United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
Clayton G. Walker, appearing pro se, filed a
complaint and an amended complaint. (Dockets 1 & 5). Mr.
Walker now moves for leave to proceed in forma
pauperis and provides the court his financial
information. (Docket 3).
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
qualifies 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).
“In 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).
This court finds Mr. Walker is indigent and grants his motion
to proceed in forma pauperis.
Mr. Walker proceeds in forma pauperis, the court
must screen his petition pursuant to 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;
or (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 to sua sponte 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.
Walker asserts federal jurisdiction based on: 28 U.S.C.
§ 1331; 28 U.S.C. § 1343(a)(3) and (4); 42 U.S.C.
§ 1983; Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971); 28
U.S.C. §§ 2201-2202; 28 U.S.C. § 1391(B); the
Voting Rights Act of 1965; and the Ninth, Eleventh,
Thirteenth, Fifteenth and Nineteenth Amendments. (Docket 5 at
p. 1). Mr. Walker characterizes his claim against defendants
as “[d]efamation of character of a libel civil
wrong.” Id. at p. 3. Mr. Walker further
alleges “The [Secretary of State] is trying to get rid
of the 3rd party here in SD.” Id.Mr. Walker
takes issue with the alleged statement of the website of the
South Dakota Secretary of State indicating
“Independent” is not a political party in South
Dakota. Id. Mr. Walker alleges he is a member of the
Independent political party of South Dakota. Id. Mr.
Walker seeks an order from this court determining whether
Independent is a political party, granting declaratory and
injunctive relief, granting money damages and declaring an
emergency. Id. at p. 3.
evaluating the amended complaint, the court must construe
plaintiff's pro se complaint liberally. See Stone v.
Harry, 364 F.3d 912, 914 (8th Cir. 2004). This means
“that if the essence of an allegation is discernible,
even though it is not pleaded with legal nicety, then the
district court should construe the complaint in a way that
permits the layperson's claim to be considered within the
proper legal framework.” Jackson v. Nixon, 747
F.3d 537, 544 (8th Cir. 2014) (internal quotation marks
omitted). The complaint “still must allege sufficient
facts to support the claims advanced.” Stone,
364 F.3d at 914.
demonstrating subject matter jurisdiction, “it has been
well-established . . . that the pleading will be read as a
whole with any relevant specific allegations found in the
body of the complaint taking precedent over the formal
jurisdictional allegation . . . .” 5B Wright and
Miller, Federal Practice and Procedure § 1350 at 187-88.
“[A] mere assertion of a deprivation of a federal . . .
right is not sufficient to sustain federal jurisdiction;
conclusory statements unsupported by adequate factual
allegations in the complaint will not suffice.”
Stanturf v. Sipes, 335 F.2d 224, 229 (8th Cir.
1964); see Westley v. Hennepin Cty.-4TH Dist. Court,
No. 0:17-CV-00103, 2017 WL 5957732, at *2 (D. Minn. May 2,
2017) (citing this holding from Stanturf); Malone v.
Husker Auto Grp., Inc., No. 4:08CV3199, 2008 WL 5273670,
at *4 (D. Neb. Dec. 17, 2008) (same). Although Mr. Walker
generally asserts claims against defendants for violating his
rights and committing libel and slander, the court finds no
discernable basis for jurisdiction over the allegations in
Mr. Walker's amended complaint. See Stanturf,
335 F.2d at 229. “The burden of establishing that a
cause of action lies within the limited jurisdiction of the
federal courts is on the party asserting jurisdiction . . .
.” Arkansas Blue Cross & Blue Shield
v. Little Rock Cardiology Clinic, P.A., 551 F.3d 812,
816 (8th Cir. 2009). Plaintiff does not meet this burden for
any of the defendants.
Walker claims “[t]his court has jurisdiction because
United States is a Defendant[.]” (Docket 5 at 1). The
United States and its agencies are generally immune from
suit. FDIC v. Meyer, 510 U.S. 471, 475 (1994)
(“Absent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit.”);
Brown v. United States, 151 F.3d 800, 803-04 (8th
Cir. 1998). “Sovereign immunity is a jurisdictional
issue . . . .” Rupp v. Omaha Indian Tribe, 45
F.3d 1241, 1244 (8th Cir. 1995). If the government
“possess[es] sovereign immunity, then the district
court [has] no jurisdiction to hear [plaintiff's
claims].” Id. Mr. Walker fails to identify an
applicable waiver of sovereign immunity. See Walker v.
Harmon, No. CIV. 15-5037, 2016 WL 5376185, at *2 (D.S.D.
Sept. 26, 2016) (finding no sovereign immunity waiver in 28
U.S.C. § 1343 and 42 U.S.C. § 1983), aff'd, ...