Gomez v. City of Sioux Falls et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DANIEL JOSE GOMEZ,
Plaintiff,
vs.
CITY OF SIOUX FALLS; MINNEHAHA
COUNTY; ROBIN HOUWMAN,JUDICIAL
OFFICER AT MINNEHAHA COUNTY
CIRCUIT COURT,INDIVIDUAL AND
OFFICIAL CAPACITY; BRADLEY ZELL,
JUDICIAL OFFICER AT MINNEHAHA
COUNTY CIRCUIT COURT,INDIVIDUAL
AND OFFICIAL CAPACITY,
Defendants.
4:22-CV-04147-RAL
ORDER GRANTING PLAINTIFF'S
MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS AND REQURING
PLAINTIFF TO PAY AN INTIAL PARTIAL
FILING FEE
Plaintiff Daniel Jose Gomez filed a pro se lawsuit under 42 U.S.C. § 1983, 28 U.S.C. §
1331, Bivens v. Six Unknown Federal Narcotics Agents. 403 U.S. 388 (1971), and other federal
statutes. Doc. I. Gomez is an inmate at the Minnehaha County Jail. Id at 1. He filed a motion
for leave to proceed in forma pauperis and provided the Court with his prisoner trust account
report. Docs. 3, 4.
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 of the proceeding or over a period of time under an installment
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plan." Henderson v. Norris. 129 F.3d 481,483(8th Cir. 1997)(per curiam)(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 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.
Gomez reports an average monthly balance for the past six months in his prisoner trust account
of$26.52 and an average monthly deposit of $77.21. Doc. 4 at 1. Based on this information, the
Court grants Gomez leave to proceed in forma pauperis, but he must pay an initial partial filing
fee of $15.44 (20 percent of his average monthly deposit). Gomez must pay the initial partial
filing fee of $15.44 by November 28, 2022. His failure to pay the filing fee by November 28,
2022, will result in the dismissal without prejudice of his complaint.
Accordingly, it is
ORDERED that Gomez's motion for leave to proceed in forma pauperis. Doc. 3, is
granted. Gomez will make a payment of $15.44 by November 28, 2022, made payable to the
Clerk, U.S. District Court. If Gomez does not pay the initial partial filing fee by November 28,
2022, his complaint will be dismissed without prejudice. The Court will conduct a 28 U.S.C.
§ 1915A screening after Gomez pays his initial partial filing fee. It is finally
ORDERED that the institution having custody of Gomez is directed that whenever the
amount in Gomez's trust account, exclusive of funds available to him in his frozen account,
exceeds $10.00, monthly payments that equal 20 percent ofthe funds credited the preceding month
to Gomez'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.
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DATED October 2022.
BY THE COURT:
ROBERTO A. LANTjE
CHIEF JUDGE
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