United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, Chief District Judge.
On March 30, 2015, plaintiff Michael Merrival, Jr., an inmate at the Pennington County Jail in Rapid City, South Dakota, filed a complaint against the defendants using a Civil Rights Complaint By A Prisoner form. (Docket 1). Mr. Merrival also moves for leave to proceed in forma pauperis and submitted a current copy of his prisoner trust account report. (Dockets 2 & 3). On April 7, 2015, Mr. Merrival filed a motion for appointment of counsel with a supporting affidavit. (Dockets 5 & 8). On April 13, 2015, Mr. Merrival filed a motion for expedited consideration under 28 U.S.C. § 1657 and a motion asking for a preliminary injunction. (Dockets 9 & 10). On the same day, the Clerk of Court received a letter from Mr. Merrival which was mailed the day after the motion for a preliminary injunction had been mailed. (Docket 11). The letter advised the court that Mr. Merrival was granted a medical release from custody to address the health issues which were the subject of the preliminary injunction motion. Compare Dockets 10 & 11. On April 30, 2015, the Clerk of Court staff confirmed Mr. Merrival was no longer an inmate at the Pennington County Jail but was living at a residential address in Rapid City, South Dakota.
Section 1915(a)(1) of Title 28 of the United States Code directs the court to authorize the commencement of a civil action without prepayment of fees upon proof of plaintiff's inability to pay. 28 U.S.C. § 1915(a)(1). The court finds Mr. Merrival is indigent within the meaning of § 1915(a)(1).
Proceeding in forma pauperis is governed by § 1915. That statute provides:
Notwithstanding any filing fee, ... the court shall dismiss the case at any time if the court determines that-
(B) the action or appeal-
(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). Subsection (e)(2) allows the court sua sponte to review a complaint filed with an in forma pauperis application to determine if the action is frivolous, malicious, fails to state a claim, or seeks monetary relief against a defendant or defendants who are immune from such relief. Thus, the court is required to screen a pro se complaint as soon as practicable and to dismiss those which are frivolous or fail to state a claim for relief. "[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.... [the] 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. Merrival 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 mitted). "[P]ro se complaints are to be construed liberally...." Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (referencing Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Under Section A. Jurisdiction for the complaint, Mr. Merrival checked the box asserting jurisdiction under 1(a) 28 U.S.C. § 1343(a)(3) or 42 U.S.C. § 1983. (Docket 1 at p. 1(A)(1)(a)). For the following analysis, the court presumes Mr. Merrival intended to bring this action under § 1983.
Mr. Merrival's complaint contains three separate counts. Count I alleges a violation of his "right to due process of law; right to equal protection of law; right to fair trial; right to life, liberty [and] property; right to be free from excessive bail." Id. at p. 4. Mr. Merrival alleges Ms. Roetzel as the Chief Deputy States Attorney objected to him being released on bond to attend to his medical needs. Id. Mr. Merrival further alleges Captain Haga of the Pennington County Sheriff's Office directed her staff to refuse him medical service. Id. Mr. Merrival claims ...