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Wiseley v. Pennington County Sheriffs Office

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

February 6, 2019

MICHAEL WISELEY, Plaintiff,
v.
PENNINGTON COUNTY SHERIFFS OFFICE, OFFICIAL CAPACITY; BILLY DAVIS, LAW ENFORCEMENT OFFICER AT PENNINGTON COUNTY SHERIFFS OFFICE IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; AND LEONARD JACOBS, LAW ENFORCEMENT OFFICER AT PENNINGTON COUNTY SHERIFFS OFFICE IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; Defendants.

          ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS and STAYING LITIGATION

          JEFFREY L. VIKEN CHIEF JUDGE

         On July 27, 2018, plaintiff Michael Wiseley, an inmate at the Pennington County Jail, filed a pro se complaint pursuant to 42 U.S.C. § 1983 claiming violations of his constitutional rights. (Docket 1). Mr. Wiseley filed a motion for leave to proceed in forma pauperis and submitted a copy of his prisoner trust account report. (Dockets 2 & 3). Mr. Wiseley also requests court appointed counsel. (Docket 5).

         I. Motion to Proceed in forma pauperis

         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. Wiseley provided a copy of his prisoner trust account report signed by an authorized prison official. (Docket 3). The report shows an average monthly deposit since he arrived at the institution at which he is currently incarcerated of $0.61, an average monthly balance of $0.00, and a current balance of $0.00. Id. Based on this information, the court finds Mr. Wiseley is indigent and grants him leave to proceed in forma pauperis.

         II. Section 1915A Screening

         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). Because Mr. Wiseley 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).

         Mr. Wiseley's civil complaint contains various allegations stemming from his arrest and ongoing criminal prosecutions.[1] (Docket 1). He claims Defendants conducted an illegal search and seizure. Id. at p. 4. Mr. Wisely also claims defendants falsified law enforcement reports, “resulting in wrongful incarceration[.]” Id. at p. 5. A fair reading of Mr. Wiseley's complaint leads the court to conclude he claims he was falsely arrested and is now being maliciously prosecuted. In Wallace v. Kato, the Supreme Court held:

If a plaintiff files a false-arrest claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended.

549 U.S. 384, 393-94 (2007) (emphasis added). Based on these facts, the court finds it appropriate to stay the civil action until Mr. Wiseley's criminal cases are resolved. Mr. Wiseley's complaint relates to matters that may be the subject of suppression motions in his pending criminal cases.[2] “If [Mr. Wiseley] is ultimately convicted, and if the stayed civil suit would impugn that conviction, Heck[3] will require dismissal; ...


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