United States District Court, D. South Dakota, Northern Division
OPINION AND ORDER ON MOTIONS TO PROCEED IN FORMA PAUPERIS
CHARLES B. KORNMANN, District Judge.
Plaintiff filed a pro se complaint in CIV 14-1011 alleging that his federal constitutional rights were violated in conjunction with his arrest and conviction in Roberts County, South Dakota, for assault and domestic violence. Plaintiff seeks a refund of fines and court costs assessed as a result of his state court criminal convictions, removal of the Roberts County lien in the amount of $6, 100 for court appointed attorney fees, a monetary judgement of $500, 000.00 against the Unified Judicial System ("UJS"), and $100, 000 each against the bond insurance and Judge Anderson. He seeks class certification as to his claim that the defendants violated "the 48 hour rule, " a subsequent order vacating all misdemeanor convictions in South Dakota since 1996 with prejudice, an order vacating all felony convictions without prejudice, and $300, 000 against the UJS for class members. Finally he seeks $5, 000 a day per detainee/arrestee who was not released within 48 hours. He seeks an award of exemplary damages. He contends he is entitled to relief under 42 U.S.C. § 1983.
Plaintiff filed a pro se complaint in CIV 14-1012 alleging that his federal constitutional rights were violated in conjunction with his December 2009 conviction for driving while under the influence of alcoholic beverages. He seeks a stay of all proceedings and of enforcement of the sentence and judgment, an order requiring Judge Anderson to vacate his order that plaintiff pay back court appointed attorney fees of $33, 000, an order that the Roberts County Auditor and Roberts County Register of Deeds expunge the attorney fee lien, an order suppressing all evidence, an order to vacate his conviction, and refund of $2, 200 he paid for fines, bonds and fees. He states in the caption that he is seeking alternatively a writ of audita querela or coram nobis.
I. In Forma Pauperis.
Plaintiff has filed an application to proceed without the prepayment of fees and a motion for appointment of counsel in both cases. 28 U.S.C. § 1915(a)(1) authorizes district courts to allow civil litigants to commence suit without the prepayment of the filing fee. Determining whether an applicant is sufficiently impoverished to qualify to proceed in forma pauperis under § 1915 is committed to the court's sound discretion. Cross v. General Motors Corp. , 721 KM 1152, 1157 (8th Cir. 1983). "The in forma pauperis statute - is designed to ensure that indigent persons will have equal access to the judicial system.' Lee v. McDonald's Corp. , 231 F.3d 456, 458 (8th Cir. 2000) ( quoting Greaser v. State of Mo. Deaf Corrections, I 45 F.3d 979, 985 (8th Cir. 1998)). However, other than in criminal cases, "[a]n in forma pauperis litigant's access to the courts is a matter of privilege, not of right, and should not be used to abuse the process of the courts." Williams v. McKenzie , 834 F.2d 152, 154 (8th Cir. 1987).
The Court is satisfied that the plaintiff is indigent under 28 U.S.C. § 1915(0(1). However, that does not end the inquiry. I must screen the plaintiff's claims to determine whether the action
(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,
28 U.S.C. § 1915(e)(2)(13).
II. Section 1983.
Pros se complaints must be liberally construed. Estelle v. Gambig , 429 U.S. 97, 107, 97 S.Ct. 285, 292-93, 50 L.Ed.2d 251 (1976). However, "they still must allege sufficient facts to support the claims advanced." aloe v. Harry , 364 F.3d 912, 914 (8th Cir. 2004). "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins , 487 U.S. 42, 48, 108 S.Ct. 2250, 2254, -55, 101 L.Ed.2d 40 (1988).
Plaintiff claims that defendants have, in the past, and continue to violate "the 48 hour rule." Reading plaintiff's complaints liberally, plaintiff complains that he was held more than 48 hours after arrest without being brought before a judicial officer. The United States Supreme Court, in Gerstein v. Pugh , 420 U.S. 103, 125, 95 S.Ct. 854, 868-69, 43 L.Ed, 2d 54 (1975), invalidated extended warrantless detention, finding that the Fourth Amendment requires states to adopt a procedure to "provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest."
The Supreme Court in County of Riverside v. McLaughlin , 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), determined just what "prompt" means,
[W]e believe that a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. For this reason, such jurisdictions will be immune from systemic challenges.
This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours. Such a hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay's sake. In evaluating whether the delay in a particular case is unreasonable, however, courts must allow a substantial degree of flexibility. Courts cannot ignore the often unavoidable delays in transporting arrested persons from one facility to another, handling late-night bookings where no magistrate is readily available, obtaining the presence of an arresting officer who may be busy processing other suspects or securing the premises of an arrest, and other practical realities.
Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends. A ...