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Hunter v. Rapid City Police Department

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

November 13, 2019

MICHAEL HUNTER and
v.
RAPID CITY POLICE DEPARTMENT, in both Official and Individual Basis; OFFICER BAKER and CITY OF RAPID CITY, Defendants.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         INTRODUCTION

         Plaintiffs Michael Hunter and the Civil Rights Center of South Dakota, appearing pro se, filed a complaint under 42 U.S.C. § 1983 alleging defendant Baker prevented him from “soliciting for charity from citizens” on a Rapid City, South Dakota, sidewalk. (Docket 1 at pp. 1-5). Mr. Hunter also filed a motion for leave to proceed in forma pauperis, a motion for a temporary restraining order, an amended complaint, and a motion to amend the complaint. (Dockets 2, 3, 6, & 7). The court grants Mr. Hunter leave to proceed in forma pauperis and, in screening this case, dismisses the Rapid City Police Department as a defendant. The court then orders Mr. Hunter to provide a usable address before allowing service.

         I. In Forma Pauperis Status

         Section 1915(a)(1) of Title 28 of the United States Code directs the court to authorize the commencement of a civil action without prepayment of fees upon proof of plaintiff's inability to pay. 28 U.S.C. § 1915(a)(1). Mr. Hunter filed a handwritten declaration attesting to his indigency. (Docket 2-1). The declaration is not fully legible, but the court discerns that Mr. Hunter has a negative balance on his bank account, is not employed, and owns a vehicle valued less than $500. The court finds Mr. Hunter is indigent within the meaning of § 1915(a) and grants him leave to proceed in forma pauperis.

         II. Complaint Screening

         A. Legal standard

         Because plaintiff is proceeding in forma pauperis, the court must screen his complaint pursuant to 28 U.S.C. § 1915. That statute provides:

Notwithstanding any filing fee, . . . the court shall dismiss the case at any time if the court determines that--
(B) the action or appeal-
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2). Subsection (e)(2) allows the court to sua sponte review a complaint filed with an in forma pauperis application to determine if the action is frivolous, malicious, fails to state a claim, or seeks monetary relief against a defendant or defendants who are immune from such relief.

         In applying these principles, the court must construe plaintiff's pro se complaint liberally. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). This means “that if the essence of an allegation is discernible, even though it is not pleaded with legal nicety, then the district court should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework.” Jackson v. Nixon, 747 F.3d 537, 544 (8th Cir. 2014) (internal ...


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