United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER GRANTING MOTION TO PROCEED IN FORMA
PAUPERIS AND DISMISSING CASE
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
Kary Gene Kling is an inmate at the Mike Durfee State Prison
in Springfield, South Dakota. On March 7, 2018, Kling filed a
pro se civil rights lawsuit under 42 U.S.C. § 1983 and
requested leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Doc. 1; Doc. 2. This Court now has
screened his complaint pursuant to 28 U.S.C. § 1915A.
For the following reasons, Kling's motion for leave to
proceed in forma pauperis is granted, but his complaint is
FACTS ALLEGED IN THE COMPLAINT 
November 11, 2017, between 12:00 p.m. and 5:00 p.m., Kling,
who apparently was on parole or a work release program at the
time, waited in a holding cell at the Yankton Community Work
Center to take a drug test. Doc. 1 at 9. While waiting, Kling
witnessed the drug test of another inmate administered by
Defendant Ed Louie. While conducting that test, Louie
allegedly did not wear gloves, collect an adequate urine
sample, or test the sample before directing the inmate to
dump the sample. Id. at 9-10. Kling believed the
other inmate's results could have been recorded as clean
or dirty. Id. at 10. After witnessing this incident,
Kling became scared to do a urine test for Louie and refused
to submit to his drug test. Id. Kling then received
a write-up, was moved to the special housing unit (SHU) at
Mike Durfee State Prison (MDSP), and lost his parole.
housed in the SHU, Kling confronted Louie. Id. at
10. Kling observed that Louie was nervous, lying, and
stuttering. Id. Louie then visited Kling the next
day and tried to explain that what happened was not criminal.
Id. at 11. Louie inquired why Kling was at MDSP and
offered to help Kling get his parole back. Id. at
12. Nothing came of the offer. Id.
released from the SHU, Kling attempted to have the situation
investigated. He wrote more than forty kites to Defendants
Josh Klimek, Tiffany Voigt, Tammy Dejong, Tammy Doyle, Kim
Lippencott, Brian Foley, Ed Louie, Robert Dooley, Deputy
Warden, and the Associate Warden. Id. at 10-11. The
recipients did not respond to the kites or otherwise speak
with Kling. Id. at 11. An unknown person, however,
asked Kling what he saw. Id. at 10. Kling wrote
letters to the Secretary of Corrections, the Governor, the
Attorney General, Prison Central Records, the Warden, and the
Division of Criminal Investigations (DCI). Id. at
12. The recipients did not respond. Id.
asked Officer Jeremy Baker to speak to the Officer in Charge
at MDSP. Id. at 12. Baker asked why Kling needed to
speak to the Officer in Charge and Kling told Baker it was
about Louie. Id. Baker then threatened Kling and
called him at rat. Id. Finally, a DCI agent
interviewed Kling and answered Kling's questions about
the criminality of altering results of a drug test.
Id. at 13. Kling claims that he remains fearful of
urine testing, and the experience has caused him to huff,
starve himself at times and other physical and mental issues.
Id. at 14-15.
stage of the case, this Court must accept the well-pleaded
allegations in the complaint as true and draw all reasonable
inferences in favor of the non-moving party, Schriener v.
Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014).
Civil rights and pro se complaints must be liberally
construed. Erickson v. Pardus, 551 U.S. 89, 94
(2007) (citation omitted); Bediako v. Stein Mart,
Inc., 354 F.3d 835, 839 (8th Cir. 2004). 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 Fed.Appx. 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 Fed.Appx. 481, 482 (8th Cir.
complaint "does not need detailed factual allegations
... [but] requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). "If a plaintiff cannot make the
requisite showing, dismissal is appropriate."
Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir.
1985). Under 28 U.S.C. § 1915A, this Court must screen
prisoner claims filed in forma pauperis and determine whether
they are (1) "frivolous, malicious, or fail[ ] to state
a claim on which relief may be granted; or (2) seek[ ]
monetary relief from a defendant who is immune from such
relief." See also Onstad v. Wilkinson, 534
Fed.Appx. 581, 582 (8th Cir. 2013).
Motion to Proceed In Forma Pauperis
the Prison Litigation Reform Act (PLRA), a prisoner who
"brings a civil action or files an appeal in forma
pauperis ... shall be required to pay the full amount of a
filing fee." 28 U.S.C. § 1915(b)(1). The court may,
however, accept partial payment of the initial filing fee
where appropriate. Therefore, " '[w]hen an inmate
seeks pauper status, the only issue is whether the inmate
pays the entire fee at the initiation of the proceedings or
over a period of time under an installment plan.'"
Henderson v. Norris, 129 F.3d 481, 483 (8th Cir.
1997) (quoting McGore v. Wrigglesworth, 114 F.3d
601, 604 (6th Cir. 1997)).
initial partial filing fee that accompanies an installment
plan is calculated according to 28 U.S.C. § 1915(b)(1),