Cortez v. Kapla

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION ADRIANO ALAIN CORTEZ, 4:25-CV-04146-CCT Plaintiff, ORDER GRANTING PLAINTIFF’S vs. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND CHAD KAPLA, Unit Manager, FPC REQUIRING PLAINTIFF TO PAY AN Yankton; and E. PENROSE, Assistant INITIAL PARTIAL FILING FEE Warden, FPC Yankton, Defendants. Plaintiff, Adriano Alain Cortez, an inmate at the Yankton Federal Prison Camp, filed a pro se civil rights lawsuit. Docket 1. Cortez moves for leave to proceed in forma pauperis and submitted a copy of his prisoner trust account report. Dockets 2, 3. 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. Thus, “[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.” 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 of the complaint or notice of appeal. Cortez reports an average monthly deposit of $276.35 and an average monthly balance of $134.00. Docket 3 at 1. Based on the information regarding Cortez’s prisoner trust account, the court grants Cortez leave to proceed in forma pauperis, but he must pay an initial partial filing fee of $55.27 (20 percent of his average monthly deposit). Cortez must pay the initial partial filing fee of $55.27 by September 4, 2025. Failure to pay the initial partial filing fee by September 4, 2025, will result in dismissal without prejudice of Cortez’s complaint for failure to prosecute. Thus, it is ORDERED: 1. That Cortez’s motion for leave to proceed in forma pauperis (Docket 2) is granted. Cortez must make a payment of $55.27 by September 4, 2025, made payable to the Clerk, U.S. District Court. If Cortez does not pay the initial partial filing fee by September 4, 2025, his complaint will be dismissed without prejudice for failure to prosecute. 2. That the Clerk of Court will send a copy of this order to the appropriate financial official at Cortez’s institution. 3. That the institution having custody of Cortez is directed that whenever the amount in Cortez’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 Cortez’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. Dated August 6, 2025. BY THE COURT: /s/ Camela C. Theeler CAMELA C. THEELER UNITED STATES DISTRICT JUDGE