United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER SCREENING AND DISMISSING
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Charles Ray Johnson filed two closely related pro se-civil
rights lawsuits in succession under 42 U.S.C. §§
1983 and 1985(3). Both suits allege that Defendants committed
race-based discrimination and intentionally inflicted
emotional distress by conspiring to have Plaintiff illegally
arrested. Specifically, Plaintiff states that his probation
officer, John McQuistion, caused Plaintiff to be arrested at
the apartment of Plaintiffs wife, located at Green Briar
Apartments in Brookings, South Dakota. Plaintiff states that
he was not told that he would be in violation of the terms of
his probation if he traveled to Brookings to visit his wife.
Plaintiff avers that he has had a number of disputes with his
probation officer regarding his inability to maintain
employment, late arrival at meetings, outstanding fines, and
failure to pass a drug test. Plaintiff further states that
Ashley Johnson, the alleged apartment manager at Green Briar
Apartments in Brookings, South Dakota, lied to police
officers when she said that Plaintiff lived at the Green
Briar apartment that is rented by Plaintiffs wife. Plaintiff
also alleges that Ashley Johnson stated that felons are not
allowed to reside on the property. Plaintiff ultimately
argues that John McQuistion must have conspired with Ashley
Johnson in order to determine that he was living in
Brookings, which Plaintiff disputes, in violation of the
terms of his probation.
filed two lawsuits against Ashley Johnson and John McQuistion
over the same facts. In both 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 Johnson's Complaints.
I. 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 e.g Lundahl v. JP Morgan Chase
Bank, 2018 WL 3682503, *1 (D.S.D. 2018). A person maybe
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 Plaintiff has provided in his financial
affidavits, this Court finds that he may proceed in forma
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)).
Plaintiffs Constitutional Claims
§ § 1983 and 1985(3) require the violation of a
right protected under the Constitution or federal law as a
predicate. Gatlin ex. rel. Estate of Gatlin v.
Green. 362 F.3d 1089, 1093 (8th Cir. 2004) (internal
citations omitted); Federer v. Gephardt. 363 F.3d
754, 758 (8th Cir. 2004). Plaintiff has pled no such
violation. Even construing Plaintiffs Complaints liberally,
Plaintiff has not pled facts to support a constitutional or
federal law violation. Plaintiff has not alleged, for
instance, that his arrest, was conducted without a warrant,
nor that such warrant was unlawfully executed in violation of
the Fourth Amendment. U.S. v. Mims, 812 F.2d 1068,
1072 (8th Cir. 1987). Plaintiff himself alleges violations of
his probation that would have been sufficient grounds to
establish probable cause for his arrest-such as failing to
pass a drug test. Id. ("The task of a
magistrate in determining whether probable cause exists for
issuing a warrant is simply to make a practical, common-sense
decision whether ... the defendant has committed a
crime.") Nor has Plaintiff claimed that the detention
following his arrest was extended, such as to trigger a Due
Process Clause claim. Luckes v. County of Hennepin.
Minn., 415 F.3d 936, 939 (8th Cir. 2005). Finally, while
a blanket refusal to rent to applicants with a criminal
record may violate the Fair Housing Act, Plaintiff has not
claimed that Green Briar Apartments' alleged policy not
to rent to felons has resulted in a disparate impact on any
protected class. Texas Dep't of Hous. & Crnty.
Affairs v. Inclusive Cmtys. Project. Inc., 135 S.Ct. at
2514-15 (2015) (summarizing HUD's Discriminatory Effects
Standard in 24 C.F.R. § 100.500). Nor has Plaintiff
claimed the requisite injury to establish standing or such a
claim: he has not been denied the opportunity to rent from
Green Briar Apartments and his arrest was not based on his
status as a felon in violation of the alleged policy.
Plaintiffs Complaint contained a constitutional or federal
law claim, Plaintiffs conspiracy claim would still fail. A
private party may be held liable under § 1983 only if
that party is a "willful participant in joint activity
with the State or its agents." Gibson v. Regions
Fin. Corp., 557 F.3d 842, 846 (8th Cir. 2009). However,
the "mere furnishing of information to a law enforcement
officer, even if the information is false, does not
constitute joint activity with state officials."
Id. Ashley Johnson, then, was not acting as a state
official when she communicated with police officers or, as
Plaintiff alleges but provides no facts to support, when she
may have communicated with Plaintiff s probation officer.
Plaintiff has not alleged plausible facts that John
McQuistion conspired with anyone else. A conspiracy requires
two or more people. U.S. v. Slaughter. 128 F.3d,
623, 628 (8th Cir. 1997).
§ 1985(3) claim is similarly deficient. An essential
element of a claim of civil rights conspiracy under §
1985(3) is the existence of a "class-based invidiously
discriminatory animus." Larson by Larson v.
Miller, 76 F.3d 1446, 1454 (8th Cir. 1996) (internal
citations omitted). Plaintiff, who is African American, has
not alleged any facts-apart from his race-to support a claim
of race-based discrimination.
Claims for Intentional Infliction of Emotional
claims against Ashley Johnson and John McQuistion for
intentional infliction of emotional distress are state law
claims. A federal district court has original jurisdiction
over §§1983 and 1985(3) claims based on federal
question jurisdiction under 28 U.S.C. § 1331.
Johnson's state law claims arise out of the same incident
and share a common nucleus of operative fact; as; such, this
Court could exercise supplemental jurisdiction over these
claims under 28 U.S.C. § 1367 if the claims subject to
federal question jurisdiction remain. However, because
Johnson's federal claims should be dismissed, this Court
appropriately should decline to maintain jurisdiction over
Johnson's state law claims. 28 U.S.C. § 1367(c)(3).
Johnson can file infliction of emotional distress claims in
state court in Brookings County.