United States District Court, D. South Dakota, Western Division
ORDER GRANTING IN FORMA PAUPERIS AND DISMISSING CASE
JEFFREY L. VIKEN, Chief District Judge.
On September 25, 2014, plaintiff Luis Olivares, a federal inmate housed at the Pennington County Jail in Rapid City, South Dakota, filed a multiple count complaint against the defendants. (Docket 1). Mr. Olivares also moves for leave to proceed in forma pauperis and submitted a current copy of his prisoner trust account report. (Dockets 2 & 3).
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. Olivares 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 $114.00, an average monthly balance for the past six months of $19.00, and a current balance of $79.21. Id . In light of this information, the court finds Mr. Olivares is indigent, qualifies for in forma pauperis status, and is required to make an initial partial filing fee of $22.80. 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 Lewis v. Estes, 242 F.3d 375 at *1 (8th Cir. 2000) (unpublished) (citing Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999).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. Olivares 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. Olivares used a Civil Rights Complaint By A Prisoner form. (Docket 1). Under Section A. Jurisdiction, Mr. Olivares 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. Olivares intended to bring this action under § 1983 or Bivens.
Mr. Olivares' complaint contains three separate counts. Count 1 alleges "my constitutional rights were violated [, ] my civil rights as a human being were violated." (Docket 1 at p. 3). On the complaint form for designation of the issues presented Mr. Olivares checked "retaliation." Id . He claims at age 15 his rights were violated by an officer's use of excessive force at some point in time before 1993. Id . Mr. Olivares also claims a law firm representing him during that time period missed the statute of limitations for pursuing his claim. Id . Mr. Olivares alleges he is "suffering pain, mental, lost an eye [and] head injurys" as a result of the defendants' actions. Id.
Count 2 alleges "my constitutional rights were violated [, ] civil rights were violated." Id. at p. 4. On the complaint form for designation of the issues presented, Mr. Olivares checked "retaliation." Id . He alleges his rights were violated in 1998 when he was involved in a car accident, suffered a head injury and was not compensated by the insurance company. Id . In the same count, Mr. Olivares alleges a law enforcement officer planted illegal drugs on him and then made him plead guilty to a felony charge of escape. Id . Mr. Olivares alleges he suffered "head injurys [sic], mental suffer[ing], and pain" Id.
In count 3, Mr. Olivares alleges his "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. Olivares checked "excessive force by an officer." Id . Mr. Olivares alleges a number of the defendants working together covered up the death of his brother and a border patrol agent by injuring Mr. Olivares and other unlawful conduct. Id ...