United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
Dakota Lee Zerbst, appearing pro se, filed a
complaint alleging violations of his First Amendment rights.
(Docket 1 at. p. 1). Mr. Zerbst also filed a motion to
proceed without prepayment of fees and a financial affidavit.
(Docket 3). 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). In his declaration, Mr. Zerbst indicates he
currently has no assets and is homeless. (Docket 3). The
court finds Mr. Zerbst indigent within the meaning of '
1915(a)(1). Proceeding in forma pauperis is governed
by 28 U.S.C. § 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;
(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 whether
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).
se complaints are to be construed liberally . . . .”
Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)
(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Plaintiff's complaint, liberally construed, sets forth a
cause of action under 42 U.S.C. § 1983 and seeks
monetary damages and injunctive relief. (Docket 1 at pp.
3-5). But Mr. Zerbst seeks relief against defendants who are
immune from suit.
Human Services Center, also referred to as the South Dakota
Human Services Center, is a facility owned and operated by
the State of South Dakota as an arm of the South Dakota
Department of Human Services. SDCL § 27A-4-1. Plaintiff
does not name as defendants any doctors, staff, or
administrators of the Human Services Center. The remaining
defendant Mr. Zerbst names is the State of South Dakota.
Eleventh Amendment shields the State of South Dakota from Mr.
Zerbst's § 1983 claim. See Will v. Michigan
Dep't of State Police, 491 U.S. 58, 63-64 (1989).
The Human Services Center, as a state agency, is immune from
suit. See Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 100 (1984). “[A] suit in
federal court by private parties seeking to impose a
liability which must be paid from public funds in the state
treasury is barred by the Eleventh Amendment.”
Quern v. Jordan, 440 U.S. 332, 337 (1979);
Will, 491 U.S. at 64. Mr. Zerbst has not identified
a waiver of this immunity. Regardless of the relief Mr.
Zerbst seeks, the Eleventh Amendment blocks his claims
against the State of South Dakota. Seminole Tribe of
Florida v. Florida, 517 U.S. 44, 58 (1996) (“But
we have often made it clear that the relief sought by a
plaintiff suing a State is irrelevant to the question whether
the suit is barred by the Eleventh Amendment.”). The
court dismisses Mr. Zerbst's complaint because it is
frivolous and seeks monetary relief from defendants immune to
this type of claim. See 28 U.S.C. §§
1915(e)(2)(i) & (iii), 1915A(b); see also Sullivan v.
Ford, 828 F.Supp. 480, 482 (E.D. Mich. 1993) (finding a
claim against immune defendants was frivolous). Accordingly,
that Mr. Zerbst's motion for leave to proceed without
prepayment of fees (Docket 3) is granted. Mr. Zerbst may
prosecute this action to its conclusion without prepayment of
costs or fees. Any recovery in this action by Mr. Zerbst
shall be subject to the ...