when he is
released and that his medical information is highly sensitive. Id. at 1.
Hughbanks understands that defendants will need to know his name when
and if they are served with his complaint. Id. at 2. The court finds that
Hughbanks has shown good cause to justify the use of a pseudonym and
grants Hughbanks’s motion to proceed under pseudonym but requires him to
use the pseudonym of “XX” to avoid confusion with another inmate.
Thus, it is ORDERED:
1. That Hughbanks’s motion for leave to proceed in forma pauperis
(Docket 5) is granted.
2. That the institution having custody of Hughbanks is directed that
whenever the amount in Hughbanks’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 Hughbanks’s trust account shall be forwarded to the U.S.

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District Court Clerk’s Office under to 28 U.S.C. § 1915(b)(1), until the
$47.00 filing fee is paid in full.
3. That Hughbanks’s motion to proceed under pseudonym (Docket 1) is
granted. Hughbanks may proceed by using the pseudonym of “XX.”
Dated August 18, 2020.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE