United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER
ROBERTO A. LANGI 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. These suits appear to arise out of the same facts
Johnson alleged in cases this Court previously screened:
namely, 4:18-CV-04098-RAL, 4:18-CV-04099-RAL,
4:18-CV-04100-RAL, and 4:18-CV-04140-RAL. In the instant
suits, Johnson alleges, without providing any factual
background, that his constitutional rights were violated when
police officer Damian Weets (Officer Weets) demanded that
Johnson show him his ID and when his probation officer John
McQuistion (McQuistion) subsequently detained him for having
been ticketed for failing to so provide his Id.
Johnson further alleges that the Brookings Police Department
has an unconstitutional policy of requiring police officers
to ask for Id. Johnson requests that he be
discharged from probation, that Officer Weets undergo anger
management training, that the Brookings Police Department
revise their policies requiring whether police officers may
ask for ID, and $3.5 million in damages.
opinions dated November 2 and November 14, 2018, this Court
set forth the factual background underlying, these claims:
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.
Johnson v. Brookings Police Dep't, 2018 WL
5729913, *1 (D.S.D. 2018). Since Johnson has . alleged no
factual-background in his current lawsuits such as would
survive dismissal under the screening procedure required by
28 U.S.C. § 1915(e)(2), this Court infers, -based on the
virtually identical nature of the claims and the requirement
to construe pleadings liberally, that the circumstances that
led to Johnson's prior suits also underlie his current
claims. In either case, this Court dismisses Johnson's
Complaints in accordance with the screening procedure
required by 28 U.S.C. § 1915(e)(2).
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 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 forma pauperis..
given that Johnson has now filed seven lawsuits against the
same defendants based on the same facts, with other lawsuits
against different defendants pending, it is incumbent upon
this Court to inform Johnson that "the decision whether
to grant or deny in forma pauperis status is within the sound
discretion of the trial court." Cross v. General
Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983)
(internal citations omitted). A judge, "after weighing
the relevant factors" may "properly determine
that a litigant's abusive conduct merits a prefiling
injunction." In. re Pointer, 345 Fed.Appx. 204,
205 (8th Cir. 2009). Plaintiffs "who in bad faith
consistently abuse the judicial process and privilege of
litigating at public expense" may be subject to
pre-filing review procedures "restricting the
availability of cost-free access to court." Bennett
v. Miller, 2014 WL 60092, *7 (D.S.D. 2014) (quoting
Peck v. Hoff, 660 F.2d 371, 374 (8th Cir. 1981)).
Johnson's multiple frivolous lawsuits may ultimately
support such an injunction should he continue to file
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). Complaints are "malicious"
Where the plaintiff knows that such complaint is based on
false allegations. In re Tyler, 839 F.2d 1290, 1293
(8th Cir.. 1988) (internal citations omitted).
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." 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
Court has ruled in Johnson's prior case against Brookings
Police Department that "[i]t is 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." Johnson v. Brookings
Police Dep't., 2018 WL 5729913, *2 (D.S.D.
2018). As such, Johnson's claims of false arrest and
conspiracy to deprive him of his civil rights against the
Brookings Police Department should be dismissed.
Constitutional Claims Against Officer Weets
claims that Officer Weets conspired to deprive Johnson of his
civil rights and unlawfully detained him when he ultimately
arrested Johnson for False Impersonation to Deceive Law
Enforcement for failing to show his Id. Johnson has
filed his suit against ...