United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Charles Ray Johnson (Johnson) filed three closely related pro
se civil rights lawsuits in succession under 42 U.S.C. §
1983. All three suits allege that Defendants falsely arrested
and used excessive force against him during his arrest,
thereby violating his constitutional rights and either
intentionally or negligently inflicting emotional distress.
Specifically, Johnson states that police officer Damian Weets
(Officer Weets), having been called to investigate
Johnson's activities as he sat with a woman in a car
outside a residential housing unit for five hours, brandished
his weapon and pointed it at Johnson after Johnson failed to
provide the officer his identification. Johnson claims that
the officer had no probable cause to investigate
Johnson's activities and believes that police were called
by residents whom Johnson had previously reported to the
police for failure to supervise a toddler. Officer Weets
ultimately arrested Johnson for False Impersonation to
Deceive Law Enforcement, and Johnson, who was on state
probation or parole, spent approximately one week in the
South Dakota Department of Correction's Jameson Annex as
a result of the arrest.
filed three lawsuits against the Brookings Police Department
and Officer Weets over the same facts. In the case filed as
18-CV-4098-RAL, Johnson requested appointment of counsel and
in each of the three cases Johnson sought leave to proceed in
forma pauperis. In accordance with the screening procedure
required by 28 U.S.C. § 1915(e)(2), the Court dismisses
Standard of Review
brought in forma pauperis are subject to a two-step screening
process, which first requires the plaintiff to demonstrate
financial eligibility to proceed without prepayment of fees.
Martin-Trigona v. Stewart. 691 F.2d 856, 857 (8th
Cir. 1982); see &g., Lundahl v. JP Morgan Chase
Bank, 2018 WL 3682503, * 1 (D.S.D. 2018). A person may
be granted permission to proceed in forma pauperis if he or
she "submits an affidavit that includes a statement of
all assets such [person] possesses [and] that the person is
unable to pay such fees or give security therefor." 28
U.S.C. § 1915(a)(1). The litigant is not required to
demonstrate absolute destitution, and the determination of
whether a litigant is sufficiently impoverished to qualify to
so proceed is committed to the court's discretion.
Lee v. McDonald's Corp., 231 F.3d 456 (8th Cir.
2000); Cross v. Gen. Motors Corp., 721 F.2d 1152,
1157 (8th Cir. 1983); see, e.g., Babino v.
Janssen & Son, 2017 WL 6813137, *1 (D.S.D. 2017). In
light of the information Johnson has provided in his
financial affidavits, this Court finds that he may proceed in
second step of the in forma pauperis screening process
requires a district court to determine whether a pro se civil
action against a governmental entity or employee should be
dismissed as "frivolous, malicious, or fail[ing] to
state a claim upon which relief may be granted" or for
"seek[ing] monetary relief from a defendant who is
immune from such relief." 28 U.S.C. § 1915(e)(2);
Martin-Trigona, 691 F.2d at 857; see also
Lundahl, at *1. Pro se complaints must be liberally
construed. Erickson v. Pardus. 551 U.S. 89, 94
(2007); see also Native Am. Council of Tribes v.
Solem. 691 F.2d 382 (8th Cir. 1982). Notwithstanding its
liberal construction, a pro se complaint may be dismissed as
frivolous "where it lacks an arguable basis either in
law or in fact;" that is, where the claim is "based
on an indisputably meritless legal theory" or where,
having "pierce[d] the veil of the complaint's
factual allegations," the court determines those facts
are . "fantastic or delusional." Neitzke v.
Williams, 490 U.S. 319, 325, 327-28 (1989) (internal
citations omitted); see also Denton v. Hernandez.
504 U.S. 25, 33 (1992).
may dismiss a complaint for failure to state a claim "as
a matter of law if it is clear that no relief could be
granted under any set of facts that could be proved
consistent with the allegations." Neitzke, 490
U.S. at 327 (1989) (internal citations omitted). To avoid
dismissal, a complaint "must show that the plaintiff
'is entitled to relief,' ... by alleging
'sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.'"
Torti v. Hoag, 868 F.3d 666, 671 (8th Cir. 2017)
(quoting In re Pre-Filled Propane Tank Antitrust
Litig., 860 F.3d 1059, 1063 (8th Cir. 2017) (en
banc). Fed.R.Civ.P. 8(a)(2), and Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). To determine whether a
claim is plausible on its face is a "context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense." Ashcroft v.
Iqbal, 556 U.S. at 679 (2009). A complaint must allege
"more than labels and conclusions." Torti,
868 F.3d at 671 (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
Constitutional Claims Against Brookings Police
well-settled law that police departments, sheriffs offices,
and jails are not persons within the meaning of 42 U.S.C.
§ 1983 and are thus not amenable to suit. See,
e.g., De La Garza v. Kandiyohi County Jail
Correctional Institution, 18 Fed.Appx. 436, 437(8thCir.
2001); see also Purchase v. Sturgis Police Dept.
2015 WL 1477733, *12 (D.S.D. 2015); and Ferrell v.
Williams County Sherriffs Office. 2014 WL 6453601 (N.D.
2014) (collecting cases). Consequently, Johnson's claims
of false arrest and use of excessive force against the
Brookings Police Department should be dismissed.
Johnson's state law claims against Brookings Police
Department are discussed below.
Constitutional Claims Against Officer Weets
claims that Officer Weets falsely arrested him and used
excessive force in violation of the Fourth Amendment right
against unreasonable search and seizure. Johnson does not
state whether his suit against Officer Weets is in the
officer's individual or official capacity. However, where
a complaint "does not specifically name the defendant in
his individual capacity, it is presumed he is sued only in
his official capacity." Baker v. Chisom, 501
F.3d 920, 923 (8th Cir. 2007).
brought against a state official in his or her official
capacity is treated as a suit against the state or political
subdivision itself. Kentucky v. Graham. 473 U.S.
159, 165 (1985). In an official capacity suit, the plaintiff
must demonstrate that a policy or custom of the governmental
entity of which the official was an agent motivated the
alleged constitutional violation. Id. at 166;
see also Hafer v. Melo. 502 U.S. 21, 25 (1991).
State officials may only be sued in their official capacity
for injunctive relief, not for damages. See Arizonans for
Official English v. Arizona. 520 U.S. 43, 69 n.24
(1997); and Will v. Michigan Dept. of State Police.
491 U.S. 58, 71 n.10 (1989).
establish a claim for such custom liability, plaintiff must
demonstrate the following:
(1) The existence of a continuing, widespread, persistent
pattern of unconstitutional misconduct by the governmental