Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Merrival v. Jackley

United States District Court, D. South Dakota, Western Division

December 3, 2018

MICHEAL LYNN MERRIVAL, JR., Plaintiff,
v.
MARTY J. JACKLEY, ATTORNEY GENERAL OF SOUTH DAKOTA, in his individual and official capacity; PENNINGTON COUNTY, COUNTY OF THE STATE OF SOUTH DAKOTA, in its individual and official capacity; BRIAN MUELLER, CHIEF DEPUTY AT PENNINGTON COUNTY JAIL, in his individual and official capacity; PENNINGTON COUNTY JAIL, COUNTY JAIL AT PENNINGTON COUNTY, in its individual and official capacity; CAPTAIN BROOK HAGA, COUNTY JAIL CAPTAIN AT PENNINGTON COUNTY JAIL, in her individual and official capacity; REBECCA L. MANN, LAWYER-ATTORNEY-COURT OFFICER AT PENNINGTON COUNTY OF SOUTH DAKOTA, in her individual and official capacity, Defendants.

          ORDER GRANTING IN FORMA PAUPERIS STATUS AND DISMISSING CASE

          JEFFREY L. VIKEN, CHIEF JUDGE

         Plaintiff Micheal Merrival, Jr., an inmate at the Pennington County Jail in Rapid City, South Dakota, filed a second amended complaint against the defendants. (Docket 6). Mr. Merrival also moves for leave to proceed in forma pauperis and submitted a current copy of his prisoner trust account report. (Dockets 7 & 8).

         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. Merrival provided copies of his prisoner trust account report signed by an authorized official. (Docket 3). The report shows an average monthly deposit of $0, an average monthly balance of $0, and a current balance of $0. Id. Based on this information, the court finds that Mr. Merrival is indigent, qualifies for in forma pauperis status and is not required to make an initial partial filing fee payment. These findings do not discharge the $350 filing fee but rather allow a prisoner the opportunity to pay the filing fee in installments. See 28 U.S.C. § 1915(b)(1) (“[I]f a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of the filing fee.”).

         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. Merrival 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. Merrival asserts federal jurisdiction based on: 28 U.S.C. § 1343(a)(3), 42 U.S.C. §§ 1983 and 1985 and 28 U.S.C. § 2202. (Docket 6 at p. 1). Mr. Merrival's complaint contains three counts.

         Count I alleges a violation of the equal protection clause of the Fourteenth Amendment. (Docket 6 at p. 5). On the complaint form for the designation of the issues presented, Mr. Merrival checked “Disciplinary proceeding, ” “Medical care, ” “Retaliation, ” “Access to the court, ” “Mail, ” “Property” and “Other: To Prosecute and Exerise[sic] Laws Equally to U.S. citizen.” Id. He alleges Attorney General “Marty Jackley will not prosecute violators of South Dakota Law, within all of Mr. Merrival[']s state court criminal cases and county jail retaliations.” Id. Mr. Merrival alleges Pennington County Deputy States Attorney “Lara Roetzel committed perjury against Mr. Merrival's attorney-client privileges and work-product doctrine of state law.” Id. He also claims Pennington County, the Pennington County Jail, Chief Deputy Brian Mueller and Captain Brook Haga “will not allow Mr. Merrival to be equally protected by the attorney-client privileges and work-product doctrine of a self-representative.” Id. The amended complaint alleges Attorney Rebecca Mann “made all the above violators to make and enforce a law to [r]etaliated [sic] against Mr. Merrival's privileges and immunities of state and federal law.” Id. He further alleges Ms. Mann “made her clients violate Mr. Merrival in a retaliation conduct against Mr. Merrival's legal and state and federal privileges and immunities of Attorney-Client Privileges and Work-Product Doctrines.”

         Count II alleges a violation of the privileges and immunities clause of the Fourteenth Amendment. Id. at p. 6. On the complaint form for the designation of the issues presented, Mr. Merrival checked “Disciplinary proceeding, ” “Medical care, ” “Retaliation, ” “Access to the court, ” “Mail, ” “Property” and “Other: Self-Representation of a U.S. citizen.” Id. Mr. Merrival alleges Mr. Jackley, Pennington County, Pennington County Jail, Chief Deputy Mueller and Captain Haga deprived him of the privileges and immunities of “acting as a self-representative” with the “work-product doctrine” in his own legal matters. Id. Plaintiff claims after he filed a federal civil lawsuit in 2015, Attorney Mann “made her clients retaliate against Mr. Merrival by making and enforcing a law to obstruct, impede, deprive, abridge the privileges and immunities of Attorney-Client privileges and Work-Product Doctrine not attached and not protected.” Id. The amended complaint alleges “Attorney . . . Mann conspired with all the above defendants, her clients, to injure, obstruct, damage, deprive Mr. Merrival's Self-Representative's privileges and immunities of Attorney-Client Privileges and Work-Product Doctrine of state legal procedures matters and federal legal proceeding's matters in Court.” Id. The complaint alleges “Ms. . . . Mann allowed her clients to retaliate[] against Mr. Merrival's lawsuit proceeding by conspiring with them to obstruct, deprive, and abridge Mr. Merrival's Attorney-Client Privileges and Work-Product Doctrine's privileges and immunities as a self-representative in all Mr. Merrival's legal matters.” Id.

         Count III alleges violation of “the right to due process of law, to life, liberty, property of the (14th) Fourteenth Constitutional Amendment, [and] conspired against the Declaratory Judgment Act of 28 U.S.C.A. § 2202.” Id. at 7. On the amended complaint form for the designation of the issues presented, Mr. Merrival checked “Disciplinary proceeding, ” “Retaliation, ” “Access to the court, ” “Mail, ” “Property” and “Other: Self-Representation of a U.S. citizen.” Id. Mr. Merrival alleges “Attorney . . . Mann and all her clients or who are defendants, Marty J. Jackley, Pennington County, Pennington County Jail, Chief Deputy Brian Mueller, [and] Captain Brook Haga, all conspired together to deprive . . ., obstruct, abridge, damage Mr. Merrival's right to Due Process of Law to life, liberty, property to proceed in state and federal courts with, and to due process, to protections of privileges and immunities of a self-representative in all legal matters, to be guaranteed Due Process of Law.” Id. While incarcerated at the Pennington County Jail, Mr. Merrival alleges he acted as his own attorney in “all legal proceedings and files pleadings, [and] motions.” Id. Mr. Merrival claims he was “denied mailing them to the courts because [he] cannot afford large mila [sic] envelopes.” Id. The complaint alleges “all the Defendants will stop his due process because of local county jail rules of holding . . . limited legal documents.” Id. The complaint claims “Mr. Merrival trie[d] to send large documental work-product to be due processed and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.