United States District Court, D. South Dakota, Southern Division
ORDER DISMISSING CASE
Lawrence L. Piersol United States District Judge
August 20, 2018, plaintiff David Scott Goldstein, appearing
pro se, filed a complaint alleging defendants violated his
civil rights while being confined at Avera McKennan Hospital
under a confinement order issued by the Centers for Disease
Control (CDC). Docket 1. Goldstein filed a motion to proceed
without prepayment of fees and requests a court appointed
attorney. Dockets 3 and 5.
is a two-step screening process with in forma pauperis
litigants. Martin-Trigona v. Stewart, 691 F.2d 856,
857 (8th Cir. 1982); see also Key v. Does, 217
F.Supp.3d 1006, 1006 (E.D. Ark. 2016). First, district courts
must determine whether a plaintiff is financially eligible to
proceed in forma pauperis under 28 U.S.C. § 1915(a).
Id. Second, district courts are to determine whether
the complaint should be dismissed under 28 U.S.C. §
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 is
sufficiently impoverished to qualify 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 (8th Cir. 2000). Considering the information in the
financial affidavit, the court finds that Goldstein has made
the requisite financial showing to proceed in forma pauperis.
See Docket 3.
inquiry does not end there. Under § 1915, the court must
review the claims in the complaint to determine if they are
(1) frivolous or malicious; (2) fail to state a claim on
which relief may be granted; or (3) seek monetary relief
against a defendant who has immunity. See 28 U.S.C.
§ 1915(e)(2)(B). A complaint fails to state a claim upon
which relief may be granted if it does not plead "enough
facts to state a claim to relief that is plausible on its
face." Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). A plaintiffs complaint "does not need
detailed factual allegations . . . [but] requires more than
labels and conclusions. . ." Id. at 555.
"Factual allegations must be enough to raise a right to
relief above the speculative level. . ." Id.
When determining whether a complaint fails to state a claim
upon which relief may be granted, this court "assumes as
true all factual allegations in the pleadings, interpreting
them most favorably to the [pleader]." Magee v.
Trustees. of Hamline Univ., 747 F.3d 532, 534-35 (8th
is proceeding pro se and his complaint is therefore entitled
to a liberal construction. Atkinson v. Bonn, 91 F.3d
1127, 1129 (8th Cir. 1996) (per curiam). Although pro se
complaints are to be construed liberally, "they must
still allege facts sufficient to support the claims
advanced." Stone v. Harry, 364 F.3d 912, 914
(8th Cir. 2004). The court is not required to supply
additional facts for a pro se plaintiff, nor construct a
legal theory that assumes facts which have not been pleaded.
difficult to decipher the factual basis for the litigation,
it appears that Goldstein claims that he was mistreated while
being held at Avera McKennan Hospital. Goldstein alleges that
he refused treatment for tuberculosis after testing negative
for tuberculosis several times. Docket 1 at 1. Goldstein
alleges he was threatened with sedation if he did not agree
to take the tuberculosis medication. Id.
fails to state a cognizable claim against the named
defendants. In fact, many of Goldstein's claims allege
facts against Columbia Corrective Care. See Docket 1
at 2 and 4. Rule 8 of the Federal Rules of Civil Procedure
requires that a complaint set forth a short and plain
statement of the claim showing that [plaintiff] is entitled
to relief. Fed.R.Civ.P. 8(a)(2). This Rule also requires that
each claim be simple, concise and direct Fed.R.Civ.P.
9(e)(2). The purpose of this rule is that a defendant be
given fair notice of what the plaintiffs claim is and the
grounds upon which it rests. Romine v. Acxiom Corp.,
296 F.3d 701, 711 (8th Cir. 2002) citing Swierkiewcz v.
Sorema N.A., 534 U.S. 506 (2002). The complaint in this
case does not give any of the defendants such fair notice of
either the claims or grounds upon which they rest. The
complaint should therefore be dismissed for failure to state
a claim upon which relief may be granted under 28U.S.C.
it is ORDERED
Goldstein's motion for leave to proceed in forma pauperis
(Docket 3) is granted.
Goldstein's motion for a court-appointed attorney (Docket
5) is denied as moot.
Goldstein's complaint fails to state a claim upon which
relief may be granted and is dismissed without prejudice