Thomas v. Houwman et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JOHNNY JAY THOMAS,
Plaintiff,
vs.
HECTOR SOTO, Detective, Supervisor at
Sioux Falls Police Department, in his
individual and official capacity;
DETECTIVE NYBERG, Detective at Sioux
Falls Police Department, in his or her
individual and official capacity;
DETECTIVE FLOGSTAD, Detective at
Sioux Falls Police Department, in his or
her individual and official capacity;
UNKNOWN OFFICER, Detective at Sioux
Falls Police Department; in his or her
individual and official capacity; ROBIN
HOUWMAN, Judge at Minnehaha County
SD, in her individual and official
capacity; UNKNOWN DOCTOR, Doctor at
Avera Hospital, in his or her individual
and official capacity,
Defendants.
4:22-CV-04113-KES
ORDER GRANTING PLAINTIFF’S
MOTION TO APPEAL WITHOUT
PREPAYMENT OF FEES
Plaintiff, Johnny Jay Thomas, an inmate at the Yankton Community Work
Center,1 filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Docket 1.
Judgment was entered against Thomas, and he filed a notice of appeal. Dockets 8,
9. Now, Thomas moves to appeal without prepayment of fees and has provided his
prisoner trust account report. Dockets 10, 11.
1 Thomas was an inmate at the Minnehaha County Jail when he first filed this
lawsuit. Doc. 1 at 1. He has since been transferred to the Yankton Community
Work Center. See Doc. 6 at 1.
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Under the Prison Litigation Reform Act (the “Act”), a prisoner who “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). This obligation arises “the moment the prisoner . . .
files an appeal.” Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (per
curiam) (omission in original) (quoting In re Tyler, 110 F.3d 528, 529–30 (8th Cir.
1997)). “[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 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 Court of Appeals set forth “the procedure
to be used to assess, calculate, and collect” appellate filing fees in compliance with
the Act. Id. 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
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assets and no means by which to pay the initial partial filing fee.” 28 U.S.C.
§ 1915(b)(4).
It appears that Thomas’s appeal is taken in good faith. Because Thomas’s
prisoner trust account report (Docket 11) shows an average monthly deposit of
$18.21 and an average monthly balance of negative $3.30, the court finds that
§ 1915(b)(1) applies and waives his initial partial filing fee.
Thus, it is ORDERED:
1. That Thomas’s motion for leave to appeal without prepayment of fees
(Docket 10) is granted.
2. That the institution having custody of Thomas is directed that whenever
the amount in Thomas’s trust account, exclusive of funds available to him
in his frozen account, exceeds $10, monthly payments that equal 20
percent of the funds credited to the account the preceding month shall be
forwarded to the United States District Court Clerk’s office pursuant to 28
U.S.C. § 1915(b)(2), until the appellate filing fee of $505 is paid in full.
Dated December 6, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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