United States District Court, D. South Dakota, Southern Division
1915A SCREENING AND ORDER DISMISSING
E. SCHREIER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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).
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.
Motion to Proceed In Forma Pauperis
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.
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)).
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