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Mousseau v. Vargo

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

December 8, 2014

SHAWN RAY MOUSSEAU, Plaintiff,
v.
STATES ATTORNEY MARK VARGO, in his individual capacity; LAURA SHATICK, States Attorney at Prosecution Office in her individual capacity; WILL WILLIAMS, Prosecutor at States Attorney Office in his individual capacity; CAPTAIN HAGA, at the Pennington County Jail in her individual capacity; SGT. HOUSTON; UNITED STATES OF AMERICA; PENNINGTON COUNTY JAIL; and SHERIFF'S DEPARTMENT, Defendants.

ORDER GRANTING IN FORMA PAUPERIS AND DISMISSING CASE

JEFFREY L. VIKEN, Chief District Judge.

On November 3, 2014, plaintiff Shawn Mousseau, an inmate at the Pennington County Jail in Rapid City, South Dakota, filed a multiple count complaint against the defendants. (Docket 1). Mr. Mousseau 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. Mousseau 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 $0.00, 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. Mousseau 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. Mousseau 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. Mousseau used a Civil Rights Complaint By A Prisoner form. (Docket 1). Under Section A. Jurisdiction, Mr. Mousseau 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. Mousseua intended to bring this action under § 1983 or Bivens.

Mr. Mousseau's complaint contains three separate counts. Count 1 alleges his "constitutional rights[, ] [my] civil rights as a human being were violated." (Docket 1 at p. 4). On the complaint form for designation of the issues presented Mr. Mousseau did not identify the specific nature of the claim. Mr. Mousseau claims the States Attorney's Office is targeting Lakota people for abuse because his people own the Black Hills. Id . Mr. Mousseau claims injuries of "stress, delutional, headaches, cant sleep, traumatize, stress, mental." Id.

Count 2 alleges Mr. Mousseau's "constitutional rights [were] violated[, ] civil rights as a human being violated." Id. at p. 5. On the complaint form for designation of the issues presented Mr. Mousseau checked "medical care." Id . He alleges that at the time of his arrest he was placed in the Pennington County Jail. Id . He alleges when he asked for medical attention Captain Haga denied him the medical attention he needed and then she and Sergeant Houston placed him in administrative lockdown for no reason. Id . Mr. Mousseau claims injuries of "stress, mental, traumatize, could not sleep[, ] emotional distress." Id.

Count 3 alleges Mr. Mousseau's "constitutional rights[, ] civil rights as a human being were violated." Id. at p. 6. On the complaint form for designation of the issues presented Mr. Mousseau checked "retaliation." Id . He alleges that Captain Haga dresses jail inmates in the same fashion Adolph Hitler did before he "placed the Jews in a concentration camp...." Id . He alleges Captain Haga places prisoners in "pink socks[, ] pink underwear & shirts" to discriminate against people of color as "a member of the K.K.K." Id . Mr. Mousseau claims injuries of "emotional stress, mental, traumatize." Id.

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


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