UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION
December 14, 2011
CITY OF TEA AND COUNCIL; JOHN LAWLER, MAYOR; DAWN MURPHY, FINANCE OFFICER; SID MUNDSON, COUNCIL MEMBER; DICK DUNBRO, (FORMER) CHIEF OF POLICE; BRIAN FOWLDS, COUNCIL MEMBER; JOE WEISS, COUNCIL MEMBER PRESIDENT; HERMAN OTTEN, COUNCIL MEMBER; TODD BOOTS, COUNCIL MEMBER; CHUCK ORTMEIER, COUNCIL MEMBER; DEFENDANTS.
The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING CASE
Plaintiff, Kelly Haugen, filed a pro se lawsuit on November 14, 2011. The complaint names as defendants the City of Tea and its city council, various city officials and members of the city council, and a former police officer. Haugen moves for leave to proceed in forma pauperis in her lawsuit against defendants.
A federal court may authorize the commencement of suit without prepayment of fees when an applicant files an affidavit stating he is unable to pay the costs of the lawsuit. 28 U.S.C. § 1915. In forma pauperis status is a privilege rather than a right. See, e.g., Williams v. McKenzie, 834 F.2d 152, 154 (8th Cir. 1987) (discussing the right to proceed in forma pauperis in a nonprisoner case). Determining whether an applicant is sufficiently impoverished to qualify to proceed in forma pauperis under § 1915 is committed to the court's discretion. Cross v. Gen. Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983). "In forma pauperis status does not require a litigant to demonstrate absolute destitution." Lee v. McDonald's Corp., 231 F.3d 456, 459 (8th Cir. 2000). In her affidavit, Haugen indicates that her monthly expenses exceed her income. Docket 3-1. Haugen also states that her husband lost his job in October 2010 and was injured in a car accident in March 2011 and that the resulting medical bills are "skyrocketing." Id.
But the inquiry does not end there. Under § 1915, this court must review the claims in the complaint to determine if they are "(i) frivolous or malicious; (ii) fail to state a claim on which relief may be granted; or (iii) seek monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(b). "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). Broad and conclusory statements unsupported by factual allegations are not sufficient. Ellingburg v. King, 490 F.2d 1270 (8th Cir. 1974). If the allegations in a pro se complaint are not sufficient to "nudge [ ] claims across the line from conceivable to plausible, [the] complaint must be dismissed" for failure to state a claim upon which relief may be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Haugen asserts a number of claims against defendants. She appears to be citing South Dakota statutes in support of her allegations. Her allegations are the following: "22-19A-4 harasses (pornography at school); 22-19A-1 stalking (pornography at school); 22-11-10 compounding a felony or misc. (porn brought to the attention of Mayor Lawler, no action taken); 22-24-55 public school restricted; 20-13-26 aiding, 60-2-16 employer- misc." Docket 1.*fn1 Haugen seeks a public apology from the mayor and $500,000 in damages for the fear of losing her job and her husband losing his job. Id.
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). Haugen has not identified a federal cause of action or a basis for federal jurisdiction in her complaint. Accordingly, her complaint, as it is currently pleaded, fails to establish federal jurisdiction or state a claim upon which relief may be granted. Thus, Haugen's complaint is dismissed pursuant to 28 U.S.C. § 1915. Therefore, it is
ORDERED that Haugen's motion for leave to proceed in forma pauperis (Docket 7) is granted.
IT IS FURTHER ORDERED that Haugen's complaint is dismissed without prejudice pursuant to 28 U.S.C. § 1915 and all pending motions (Docket 4, 8) are denied.
BY THE COURT:
Karen E. Schreier