Creek v. South Dakota Department of Corrections , 25 F. App'x 479 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-2974
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Clayton S. Creek, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
South Dakota Department of, *
Corrections; South Dakota State * [UNPUBLISHED]
Penitentiary *
*
Appellees. *
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Submitted: November 30, 2001
Filed: December 18, 2001
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Before BOWMAN, BRIGHT, and LOKEN, Circuit Judges.
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PER CURIAM.
South Dakota inmate Clayton S. Creek appeals the district court's dismissal
without prejudice of his 42 U.S.C. § 1983 action for failure to make an initial partial
filing fee.
In January 2001, Creek filed a motion with the South Dakota Supreme Court
concerning prison officials who violate prison policies that protect access to religious
objects, such as ceremonial pow-wow wacipi, medicine pouches, and eagle parts.
Because the South Dakota Supreme Court returned Creek's motion without taking
action on the motion, Creek filed a § 1983 claim alleging that his equal protection and
due process rights were violated. Creek also alleged that prison officials prevented
Native American inmates from participating in religious ceremonies, which Creek
asserted pose no threat to security, discipline or good order.
After receiving Creek's in forma pauperis (IFP) application and Prisoner Trust
Account Report, the district court granted Creek IFP status, ordered him to pay an
initial partial filing fee of $.03 on or before April 1, 2001, and ordered the custodial
institution to forward to the clerk's office 20% of the funds credited to Creek's prison
account from the previous month, whenever the account balance exceeds $10. On
July 2, 2001, the court dismissed the case without prejudice for failure to make the
initial partial filing fee of $.03 by April 1. The court also denied all pending motions
as moot.
Creek filed a timely notice of appeal and after remand from this court to
determine whether Creek should be allowed to proceed IFP on appeal, the district
court granted him IFP status and assessed appellate filing fees pursuant to 28 U.S.C.
§ 1915(b)(2). The court ordered an initial partial fee payment for appellate docketing
and filing fees in the amount of $.02 to be paid on or before September 15, 2001, and
the balance to be paid off in the same manner as described above.
We now determine that the district court improperly dismissed Creek's claim
for failing to pay the initial partial filing fee of $.03 by the deadline of April 1.
Creek's Prisoner Trust Account Report indicated that he had a negative balance, and
there is no indication in the record that he ever had a positive balance. See 28 U.S.C.
§ 1915(b)(4) ("In no event shall a prisoner be prohibited from bringing a civil action
or appealing a civil or criminal judgment for the reason that the prisoner has no assets
or no means by which to pay the initial partial filing fee.").
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We vacate the dismissal and remand to the district court for such action as may
be appropriate.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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