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Little v. State of South Dakota

United States District Court, D. South Dakota, Western Division

November 17, 2014

JEREMIAH LITTLE, Plaintiff,
v.
STATE OF SOUTH DAKOTA; U.S. GOVERNMENT, individual capacity; PENNINGTON COUNTY SHERIFFS DEPT., individual capacity; PENNINGTON COUNTY JAIL; DEPUTIE SCHMIDT; CAP. HAGA, individual capacity; SGT. ANDERSON, individual capacity; RAPID CITY POLICE DEPARTMENT; REGINAL WEST; C.O. MEYERS; and PUBLIC DEFENDER DANIEL LEON, Defendants.

ORDER GRANTING IN FORMA PAUPERIS AND DISMISSING CASE

JEFFREY L. VIKEN, Chief District Judge.

On October 15, 2014, plaintiff Jeremiah Little, an inmate at the Pennington County Jail in Rapid City, South Dakota, filed a multiple count complaint against the defendants. (Docket 1). Mr. Little also moves for leave to proceed in forma pauperis and submitted a current copy of his prisoner trust account report. (Dockets 2 & 4).

Section 1915 of Title 28 of the United States Code, as amended by the Prison Litigation Reform Act (PLRA), governs proceedings filed in forma pauperis. When a prisoner files a civil action in forma pauperis, the PLRA requires a prisoner to pay an initial partial filing fee when possible. See 28 U.S.C. § 1915(b)(1). The initial partial filing fee is calculated according to § 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.

Id. In support of his motion, Mr. Little provided a copy of his prisoner trust account report signed by an authorized prison official. (Docket 4). The report shows an average monthly deposit for the past six months of $8.00, an average monthly balance for the past six months of $0.00, and a current balance of $0.00. Id . In light of this information, the court finds Mr. Little is indigent, qualifies for in forma pauperis status, and is not required to make an initial partial filing fee payment. These findings do not discharge the $350 filing fee, but rather allow a prisoner the opportunity to pay the filing fee in installments. See 28 U.S.C. § 1915(b) ("[I]f a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of the filing fee.").

Under 28 U.S.C. § 1915A, the court must review a prisoner complaint and identify cognizable claims or dismiss the complaint if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. This screening process "applies to all civil complaints filed by [a] prisoner[], regardless of payment of [the] filing fee." Lewis v. Estes, 242 F.3d 375 at *1 (8th Cir. 2000) (unpublished) (citing Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999). During this initial screening process, the court must dismiss the complaint in its entirety or in part if the complaint is "frivolous, malicious, or fails to state a claim upon which relief may be granted" or "seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b).

"[A] complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact.... § 1915(d)'s term frivolous, ' when applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual allegation." Neitzke v. Williams, 490 U.S. 319, 325 (1989). The court may dismiss a complaint under § 1915(e)(2)(B)(i) and § 1915A(b)(1) as frivolous as "the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Id. at 327.

Because Mr. Little is proceeding pro se, his pleading must be liberally construed and his complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted).

Mr. Little used a Civil Rights Complaint By A Prisoner form. (Docket 1). Under Section A. Jurisdiction, Mr. Little did not check the box asserting jurisdiction under 1(a) 28 U.S.C. § 1343(a)(3), or 42 U.S.C. § 1983; or 1(b) 28 U.S.C. § 1331; or Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); or 1(c) Other. Id. at p. 1(A)(1)(a), (b) & (c). For the following analysis, the court presumes Mr. Little intended to bring this action under § 1983 or Bivens.

Mr. Little's complaint contains three separate counts. Count 1 alleges his "constitutional rights were violated[, my] civil rights as a human being." (Docket 1 at p. 4). On the complaint form for designation of the issues presented Mr. Little checked "retaliation." Id . Mr. Little claims the sheriff's office is targeting Lakota people for abuse because his people own the Black Hills. Id . He also alleges the sheriff's office takes away Lakota children to torment him and as racists they conduct video surveillance in the jail. Id . Mr. Little claims injuries of "stress, headaches, traumatized, indeludegenal [sic] stress, mental." Id.

Count 2 alleges Mr. Little's "constitutional rights were violated[, ] civil rights as a human being." Id. at p. 5. On the complaint form for designation of the issues presented Mr. Little checked "retaliation." Id . He alleges that throughout his entire life the Rapid City Police Department has been harassing him as a Lakota person. Id . He alleges the police department and its officers are harassing and killing his people. Id . Mr. Little alleges Regional West gave out confidential information about him. Id . Mr. Little claims injuries of "mental stress, headaches[, ] traumatized." Id.

Count 3 alleges Mr. Little's "constitutional rights were violated[, ] civil rights as a human being were violated." Id. at p. 6. On the complaint form for designation of the issues presented Mr. Little checked "retaliation." Id . He alleges the public defender provided ineffective assistance of counsel in preparation for trial. Id . Mr. Little alleges his due process rights are being violated because he wants to go to trial and his attorney wants him to take a plea offer. Id . Mr. Little claims injuries of "stress, emotional suffering and pain, headaches, mental delution [sic]." Id.

In the request for relief section of the complaint form Mr. Little seeks money damages of one ...


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