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Gregory Lewandowski v. Jon S. Flemmer

October 19, 2011

GREGORY LEWANDOWSKI,
PLAINTIFF,
v.
JON S. FLEMMER, IN HIS ADMINISTRATIVE CAPACITY,
DEFENDANT.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER DENYING MOTION FOR RECUSAL, GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, AND DISMISSING CASE

Plaintiff, Gregory Lewandowski, moves for leave to proceed in forma pauperis in his pro se civil rights lawsuit against defendant, Judge Jon S. Flemmer in his "administrative" capacity. Lewandowski is incarcerated at the South Dakota State Penitentiary in Sioux Falls, South Dakota. Judge Flemmer is a circuit judge in the Fifth Judicial Circuit in South Dakota.

Lewandowksi alleges that Judge Flemmer deprived him of his rights under the Fifth and Fourteenth Amendments when he held probate proceedings for Lewandowski's children's estates. Lewandowski asserts that his children, Tiffany Rose Lewandowksi and Travis Craig Lewandowski, were enrolled members of the Sisseton Wahpeton tribe, and Judge Flemmer therefore lacked jurisdiction to hold probate proceedings. For these violations, Lewandowski seeks $2 million in compensatory damages, $5 million in punitive damages, and a declaration that the probate proceedings violated his constitutional rights.

Lewandowski also moves to recuse Judge Schreier from presiding over his case. In support of his recusal motion, Lewandowski asserts that "[a]s Karen Schreier presided over Civ. 10-4058 a similar case I would like a different Judge to preside." Docket 4. This is not a ground for recusal. See Slangal v. Getzin, 148 F.R.D. 619, 692 (D. Neb. 1993) (" '[A] judge's prior adverse ruling is not sufficient cause for recusal.' ") (citing United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986)). Therefore, Lewandowski's motion for recusal is denied.

Because the Lewandowski's motion to recuse Judge Schreier is denied, the court considers his motion to proceed in forma pauperis. The Prison Litigation Reform Act (PLRA), 28 U.S.C. 1915, requires prisoners to make an initial partial filing payment where possible, even if in forma pauperis status is sought. "When an inmate seeks in forma pauperis 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) (internal citations omitted). Determination of the partial filing fee 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.

Lewandowski has indicated the average of the monthly deposits to his account is $0 and the average monthly balance of his account is negative $349.69.

Because Lewandowski has a negative balance in his prisoner trust account, the partial filing fee is waived. 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."). Therefore, Lewandowski's motion to proceed in forma pauperis is granted.

But the inquiry does not end there. The PLRA also requires this court to "screen" Lewandowski's complaint to determine whether it should be dismissed. Section 1915 provides an action must be dismissed if the court determines the claim "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief."

STANDARD OF REVIEW

The court must assume as true all facts well pleaded in the complaint. Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995). Also, "although liberally construed, a pro se complaint must contain specific facts supporting its conclusions." Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993) (citations omitted). A plaintiff's 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 Atlantic 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 factual allegations must be "enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true." Id. at 1965; Abdullah v. Minnesota, No. 06-4142, 2008 WL 283693 (8th Cir. Feb. 4, 2008) (citing Twombly and noting complaint must contain either direct or inferential allegations regarding all material elements necessary to sustain recovery under some viable legal theory).

It has long been recognized that "civil rights pleadings should be construed liberally." Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995). The complaint, however, must at the very least contain facts that state a claim as a matter of law and must not be conclusory. Id. Broad and conclusory statements unsupported by factual allegations are not sufficient. Ellingburg v. King, 490 F.2d 1270 (8th Cir. 1974). Finally, although pro se complaints are to be construed liberally, "they must still allege facts sufficient to support the claims advanced." Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). ...


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