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Kling v. Louie

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

June 19, 2018

KARY GENE KLING, Plaintiff,
v.
ED LOUIE, LIEUTENANT AT MIKE DURFEE STATE PRISON, OFFICIAL CAPACITY; ROBERT DOOLEY, CHIEF WARDEN AT MIKE DURFEE STATE PRISON, OFFICIAL CAPACITY; JEREMY BAKER, CORPORAL AT MIKE DURFEE STATE PRISON, OFFICIAL CAPACITY; JOSH KLIMEK, UNIT MANAGER AT MIKE DURFEE STATE PRISON, OFFICIAL CAPACITY; TIFFANY VOIGT, UNIT COORDINATOR AT MIKE DURFEE STATE PRISON, OFFICIAL CAPACITY; TAMMY DEJONG, MANAGER AT MIKE DURFEE STATE PRISON, OFFICIAL CAPACITY; TAMMY DOYLE, UNIT MANAGER AT MIKE DURFEE STATE PRISON, OFFICIAL CAPACITY; KIM LIPPENCOTT, MANAGER AT MIKE DURFEE STATE PRISON, OFFICIAL CAPACITY; BRIAN FOLEY, COORDINATOR AT MIKE DURFEE STATE PRISON, OFFICIAL CAPACITY; DENNIS DAUGAARD, GOVENOR AT STATE OF SOUTH DAKOTA, OFFICIAL CAPACITY; DENNIS KAEMINGK, SECRETARY OF CORRECTIONS AT STATE OF SOUTH DAKOTA, OFFICIAL CAPACITY; AND MARTY JACKLEY, ATTORNEY GENERAL AT STATE OF SOUTH DAKOTA, OFFICIAL CAPACITY; Defendants.

          OPINION AND ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING CASE

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.

         Plaintiff 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 dismissed.

         I. FACTS ALLEGED IN THE COMPLAINT [1]

         On 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. Id.

         While 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.

         Once 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.

         Kling 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.

         II. LEGAL STANDARD

         At this 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. 2007).

         A 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).

         III. DISCUSSION

         A. Motion to Proceed In Forma Pauperis

         Under 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)).

         The initial partial filing fee that accompanies an installment plan is calculated according to 28 U.S.C. § 1915(b)(1), which ...


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