The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT
Plaintiff, Daniel R. Dalrymple, filed a pro se civil rights lawsuit against defendants. Dalrymple is incarcerated at Mike Durfee State Prison in Springfield, South Dakota. Dalrymple moves for leave to proceed in forma pauperis in his lawsuit.
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.
Dalrymple has indicated the average of the monthly deposits to his account is $105, and the average monthly balance of his account is $46.25. See Docket 4, Prisoner Trust Account Report. Dalrymple must make an initial partial filing fee of $21, which is 20 percent of $105. Thus, Dalrymple is granted in forma pauperis status.
But the inquiry does not end there. The PLRA also requires this court to "screen" Dalrymple'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."
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). The court is not required to supply additional facts for a pro se plaintiff, nor construct a legal theory that assumes facts which have not been pleaded. Id. To state a claim for relief under § 1983, a plaintiff must allege sufficient facts to show (1) that the defendants acted under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right. Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010) (internal citations omitted).
Dalrymple first claims that Unit Coordinator Travis Tjeerdsma improperly confiscated his wedding ring. According to Dalrymple, Tjeerdsma confiscated the ring, asserting that it was not on Dalrymple's property list. Dalrymple asks that his ring be returned to him and that prison records be corrected so the ring is listed on his property list. He also asks for punitive damages and a written apology. Although Dalrymple filed his complaint on the form the court provides for civil rights actions pursuant to 42 U.S.C. § 1983, he did not identify the constitutional rights he believes the defendants violated when they confiscated his wedding ring.
In Hudson v. Palmer, 468 U.S. 517, 533 (1984), the United States Supreme Court held that intentional deprivations of property do not violate the due process clause when adequate state post-deprivation remedies are available.There are adequate remedies available to Dalrymple under South Dakota law. For example, Dalrymple may bring a tort action in state court to recover his ring or bring suit in small claims court for up to $12,000 in damages. See, e.g., SDCL 15-39-45.1 (setting the jurisdictional amount of $12,000); Devitt v. Hayes, 551 N.W.2d 298 (S.D. 1996) (explaining that "[t]he small claims procedure is an alternative to the formal procedure for actions begun by summons"). Thus, Dalrymple has failed to state a constitutional claim for the confiscation of his wedding ring, and his claim is dismissed pursuant to 28 U.S.C. § 1915.
Dalrymple next claims that his rights were violated when prison officials refused to add him to the "2012 Passover meal list for the Jewish Holiday Meals." Docket 1 at 5. Dalrymple alleges that Cultural Affairs Coordinator Jim Halsey told Dalrymple that he would not be added to the list because he did not attend weekly Jewish religious services. Id. Dalrymple asserts that he explained that he "studie[s] on [his] own because of major conflicts of interest at the service." Id. Dalrymple asks that he be ...