United States District Court, D. South Dakota, Southern Division
ORDER DISMISSING CASE
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
Charles Ray Johnson filed a pro se action seeking $ 1, 000,
000 from Defendant Michael Taylor for intentional infliction
of emotional distress. Doc. 1. Johnson also filed an
application to proceed in district court without prepaying
fees or costs, Doc. 2, and a motion to file
electronically, Doc. 3. For the reasons explained below, this
Court grants the application to proceed in district court
without prepayment of fees or costs, denies the motion to
file electronically, and dismisses the complaint without
prejudice to refiling.
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 several lawsuits in this
district, 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 meritless suits.
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)).
Complaint, Johnson alleges that Deputy States Attorney
Michael Taylor intentionally inflicted emotional distress
when Taylor did not communicate the reason for Johnson's
absence to the judge. Doc. 1 at 3. The Supreme Court of the
United States in Imbler v. Pachtman. 424 U.S. 409
(1976), held that "in initiating a prosecution and in
presenting the State's case, the prosecutor is immune
from a civil suit for damages under § 1983."
Id. at 431. "Absolute immunity covers
prosecutorial functions such as the initiation and pursuit of
a criminal prosecution, the presentation of the state's
case at trial, and other conduct that is intimately
associated with the judicial process." Brodnicki v.
City of Omaha. 75 F.3d 1261, 1266 (8th Cir. 1996). In
other words, "actions under taken by a prosecutor in
preparing for the initiation of judicial proceedings or for
trial, and which occur in the course of [his] role as an
advocate for the State, are entitled to the protections of
absolute immunity." Buckley v. Fitzsimmons, 509
U.S. 259, 273 (1993). Accordingly, Taylor has immunity and
dismissal of Johnson's Complaint against Taylor is
appropriate under § 1915(e)(2)(B)(iii). Therefore, it is
that this case is screened and Johnson's Complaint, Doc.
1, is dismissed without prejudice. It is further
that Johnson's Motion to proceed in forma pauperis, Doc.