White v. LaBelle et al

FILED
UNITED STATES DISTRICT COURT JUH 3 G 2022
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
DION WHITE, I:22-CV-01007-CBK
Plaintiff,
ORDER
vs.
JOANN LABELLE,Nurse, and ROBERTS
COUNTY JAIL,
Defendants.
Plaintiff is a pretrial detainee at the Codington County Jail in Watertown, South
Dakota. He has filed a pro se complaint and an application to proceed without the
prepayment of fees. Plaintiff has made the requisite showing under 28 U.S.C. § 1915.
Under the Prison Litigation Reform Act,"if a prisoner brings a civil action or files an
appeal in forma pauperis, the prisoner shall be required to pay the fiill amount of a filing
fee." 28 U.S.C. § 1915(b)(1). Plaintiff must pay the full $350 filing fee notwithstanding
whether or not the matter is subsequently dismissed as frivolous after review under 28
U.S.C. § 1915(e)(2).
A prisoner must pay, as an initial partial filing fee, 20% of the greater of the
average monthly deposits to the prisoner's account or the average monthly balance of the
prisoner's account for the last six months. 28 U.S.C. § 1915(b)(1)(A) and (B). The
Court finds that plaintiff is required to make an initial partial filing fee of$60.40.
The Prison Litigation Reform Act requires the Court to screen prisoner complaints
and dismiss any complaint that is "(1) fi"ivolous, malicious, or fails to state a claim upon
which relief may be granted or(2)seeks monetary relief fi-om a defendant who is
immune from such relief." 28 U.S.C. § 1915A(b). I am required to give the plaintiffs
pro se complaint liberal construction and identify any discemable cognizable claim.
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Solomon v. Petrav. 795 F.3d 111, 787(8th Cir. 2015). I have conducted an initial review
as required by § 1915A.
Plaintiff states in his pro so complaint that he was prescribed hydrocodone for
chronic back pain due to bulging and hemiated discs, that Nurse LaBelle denied giving
plaintiff his prescribed medication, and that denial of his prescribed medication was in
violation of the Eighth Amendment, quoting Estelle v. Gamble. 429 U.S. 97.
The United States Supreme Court held in Estelle v. Gamble, that:
deliberate indifference to serious medical needs of prisoners constitutes the
"unnecessary and wanton infliction of pain" proscribed by the Eighth
Amendment. This is true whether the indifference is manifested by prison
doctors in their response to the prisoner's needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed. Regardless of how
evidenced, deliberate indifference to a prisoner's serious illness or injury
states a cause of action under § 1983.
Estelle V. Gamble.429 U.S. 97, 104-05, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976)
(internal citation omitted). "To prove his deliberate indifference claim,[plaintiff] must
show:'(1) he suffered from an objectively serious medical need, and (2) defendants knew
ofthe need yet deliberately disregarded it.'" Johnson v. Leonard. 929 F.3d 569, 575 (8th
Cir. 2019)(quoting Elartsfleld v. Colbum,371 F.3d 454,457(8th Cir. 2004)).
I have conducted an initial review ofthe amended complaint as required by
§ 1915A. Construing plaintiffs complaint liberally, plaintiffs complaint claims
defendants were deliberately indifferent to his serious medical need in violation ofthe
Eighth Amendment to the United States Constitution. When a plaintiff is granted leave
to file a federal complaint without prepayment of fees, the district court may order the
service of process pursuant to 28 U.S.C. § 1915(d).
Based upon the foregoing,
IT IS ORDERED:
1. Plaintiffs application, Doc. 3, to proceed without the prepayment of the filing
fee is granted.
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2. Plaintiff shall pay an initial filing fee in the amount of$60.40 to the Clerk of
the U.S. District Court, 225 S. Pierre Street, Pierre, SO, 57501, on or before July 29,
2022. Failure to do so may result in dismissal ofthis action for failure to prosecute.
3. Whenever the amount in plaintiffs trust account exceeds $10.00, the institution
having custody of the plaintiff is hereby directed to forward monthly payments that equal
20% ofthe funds credited the preceding month to the plaintiffs trust account to the U.S.
District Court Clerk's office pursuant to 28 U.S.C. § 1915(b)(2), until the $350.00 filing
fee is paid in fiill.
4. The Clerk of Court shall send a copy of this order to the appropriate official at
plaintiffs institution.
5. Upon payment ofthe initial filing fee, the Clerk of Court shall provide plaintiff
a separate summons and USM-285 form for each defendant. Plaintiff shall compete and
return to the Clerk of Court a separate summons and USM-285 form for each defendant.
Upon receipt ofthe completed summons and USM-285 forms, the Clerk of Court will
issue the summonses.
6. The United States Marshals Service shall serve a copy of the summons and
amended complaint upon the individual defendants pursuant to SDCL 15-6-4(d)(8). All
costs of service shall be advanced by the United States.
7. In the event plaintiff makes a recovery under the complaint, plaintiff shall
reimburse the government for any filing and service fees that have been advanced.
8. Ifthe plaintiff fails to complete and return summons and the USM-285 forms
as directed, this matter will^ dismissed for failure to prosecute.
DATED this^ ^d^ of June, 2022.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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