Opinion
4:20-CV-04137-KES
12-29-2020
TYE ALLEN PINGEON, Plaintiff, v. DOC, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND ORDER DISMISSING COMPLAINT
Plaintiff, Tye Allen Pingeon, an inmate at the South Dakota State Penitentiary filed a pro se lawsuit under 42 U.S.C. § 1983. Docket 1. Pingeon moves for leave to proceed in forma pauperis and provided the court with his prisoner trust account report. Dockets 3, 6.
I. Motion to Proceed Without Prepayment of Fees
Pingeon reports average monthly deposits of $17.06 and an average monthly balance of negative $11.43. 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)).
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; orBased on the information regarding Pingeon's prisoner trust account, the court grants Pingeon leave to proceed without prepayment of fees 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.").
(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.
In order to pay his filing fee, Pingeon 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 Pingeon's institution. Pingeon remains responsible 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).
II. 1915A Screening
A. Factual Background
The facts alleged in Pingeon's complaint (Docket 1) are: that he was raped by his cellmate in February of 2019. Docket 1 at 5. Pingeon informed a prison guard after the incident and received medication. Id. at 5, 8. He suffered from physical injuries and received counseling. Id. at 5. Pingeon requests $100,000 in damages. Id.
B. Legal Standard
The court must assume as true all facts well pleaded in the complaint. Estate of Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995). Civil rights and pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). Even with this construction, "a pro se complaint must contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985); see also Ellis v. City of Minneapolis, 518 F. App'x 502, 504 (8th Cir. 2013). Civil rights complaints cannot be merely conclusory. Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993); Parker v. Porter, 221 F. App'x 481, 482 (8th Cir. 2007).
A complaint "does not need detailed factual allegations . . . [but] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). If it does not contain these bare essentials, dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). Twombly requires that a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all of the complaint's allegations are true." Twombly, 550 U.S. at 555; see also Abdullah v. Minnesota, 261 F. App'x 926, 927 (8th Cir. 2008) (noting that a complaint must contain either direct or inferential allegations regarding all material elements necessary to sustain recovery under some viable legal theory). Under 28 U.S.C. § 1915A, the court must screen prisoner complaints and dismiss them if they "[are] (1) frivolous, malicious, or fail[] to state a claim upon which relief may be granted; or (2) seek[] monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b).
C. Legal Analysis
Pingeon is an inmate at the South Dakota State Penitentiary and names the Department of Corrections as the sole defendant. Docket 1. The Department of Corrections was created by the state legislature. SDCL § 1-15-1.2. A subdivision or department of a government entity is not a juridical entity suable under § 1983. See Ketchum v. City of West Memphis, AR, 974 F.2d 81, 82 (8th Cir. 1992). Because the Department of Corrections is a department of the state, it is not a suable entity under § 1983. Thus, the Department of Corrections is dismissed as a defendant and Pingeon's claim against it is dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and 1915A(b)(1).
Thus, it is ORDERED:
1. That Pingeon's motion for leave to proceed in forma pauperis (Docket 3) is granted.
2. That the institution having custody of Pingeon is directed that whenever the amount in Pingeon'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 Pingeon's trust account shall be forwarded to the U.S. District Court Clerk's Office under to 28 U.S.C. § 1915(b)(1), until the $350 filing fee is paid in full.
3. That Pingeon's complaint is dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and 1915A(b)(1).
Dated December 29, 2020.
BY THE COURT:
/s/_________
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE