Tripp v. U.S. Federal Government

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

KEVIN CHRISTOPHER MICHEAL 4:19-CV-04143-KES TRIPP,

Plaintiff, ORDER GRANTING PLAINTIFF’S vs. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL U.S. FEDERAL GOVERNMENT, IN ITS INDIVIDUAL AND OFFICIAL CAPCITY; MATTHEW THELEN, FEDERAL CLERK OF COURTS, IN HIS INDIVIDUAL AND OFIFCIAL CAPACITY; AND JASON RAVNSBORG, ATTORNEY GENERAL OF SOUTH DAKOTA, IN HIS INDIVIDUAL AND OFFICIAL CAPCITY;

Defendants.

Plaintiff, Kevin Christopher Micheal Tripp, filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Docket 1. This court screened Tripp’s amended complaint (Docket 8-1), dismissed the complaint without prejudice, and assessed Tripp with his first strike under 28 U.S.C. § 1915(g). Docket 10. Judgment was entered against Tripp and he filed a notice of appeal. Dockets 11 and 12. Tripp moves for leave to proceed in forma pauperis on appeal and filed his prisoner trust account report. Dockets 13 and 14. Under the Prison Litigation Reform Act (PLRA), a prisoner who “files an appeal in forma pauperis . . . [is] required to pay the full amount of a filing fee.” 28 U.S.C. § 1915(b)(1). This obligation arises “ ‘the moment the prisoner . . . files an appeal.’ ” Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (quoting In re Tyler, 110 F.3d 528, 529–30 (8th Cir. 1997)). “ ‘When 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.’ ” Id. (quoting McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997)). “[P]risoners who appeal judgments in civil cases must sooner or later pay the appellate filing fees in full.” Id. (citing Newlin v. Helman, 123 F.3d 429, 432 (7th Cir. 1997)). In Henderson, the Eighth Circuit set forth “the procedure to be used to assess, calculate, and collect” appellate filing fees in compliance with the PLRA. 129 F.3d at 483. First, the court must determine whether the appeal is

taken in good faith. Id. at 485 (citing 28 U.S.C. § 1915(a)(3)). Then, so long as the prisoner has provided the court with a certified copy of his prisoner trust account, the court must “calculate the initial appellate partial filing fee as provided by § 1915(b)(1), or determine that the provisions of § 1915(b)(4) apply.” Id. The initial partial filing fee must be 20 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 of the complaint or notice of appeal.

28 U.S.C. § 1915(b)(1). Nonetheless, no prisoner will be “prohibited from . . . appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.” 28 U.S.C. § 1915(b)(4). 2 It appears that Tripp’s appeal is taken in good faith. Further, he has provided the court with a report of his prisoner trust account, which indicates that he has average monthly deposits of $10.84 and an average monthly

balance of negative $28.59. Docket 14. Based on this information, the court waives Tripp’s initial filing fee. In order to pay his filing fee, Tripp must Amake 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 the court will send a copy of this order to the appropriate financial official at Tripp’s institution. Tripp will remain responsible for the entire filing fee, as long as he is a prisoner, even if the case is dismissed at some later time. See In re Tyler, 110 F.3d 528, 529B30 (8th Cir. 1997). IT IS ORDERED:

1. That Tripp’s motion to proceed in forma pauperis on appeal (Docket 13) is granted. 3 2. The institution having custody of Tripp is directed that whenever the amount in Tripp’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 the Tripp’s trust account shall be forwarded to the U.S. District Court Clerk’s Office under to 28 U.S.C. § 1915(b)(2), until the $505 appellate filing fee is paid in full. Dated January 9, 2020. BY THE COURT:

/s/ Karen E. Schreier KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE