United States District Court, D. South Dakota, Southern Division
1915A SCREENTNG AND ORDER DISMISSING CASE
Lawrence L. Piersol ATTEST United States District Judge.
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.
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. Id. He claims that these actions
violated his rights under the Fourth Amendment. Id.
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.
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.
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.
Claims against the State of South Dakota
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
Fourth Amendment Claims
claims his Fourth Amendment rights were violated in 2002 by
defendants, Hailing, Magistrate Judge Myren, and Smith.
See Docket 1 at 4. 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
Fifth Amendment Claim
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 ...