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Walker v. Shantel Krebs Office Capacity

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

May 8, 2018

CLAYTON G WALKER, Plaintiff,
v.
SHANTEL KREBS OFFICE CAPACITY; SOS OFFICE; STATE OF SOUTH DAKOTA; and UNITED STATES; Defendants.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         Plaintiff 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).

         A 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.

         Because 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.

         Mr. 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.

         In 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.

         In 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.

         Mr. 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, ...


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