United States District Court, D. South Dakota, Western Division
ORDER GRANTING IN FORMA PAUPERIS STATUS AND
DISMISSING CASE
JEFFREY VIKEN, CHIEF JUDGE.
On June
29, 2018, plaintiff Donald Wayne Arehart, appearing pro
se, filed a complaint against the above-named
defendants. (Docket 1). Plaintiff moves for leave to proceed
in forma pauperis and provided the court with his
financial information. (Dockets 2 & 7). Section 1915 of
Title 28 of the United States Code, as amended by the Prison
Litigation Reform Act (“PLRA”), governs
proceedings filed in forma pauperis. When a prisoner
files a civil action in forma pauperis, the
PLRA requires a prisoner to pay an initial partial filing fee
when possible. See 28 U.S.C. § 1915(b)(1). The
initial partial filing fee is calculated according to §
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
the complaint or notice of appeal.
Id.
In
support of his motion, Mr. Arehart provided copies of his
prisoner trust account report signed by an authorized
official. (Dockets 3 & 8). The most recent report of the
institution at which he is currently incarcerated shows an
average monthly deposit of $33.37, an average monthly balance
of $0 and a current balance of $0. Id. Based on this
information, the court grants Mr. Arehart leave to proceed
in forma pauperis provided he pays an initial
partial filing fee of $6.67, which is 20 percent of $33.37.
28 U.S.C. § 1915(b)(1). Mr. Arehart must pay this
initial partial filing fee by August 27, 2018.
Under
28 U.S.C. § 1915A, the court must review a prisoner
complaint and identify cognizable claims or dismiss the
complaint if it is frivolous, malicious, or fails to state a
claim upon which relief may be granted. This screening
process “applies to all civil complaints filed by [a]
prisoner[], regardless of payment of [the] filing fee.”
Lewis v. Estes, 242 F.3d 375 at *1 (8th Cir. 2000)
(unpublished) (citing Carr v. Dvorin, 171 F.3d 115,
116 (2d Cir. 1999)). During this initial screening process,
the court must dismiss the complaint in its entirety or in
part if the complaint is “frivolous, malicious, or
fails to state a claim upon which relief may be
granted” or “seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C.
§ 1915A(b).
The
court may dismiss a complaint under §§
1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a
claim as “the statute accords judges not only the
authority to dismiss a claim based on an indisputably
meritless legal theory, but also the unusual power to pierce
the veil of the complaint's factual allegations and
dismiss those claims whose factual contentions are clearly
baseless.” Neitzke v. Williams, 490 U.S. 319,
327 (1989).
Because
Mr. Arehart is proceeding pro se, his pleading must
be liberally construed and his complaint, “however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation
marks and citation omitted). 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).
Mr.
Arehart names the Pennington County Sheriff's Department
as a defendant in this case. Sheriff's departments are
not suable entities. See Ketchum v. City of West Memphis,
Ark., 974 F.2d 81, 82 (8th Cir. 1992); Dean v.
Barber, 951 F.2d 1210, 1214 (11th Cir. 1992)
(“[s]heriff's departments and police departments
are not usually considered legal entities subject to
suit”); In re Scott County Master Docket, 672
F.Supp. 1152, 1163 n.1 (D. Minn. 1987) (sheriff's
department is not legal entity subject to suit),
aff'd, Myers v. Scott County, 868 F.2d
1017 (8th Cir. 1989). Mr. Arehart's claims against the
Pennington County Sheriff's Department are therefore
dismissed pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(1).
On July
11, 2018, Mr. Arehart supplemented his complaint to add
Deputy Whittle, Deputy Joshua Kunde, and Deputy Kent Przymus
as defendants. (Docket 6). Plaintiff states, “I would
greatly appreciate in granting my lawsuit against, Deputy
Whittle[, ] Deputy Joshua Kunde[, and] Deputy Kent Przymus
for cruel and unusual battery, for [$]560.00 a day
incarcerated for making [me] sit in [a] patrol car handcuffed
for more than 8 hours, no food, water, or bathroom[.]”
Id.
Plaintiff
fails to specify whether Deputy Whittle, Deputy Kunde, and
Deputy Przymus are sued in their individual or official
capacity. In such a situation, it is proper for the court to
“interpret the complaint as bringing only
official-capacity claims.” Egerdahl v. Hibbing
Comm. College, 72 F.3d 615, 619 (8th Cir. 1995). County
employees are not subject to liability under § 1983 in
their official capacities unless a plaintiff shows that the
constitutional violation in question stemmed from an
unconstitutional policy or custom of the government entity
itself. Hafer v. Melo, 502 U.S. 21, 25 (1991).
Plaintiff does not point to any offending policy or custom of
Pennington County. Accordingly, Mr. Arehart's claims
against Deputy Whittle, Deputy Kunde and Deputy Przymus are
dismissed pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(1).
Based
on the above analysis, it is
ORDERED
that Mr. Arehart's motion to proceed in forma
pauperis (Docket 2) is granted. Mr. Arehart shall pay
the initial partial ...