United States District Court, D. South Dakota, Central Division
OPINION AND ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
On September 25, 2015, Plaintiff William Paul Whiting ("Whiting") filed a pro se claim against Andrew Martinez, Sergeant for the Rosebud Police Department ("Sergeant Martinez"), Leroy Grieves,  Magistrate Judge for the Rosebud Sioux Tribe ("Judge Grieves"), and Kelsey F. Ruby, Prosecutor for the Rosebud Sioux Tribe ("Ruby"), in their individual and official capacities under 28 U.S.C. § 1331 and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Doc. 1. Whiting alleges that Sergeant Martinez, Judge Grieves, and Ruby (collectively "Defendants") violated his constitutional rights and seeks monetary damages. Doc. 1. Whiting also filed a motion for leave to proceed in forma pauperis. Doc. 2. For the reasons stated below, Whiting's motion for leave to proceed in forma pauperis is granted, and his Complaint is dismissed without prejudice under the doctrine of tribal sovereign immunity and for failure to state a claim and lack of subject matter jurisdiction under 28 U.S.C. § 1915A.
Whiting's Complaint alleges two counts, both of which center around his arrest by Rosebud Sioux Tribe law enforcement for resisting arrest and disorderly conduct on or about July 31, 2015. Doc. 1 at 2. Count I of the Complaint alleges that Whiting's Fourth Amendment rights were violated and that he was wrongly imprisoned when Sergeant Martinez falsely stated that Whiting was resisting arrest "by verbally threating [Sergeant Martinez] and kicking the windows inside [Sergeant Martinez's] patrol unit." Doc. 1 at 2, 4. Count II alleges that as a result of his subsequent incarceration, Whiting was deprived of his liberty and due process in violation of the Fifth Amendment. Doc. 1 at 5. Whiting did not specifically state which Defendants violated his rights in regards to Count II. However, Whiting did allege that Judge Grieves and Ruby were acting under color of law when each stated that Whiting committed the offenses of resisting arrest and disorderly conduct after reviewing the evidence and tribal complaint against him. Doc. 1 at 2.
A. In Forma Pauperis Status
Under the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(a)(1), a district court may authorize the commencement of a suit without prepayment of fees or security by a person who requests for leave to proceed in forma pauperis. In forma pauperis status does not require an applicant to be completely destitute, and the determination whether an applicant is sufficiently impoverished to qualify rests in the district court's discretion. Id.; Lee v. McDonald's Corp., 231 F.3d 456, 459 (8th Cir. 2000). Whiting did not pay the civil filing fee in this case, but has filed an application to proceed in forma pauperis, Doc. 2, and the record includes a Prisoner Trust Account Report, Doc. 3. Upon review, this Court finds that Whiting is indigent. Therefore, Whiting's motion to proceed in forma pauperis is granted.
The PLRA, however, requires prisoners to make an initial partial filing payment where possible. Determination of the partial filing fee is calculated according to 28 U.S.C. § 1915(b)(1), which requires twenty 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 six-month period immediately preceding the filing of the complaint or notice of appeal. Whiting is obligated to pay the filing fee regardless of whether this Court allows or dismisses this action. In re Prison Litis. Reform Act. 105 F.3d 1131, 1134 (6th Cir. 1997). The obligation to pay a filing fee accrues the moment a plaintiff files his complaint with the court, and it cannot be avoided merely because the case is eventually dismissed. In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997) (prisoner will be assessed full filing fee even if his case is dismissed because "the PLRA makes prisoners responsible for their filing fees the moment the prisoner brings a civil action or files an appeal"). Whiting shall pay $3.99 for the initial partial filing fee in this case because he has $19.97 in his prisoner trust account.
B. Screening of Whiting's Claims & Liberal Construction of Pro Se Complaint
Congress has directed this Court, under 28 U.S.C. § 1915A, to review and screen claims in a complaint being filed in forma pauperis to determine if they are (1) "frivolous, malicious, or fail to state a claim on which relief may be granted; or (2) seek monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b); see also Stanko v. Patton, 228 F.App'x 623, 624 (8th Cir. 2007) ("A complaint is frivolous where it lacks an arguable basis either in law or in fact." (quoting Williams v. Hopkins, 130 F.3d 333, 335 (8th Cir. 1997))); Jefferies v. Marshall. No. CIV-12-3023, 2012 WL 3730605, at *2 (D.S.D. Aug. 28, 2012) ("This Court is required to dismiss claims that are frivolous, malicious, or fail to state a claim upon which relief may be granted."); In re Prison Litig. Reform Act. 105 F.3d at 1131 ("[B]efore service of process is made on the opposing parties, the district court must screen the case under the criteria of 28 U.S.C.A. § 1915(e)(2) and 28 U.S.C.A. § 1915A.").
A court must assume as true all facts well pleaded in the complaint. Cole v. Homier Distrib. Co.. Inc.. 599 F.3d 856, 861 (8th Cir. 2010). "Although pro se complaints are to be construed liberally, 'they still must allege sufficient facts to support the claims advanced.'" Stringer v. St. James R-l Sen. Dist.. 446 F.3d 799, 802 (8th Cir. 2006) (quoting Stone v. Harry. 364 F.3d 912, 914 (8th Cir. 2004)). "[P]ro se litigants must set [a claim] forth in a manner which, taking the pleaded facts as true, states a claim as a matter of law." Id. (alterations in original) (quotation omitted). A complaint "does not need detailed factual allegations . . . [but] requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation omitted). If a complaint does not contain these bare essentials and instead is based on vague or conclusory allegations or "unsupported generalizations, " dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985) (internal quotation marks and quotation omitted). In Twombly, the Supreme Court of the United States made clear that a complaint's factual allegations, when taking all those allegations as true, must be "enough to raise a right to relief above the speculative level." 550 U.S. at 555.
There are two reasons why Whiting cannot proceed with this action. First, Defendants are immune from suit in federal court. Second, this Court lacks subject matter jurisdiction. Each issue is separately addressed below.
C. Tribal Sovereign Immunity
"As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." Fort Yates Pub. Sch. Dist. No. 4 v. Murphy ex rel. C.M.B.. 786 F.3d 662, 670 (8th Cir. 2015) (quoting Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998)). Absent a clear and unequivocal waiver or congressional authorization, this Court does not have subject matter jurisdiction over an action against a federally recognized tribe. Michigan v. Bay Mills Indian Cmtv., 134 S.Ct. 2024, 2030-31 (2014). The Eighth Circuit has found that a tribe's sovereign immunity may extend to a tribal entity or agency. See J.L. Ward. Assocs., Inc. v. Great Plains Tribal Chairmen's Health Bd' 842 F.Supp.2d 1163, 1171-72 (D.S.D. 2012) (collecting cases). In a suit for damages, tribal immunity also protects tribal employees acting in their official capacities and within the scope of their authority, as the relief would run directly against the tribe itself. Baker Elec. Coop., Inc. v. Chaske. 28 F.3d 1466, 1471 (8th Cir. 1999) (quoting N. States Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmty., 991 F.2d 458, 460 (8th Cir. 1993)); see also Cohen's Handbook of Federal ...