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Provost v. State

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

December 18, 2019

SHANE PROVOST, Plaintiff,
v.
STATE OF SOUTH DAKOTA, JAMES HAULING, LAW ENFORCEMENT OFFICER AT COUNTY OF HUGHES, PIERRE, SD; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; MARK SMITH, STATES ATTORNEY AT COUNTY OF HUGHES, PIERRE, SD; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; AND SCOTT MYREN, MAGISTRATE JUDGE AT HUGHES COUNTY, PIERRE, SD; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; Defendants.

          1915A SCREENTNG AND ORDER DISMISSING CASE

          Lawrence L. Piersol ATTEST United States District Judge.

         Plaintiff, Shane Provost, filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Docket 1. Provost is an inmate at the South Dakota State Penitentiary. This Court granted Provost leave to proceed in forma pauperis and he paid his initial filing fee on April 8, 2019. Docket 5. This Court now screens Provost's complaint under 28 U.S.C. § 1915A.

         FACTUAL BACKGROUND

         Provost sues each defendant in their individual and official capacities. Docket 1. In count one, Provost claims that on September 8, 2002, he was arrested without a warrant. Id. at 4. He alleges that Officer James Hallings filed an "Affidavit of Probable Cause for Warrantless Arrest." Id. Provost asserts that the affidavit was never signed by Magistrate Judge Scott P. Myren, but was instead signed by law enforcement officer, Mark Smith, and was done so in violation of a South Dakota statute.[1] Id. He claims that these actions violated his rights under the Fourth Amendment. Id.

         Provost asserts that his Fifth Amendment due process rights have been violated in count two. Id. at 5. He claims that on February 5, 1973, he was unlawfully detained in Iowa. Id. He, claims that he is "[a] citizen of Iowa, by [b]irth, and the State [of] South Dakota has denied said citizen of due process of law." Id. In count three, Provost alleges an equal protection violation based on the events that allegedly occurred in 1973 and 2002. Id. at 6. He believes he was denied equal protection because he is a Native American. Id. Provost claims that the alleged violations have ruined his life and have caused him serious bodily injury. Id. Provost request that his case be remanded back to the state court. 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 (2007J; 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 Ail. 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 Provost's individual claims under 28 U.S.C. § 1915A.

         A. Claims against the State of South Dakota

         Provost named the State of South Dakota as a defendant. Docket 1 at 1. The State of South Dakota is generally immune from suit. Will v. Mich. Dep't. of State Police, 491 U.S. 58, 65 (1989). The Supreme Court has explained that Congress, in passing 42 U.S.C. § 1983, did not abrogate states' Eleventh Amendment immunity from suit in federal court. Id. (citations omitted). "Eleventh Amendment immunity extends to states and arms of the state[.]" Thomas v. St. Louis Bd. of Police Comm'rs, 447 F.3d 1082, 1084 (8th Cir. 2006) (internal quotation omitted). Provost's claims against the South Dakota are barred by the Eleventh Amendment and dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

         B. Fourth Amendment Claims

         Provost claims his Fourth Amendment rights were violated in 2002 by defendants, Hailing, Magistrate Judge Myren, and Smith. See Docket 1 at 4.[2] A complaint may be dismissed by the court's own motion as frivolous under 28 U.S.C. § 1915(d) when it is apparent the statute of limitations has run. Myers v. Vogal , 960 F.2d 750, 751 (8th Cir. 1992). While § 1983 does not contain a specific statute of limitations, the Supreme Court has instructed courts to apply the most analogous statute of limitations to claims made under § 1983. Wilson v. Garcia, 471 U.S. 261, 266-68 (1985). South Dakota adopted a specific statute that provides that civil rights actions must be brought within three years after the alleged constitutional deprivation occurred or be barred. Bell v. Fowler, 99 F.3d 262, 266 (8th Cir. 1996) (referencing SDCL 15-2-15.2). Because the alleged Fourth Amendment violations occurred in 2002 and Provost has not suggested a reason for tolling the statute of limitations, these claims are dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1).

         C. Fifth Amendment Claim

         Provost claims that his Fifth Amendment due process rights were violated on February 5, 1973, when he was allegedly unlawfully detained in Iowa. Docket 1 at 5. Again, this claim is more than three years old and Provost does not state a reason for tolling the statute of limitations. Id. As expressed in the analysis above, because Provost's Fifth Amendment claims allegedly occurred in 1973, his claims are barred by the statute of ...


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