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Evenson v. Davis

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

December 2, 2015

DENNIS J. EVENSON, Plaintiff,
v.
JUDGE JEFF W. DAVIS, in his official and individual capacities; JUDGE CRAIG PFEIFLE, in his official and individual capacities; RAPID CITY, and PENNINGTON COUNTY, Defendants.

ORDER GRANTING IN FORMA PAUPERIS AND DISMISSING CASE

JEFFREY L. VIKEN CHIEF JUDGE.

On August 20, 2015, plaintiff Dennis J. Evenson, an inmate at the South Dakota State Penitentiary in Sioux Falls, South Dakota, filed a complaint against the defendants. (Docket 1). Mr. Evenson also moved for leave to proceed in forma pauperis and submitted a current copy of his prisoner trust account report. (Dockets 2 & 4). He also requested that the court appoint counsel. (Docket 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. Evenson 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 $22.73, an average monthly balance for the past six months of negative $666.78, and a current balance of negative $694.68. Id. In light of this information, the court finds Mr. Evenson 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)(1) (“[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)(ii) and 1915A(b)(1) for failure to state a claim 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. Evenson 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. Evenson used a Civil Rights Complaint By A Prisoner form. (Docket 1). Under Section A. Jurisdiction, Mr. Evenson checked the box asserting jurisdiction under 1(a) 28 U.S.C. § 1343(a)(3), or 42 U.S.C. § 1983. Id. at p. 1(a).

Mr. Evenson’s complaint contains three counts. Count I alleges a violation of the Equal Protection Clause of the Fourteenth Amendment. (Docket 1 at p. 4). On the complaint form for the designation of the issues presented, Mr. Evenson checked “Access to the court, ” “Retaliation, ” and “Property.” Id. He claims Circuit Court Judge Davis corruptly denied his habeas petition. Id. Mr. Evenson alleges Judge Davis cited laws and a statute of limitations that do not apply. Id. He also claims Circuit Court Judge Craig Pfeifle refused to use a nunc pro tunc order to grant Mr. Evenson’s habeas petition. Id. The complaint alleges Judge Davis discriminated against Mr. Evenson because he is of Native American descent. Id. Mr. Evenson claims the injury of “loss of liberty due to extended unconstitutional deprivation.” Id. Mr. Evenson alleges his claims are outside of the prison’s administrative jurisdiction. Id.

Count II alleges a violation Mr. Evenson’s “Right to Petition the Government for a Redress of Grievance” under the First Amendment. Id. at p. 5. On the complaint form for the designation of the issues presented, Mr. Evenson checked “Access to the court, ” “Retaliation, ” and “Property.” Id. Mr. Evenson again claims that Judge Davis discriminated against him on the basis of race. Id. He claims the injuries of “deprivation of liberty, [and] loss of happyness [sic].”

Count III alleges violation Mr. Evenson’s rights under the Ninth Amendment.[1]Id. On the complaint form for the designation of the issues presented, Mr. Evenson checked “Medical care, ” “Access to the court, ” “Disciplinary proceedings, ” “Retaliation, ” “Property, ” “Excessive force by an officer, ” and “Threat to safety.” Id. Mr. Evenson alleges he was discriminated against on the basis of his mental illness. Id. He alleges the State of South Dakota took advantage of his illness and manipulated him into pleading guilty to a crime which he did not commit. Id. ...


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