United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
Sonie Two Bears Witko, appearing pro se, filed a
complaint, together with attachments totaling 84 pages,
against defendants alleging a violation of his constitutional
rights. (Docket 1). Accompanying the complaint were seven
supplements totaling 385 pages. (Dockets 2-8 and 12). Mr. Two
Bears Witko moves for leave to proceed in forma
pauperis. (Docket 10). For the reasons discussed below,
the motion to proceed in forma pauperis is granted
and the complaint against the United States of America and
the named departments within the government is dismissed
federal court may authorize the commencement of suit without
prepayment of fees when an applicant files an affidavit
stating he is unable to pay the costs of the lawsuit. 28
U.S.C. § 1915. Determining whether an applicant is
sufficiently impoverished to qualify to proceed in forma
pauperis under § 1915 is committed to the
court's discretion. Cross v. Gen. Motors Corp.,
721 F.2d 1152, 1157 (8th Cir. 1983). “[I]n forma
pauperis status does not require a litigant to demonstrate
absolute destitution.” Lee v. McDonald's
Corp., 231 F.3d 456, 459 (8th Cir. 2000).
Mr. Two Bears Witko's motion to proceed in forma
pauperis is an application to proceed without payment of
fees. (Docket 10-1). The application is signed but contains
no financial information. Id. Because of the
court's analysis of Mr. Two Bears Witko's complaint,
the court will presume he is without sufficient funds to pay
the cost of this lawsuit. The court finds that Mr. Two Bears
Witko is indigent and grants his motion to proceed in
in forma pauperis is governed by 28 U.S.C. §
1915. That statute provides:
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;
(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.
the court is required to screen a pro se complaint
as soon as practicable and to dismiss those claims 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).
Mr. Two Bears Witko 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).
Bears Witko's complaint is incomprehensible. (Docket 1).
The complaint is on a civil complaint form provided by the
Clerk of Courts. Mr. Two Bears Witko chose to write in red
and black ink on the printed lines, as well as in the top,
bottom and side margins of each page in short phrases such as
“Equal Access to Justice 43 CFR 4.21, ” “No
ex post facto law to escape payment, ” “Jay
treaty 1790 Mcchangeor Parrie Du Chian 1825 Mismanagement,
” “Violation U.S. Constitution unlawful seisure
gold oil land minerals air water, ” “See
attachment Violations of Bill of Rights, ”
“promoting Racism allows room for Rape!!!, ”
“probate of Chief by the United States Supreme
Court-Constitutional violations discrepancies, ”
“under Section 8-Regulate commerce-starvation, ”
“Violations -Bill of Rights, ” “Charges
Genocide-Mismanagement-theft 1790. 1825, ” “Rape.
Murder Violations to the 1821.1851, ” “Violation
1868-great plains, the Black Hills forever, ”
“Our Mineral, Water Rights, ” “Draft
w/Canada (Lakota, Dakota, Nakota).” Id. at p.
1. The remaining two pages of the statement of claims portion
of the complaint have similar incomprehensible declarations.
Id. at pp. 2-3. As a prayer for relief, Mr. Two
Bears Witko asks the court to “Bring Historical
Bloodline Chief of War Crazy Horse-And the Right under the
Constitution, ” with several more ...