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Ferrell v. Fitzpatrick

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

February 2, 2018

JUSTIN L. FERRELL, Plaintiff,
v.
RYAN FITZPATRICK, Correctional Officer at Meade County Jail, in his individual and official capacity; STACEY ULRICH, Acting Supervisor at Meade County Jail, in her individual and official capacity; RON MERWIN, Sheriff at Meade County Sheriff's Office, in his individual and official capacity; BOB DOE, Administrator at Meade County Jail, in his individual and official capacity; BERNARD TUILID, Morning Supervisor at Meade County Jail, in his individual and official capacity; DAN DOE, Correctional Officer at Meade County Jail, in his individual and official capacity; MICHAEL DOE, Correctional Officer at Meade County Jail, in his official capacity; KELLY SEUR, Sheriff at Perkins County, in his official capacity; DEPUTY HUMPHRIES, Deputy Sheriff at Meade County Sheriff's Office, in his individual and official capacity; DEPUTY DOE, Deputy Meade County Sheriff's Office, in his individual and official capacity; MONTE ROPPERS, Position Supervisor at Meade County Jail, in his individual and official capacity; KIMBERLY DOE, Correctional Officer at Meade County Jail, in her individual and official capacity; and TY ROPPERS, Correctional Officer at Meade County Jail, in his individual and official capacity; Defendants.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         Plaintiff Justin L. Ferrell, a pretrial detainee at the Pennington County Jail, filed his first amended complaint under 42 U.S.C. § 1983 against the defendants. (Docket 8). Mr. Ferrell also filed a motion for leave to proceed in forma pauperis, a prisoner trust account report and a motion to appoint counsel. (Dockets 9, 10 and 11).

         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. Ferrell provided a copy of his prisoner trust account report signed by an authorized jail official. (Docket 10). The report shows an average monthly deposit since he arrived at the institution at which he is currently incarcerated of $40, an average monthly balance of $0, and a current balance of $0. Id. Based on this information, the court grants Mr. Ferrell leave to proceed in forma pauperis provided he pays an initial partial filing fee of $8, which is 20 percent of $40. 28 U.S.C. § 1915(b)(1). Mr. Ferrell must pay this initial partial filing fee by February 23, 2018. If the court does not receive payment by the deadline, this matter may be dismissed. Mr. Ferrell may request an extension of time if needed.

         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).

         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.” Neitzke v. Williams, 490 U.S. 319, 327 (1989).

         Because Mr. Ferrell 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). Even with this construction, “a pro se complaint must contain specific facts supporting its conclusions.” Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985); Ellis v. City of Minneapolis, 518 F. App'x 502, 504 (8th Cir. 2013). Civil rights complaints cannot be merely conclusory. Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993); Parker v. Porter, 221 F. App'x 481, 482 (8th Cir. 2007).

         DISCUSSION

         A. Official Capacity Claims

         Mr. Ferrell's official capacity claims are the equivalent of claims against Meade or Perkins County. “Plaintiffs who seek to impose liability on local governments under § 1983 must prove that ‘action pursuant to official [county[ policy' caused their injury.” Connick v. Thompson, 563 U.S. 51, 60-61 (2011) (quoting Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691 (1978)). “[I]n other words, a [county] cannot be held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691. “Official [county] policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law. . . . These are actions for which the [county] is actually responsible.” Connick, 563 U.S. at 61 (internal quotation marks, citations and brackets omitted). Mr. Ferrell has not alleged the existence of any custom or policy of Meade or Perkins County that was a moving force behind the alleged constitutional violations. Because Mr. Ferrell sues Michael Doe and Kelly Seur in their official capacities only, the claims against those defendants are dismissed for failure to state a claim upon which relief may be granted. For the same reasons, the remaining official capacity claims against defendants are dismissed for failure to state a claim upon which relief may be granted.

         B. Declaratory and ...


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