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 October 8, 2015, Plaintiff William Paul Whiting ("Whiting") filed a pro se claim against Melissa Eagle Bear ("Eagle Bear"), Facility Supervisor and Warden at the Rosebud Sioux Tribe Adult Correctional Facility ("RSTACF"), and Hattie Dunham ("Dunham"), Program Specialist at the RSTACF, 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 Eagle Bear and Dunham (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, lack of subject matter jurisdiction, and failure to exhaust administrative remedies under 28 U.S.C. § 1915A.
Whiting's Compliant contains three counts. Counts I and III contain similar claims. Count I alleges that on or about May 19, 2015, Melissa High Bear violated Whiting's First Amendment rights to attend church services and practice his religious beliefs because the RSTACF has a policy that does not allow detained individuals with bonds over $5, 000 to participate in any programs. Doc. 1 at 4. Count III alleges that on May 26, 2015, Eagle Bear violated Whiting's First Amendment rights in the same way. Doc. 1 at 6. Count II of the Complaint alleges that Whiting's Eight Amendment rights were violated when he was denied medical care while detained at the RSTACF. Doc. 1 at 5. In Count II, Whiting specifically claims that he was prescribed blood pressure medication on May 21, 2015, and was subsequently denied follow-up appointments on May 28 and June 4, 2015, to determine if that previously prescribed blood pressure medication was working properly. Doc. 1 at 5. Whiting asserts that he finally was able to obtain medical treatment on June 11, 2015, when a correctional officer, Officer Yellowboy, called the paramedics because Whiting's blood pressure had reached 164/105. Doc. 1 at 5. Whiting claims that administrative remedies for the allegations stated in Count II are not available, not requested, and not appealed, but that he did submit administrative requests for relief for the circumstances alleged in Counts I and III. Doc. 1 at 4-6. Whiting asserts that he did not submit an administrative request for Count II or appeal the administrative requests for Counts I and III because he was taken into federal custody approximately one week after he was released from tribal custody. Doc. 1 at 4-6.
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 $4.40 for the initial partial filing fee in this case because he has average monthly deposits of $22.00.
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 Sch. 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. Twomblv. 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 Twomblv, 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 three reasons why Whiting cannot proceed with this action. First, Defendants are immune from suit in federal court. Second, this Court lacks subject matter jurisdiction. And third, even if tribal immunity was waived and a federal statute gave this Court jurisdiction over the claims asserted, Whiting has failed to exhaust his administrative remedies on Count I and III. 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 Cmtv.. 991 F.2d 458, 460 (8th Cir. 1993)); see also Cohen's Handbook of Federal ...