Salpatoria v. Winkel

          ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DIRECTING SERVICE

          Lawrence L. Piersol United States District Judge

         Plaintiff, Samuel Salpatoria, is an inmate at the Mike Durfee State Prison in Springfield, South Dakota. On December 21, 2017, Salpatoria filed a pro se civil rights complaint (Docket 1). Salpatoria now moves for leave to proceed in forma pauperis (Docket 2) and filed a prisoner trust account statement in support of his motion (Docket 5). This Court has screened Salpatoria's complaint pursuant to 28 U.S.C. § 1915A. For the following reasons, the Court dismisses Salpatoria's complaint in part and directs service in part.

         FACTUAL BACKGROUND^[1]

         On March 11, 2016, Salpatoria rented a room at the Rushmore Motel at 2500 East 10th Street, Sioux Falls, SD. Docket 1 at 15. When returning to his room later that evening, hotel manager Catherine Ann Woods asked Salpatoria to remove his property and leave the room. Id. at 16. When Salpatoria asked for why he needed to leave, he alleges that Woods told him that she did not want him at the motel. Id. She threatened to call the police if Salpatoria did not leave. Id. Salpatoria went into the room and closed the door. Id.

         Shortly after, Officer Chap Winkle arrived at the hotel and spoke with Woods. Id. Winkle and Officer Joseph Larson then entered the room and told Salpatoria to leave. Id. Salpatoria explained that he did not want to because it was dark, cold, and snowy outside. Id. Winkle and Larson then pushed Salpatoria hard against the wall, swore at him, and punched him. Id. at 17. Winkle and Larson then pushed Salpatoria to the ground and remained on top of him. Id. One officer put his knee next to Salpatoria's head and kept punching him. Salpatoria was then tased twice. Id.

         Officer Mathis arrived and got Salpatoria off the ground. Id. The officers then proceeded to construct a story that Salpatoria chocked and punched officers. Id. Salpatoria told Mathis that the other officers were lying and he did not choke or punch officers. Id.

         Salpatoria sustained several injuries during the incident with police. Id. at 5. Sanatoria's injuries included damage to both of his eyes, ringing in his right ear, and chest bruises. See Dockets 1-1, 1-2, 1-3.

         LEGAL STANDARD

         The 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." Abdullah v. Minnesota, 261 Fed.Appx. 926, 927 (8th Cir. 2008); Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). Under 28 U.S.C. § 1915A, the court must screen prisoner complaints and dismiss them if they are "(1) frivolous, malicious, or fail[] to state a claim upon which relief may be granted; or (2) seek[] monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b).

         DISCUSSION

         I. 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 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 ...