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Tripp v. U.S. Federal Government

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

December 17, 2019

KEVIN CHRISTOPHER MICHEAL TRIPP, Plaintiff,
v.
U.S. FEDERAL GOVERNMENT; MATTHEW THELEN, FEDERAL CLERK OF COURTS; THE HONORABLE VERONICA L. DUFFY, MAGISTRATE JUDGE FOR THE UNITED STATES DISTTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA; JOHN M. STROMAN, ASSISTANT ATTORNEY GENERAL OF SOUTH DAKOTA; IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES Defendants.

          1915A SCREENING AND ORDER DISMISSING COMPLAINT

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Plaintiff, Kevin Christopher Micheal Tripp, filed a pro se civil rights lawsuit under 28 U.S.C. § 1331; Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Docket 1. Tripp is an inmate at the South Dakota State Penitentiary. He moved to proceed in forma pauperis and has provided the court with his prisoner trust account. Dockets 3, 4. He also moved to appoint counsel (Docket 2) and filed motions to amend his complaint (Dockets 6, 7, 8). This court grants Tripp's most recent motion to amend (Docket 8) and will base the 1915A screening on his proposed amended complaint (Docket 8-1). Because this court has granted Tripp's most recent motion to amend (Docket 8), his remaining motions to amend (Dockets 6, 7) are denied as moot.

         FACTUAL BACKGROUND

         The facts as alleged in the amended complaint are: that the United States Government is refusing to let Tripp file the “Strawman Act and apply for [his] 1 percent share holding [sic] over the corperate [sic] United States of America.” Docket 8-1 at 2. Matthew Thelen, the Clerk of Courts for the United States District Court for the District of South Dakota has refused to send Tripp the “Strawman Act paperwork.” Id.

         United States District Court Magistrate Judge, Veronica L. Duffy will not allow Tripp to file his federal habeas corpus until he files the $5.00 filing fee. Id. Tripp asserts that the Magistrate Judge's action is a violation of his due process rights. Id. at 5. John M. Stroman, the Assistant Attorney General is not allowing Tripp to proceed with his federal habeas corpus. Id. at 4. Stroman will not let Tripp proceed because Tripp has not completed his state court remedies. Id. Tripp believes that Stroman is making up this rule and says Stroman is violating his First Amendment right to access the courts. Id. In his request for relief, Tripp asks for one million dollars and the paperwork to file as a strawman, as well as paperwork to apply to be a shareholder of the United States. Id. at 7.

         LEGAL STANDARD

         The court must assume as true all facts well pleaded in the complaint. Estate of Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995). Civil rights and pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). 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); see also 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).

         A complaint “does not need detailed factual allegations . . . [but] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). If it does not contain these bare essentials, dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). Twombly requires that a complaint's factual allegations must be “enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true[.]” Twombly, 550 U.S. at 555; see also Abdullah v. Minnesota, 261 Fed.Appx. 926, 927 (8th Cir. 2008) (noting that a complaint must contain either direct or inferential allegations regarding all material elements necessary to sustain recovery under some viable legal theory). Under 28 U.S.C. § 1915A, the court must screen prisoner complaints and dismiss them if they are “(1) frivolous, malicious, or fail[] to state a claim upon which relief may be granted; or (2) seek[] monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). The court will now assess each individual claim under 28 U.S.C. § 1915A.

         DISCUSSION

         I. Motion to Proceed In Forma Pauperis

         Tripp filed a motion to proceed in forma pauperis and provided the court with his prisoner trust account. Dockets 3, 4. Tripp reports a current balance of $0.04 and an average monthly balance for the last six months as negative $2.30. Docket 4 at 1.

         Under the Prison Litigation Reform Act (PLRA), a prisoner who “brings a civil action or files an appeal in forma pauperis . . . shall be required to pay the full amount of a filing fee.” 28 U.S.C. § 1915(b)(1). “ ‘[W]hen an inmate seeks pauper status, the only issue is whether the inmate pays the entire fee at the initiation of the proceedings or over a period of time under an installment plan.' ” Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (quoting McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997)).

         The initial partial filing fee that accompanies an installment plan is calculated according to 28 U.S.C. § 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 ...

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