Walker v. Roche et al

Filing 5

INITIAL Review Order: 1 Application to proceed in forma pauperis is granted. The clerk's office is directed to file the complaint without the prepayment of the filing fee. The plaintiff is directed to submit an initial partial filing fee of $53.70 by no later than 10/8/14. The institution having custody of the plaintiff is directed to collect and remit monthly payments until the $350.00 filing fee is paid in full. The clerk's office is directed to send a copy of this orde r and the notice of collection of filing fee to the appropriate official at the place where the plaintiff is an inmate. The plaintiff's 42 U.S.C. § 1983 action is dismissed pursuant to 28 U.S.C. §1915(e)(2)(B). The dismissal of the ins tant action counts against the plaintiff for purposes of the three-dismissal rule set forth in 28 U.S.C. § 1915(g). The plaintiff's motion for temporary restraining order or preliminary injunction and for appointment of counsel 4 is denied. Signed by Chief Judge Linda R Reade on 9/18/14. (ksy)(Copy w/NEF to Plf and Anamosa State Penitentiary Warden)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION

MAURICE WALKER,
Plaintiff,

No. C14-0082-LRR

vs.
MARY ROCHE, JOHN FAYRAM,
JOHN BALDWIN,

ORDER

Defendants.
____________________________
This matter is before the court on the plaintiff’s application to proceed in forma
pauperis (docket no. 1), which was filed on June 25, 2014, and motion for temporary
restraining order or preliminary injunction and for appointment of counsel (docket no. 4),
which was filed on August 29, 2014. Along with his application to proceed in forma
pauperis, the plaintiff submitted a complaint under 42 U.S.C. § 1983 (docket no. 1-1).
I. IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915
On July 7, 2014, the court directed the plaintiff to submit a certificate of inmate
account as required by 28 U.S.C. § 1915. On July 29, 2014, the plaintiff complied with
the court’s directive. Based on the plaintiff’s application to proceed in forma pauperis and
certificate of inmate account, the court concludes that the plaintiff does not have sufficient
funds to pay the required filing fee. 28 U.S.C. § 1914(a) (requiring $350.00 filing fee).
Thus, in forma pauperis status shall be granted to the plaintiff. See generally 28 U.S.C.
§ 1915. The clerk’s office shall file the complaint without the prepayment of the filing fee.
Although the court deemed it appropriate to grant the plaintiff in forma pauperis status, the
plaintiff is required to pay the full $350.00 filing fee by making payments on an installment
basis. 28 U.S.C. § 1915(b)(1); see also In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997)

(“[T]he [Prisoner Litigation Reform Act] makes prisoners responsible for their filing fees
the moment the prisoner brings a civil action or files an appeal.”). The full filing fee will
be collected even if the court dismisses the case because it is frivolous or malicious, fails
to state a claim on which relief may be granted, or seeks money damages against a
defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).
Here, the plaintiff must pay an initial partial filing fee in the amount of 20 percent
of the greater of his average monthly account balance or average monthly deposits for the
six months preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Based on his
average monthly deposits, the court finds that the initial partial filing fee is $53.70. Id.
The plaintiff shall submit $53.70 by no later than October 8, 2014. Id. If necessary, the
plaintiff may request in a written motion an extension of time to pay the initial partial filing
fee.
In addition to the initial partial filing fee, the plaintiff must “make monthly
payments of 20 percent of the preceding month’s income credited to the prisoner’s
account.” 28 U.S.C. § 1915(b)(2). The statute places the burden on the prisoner’s
institution to collect the additional monthly payments and forward them to the court.
Specifically,
[a]fter payment of the initial partial filing fee, the prisoner
shall be required to make monthly payments of 20 percent of
the preceding month’s income credited to the prisoner’s
account. The agency having custody of the prisoner shall
forward payments from the prisoner’s account to the clerk of
the court each time the amount in the account exceeds $10
until the filing fees are paid.
28 U.S.C. § 1915(b)(2). Therefore, after the plaintiff pays in full the initial partial filing
fee, the remaining installments shall be collected by the institution having custody of the
plaintiff. Id. The clerk’s office shall send a copy of this order and the notice of collection
of filing fee to the appropriate official at the place where the plaintiff is an inmate.

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II. STANDARD OF REVIEW
A pro se complaint must be liberally construed. See Hughes v. Rowe, 449 U.S. 5,
9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Smith v. St. Bernards
Reg’l Med. Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994). In addition, unless the facts alleged
are clearly baseless, they must be weighed in favor of the plaintiff. Denton v. Hernandez,
504 U.S. 25, 32-33 (1992). A court, however, can dismiss at any time a complaint filed
in forma pauperis if the complaint is frivolous, malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief against a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b)(1). A claim is “frivolous”
if it “lacks an arguable basis in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989); accord Cokeley v. Endell, 27 F.3d 331, 332 (8th Cir. 1994). An action fails to
state a claim upon which relief can be granted if it does not plead “enough facts to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). Accordingly, a court may review the complaint and dismiss sua sponte those
claims that fail “‘to raise a right to relief above the speculative level. . . .’”, see Parkhurst
v. Tabor, 569 F.3d 861, 865 (8th Cir. 2009) (quoting Bell Atl., 550 U.S. at 555), or that
are premised on meritless legal theories or clearly lack any factual basis, see Neitzke, 490
U.S. at 325. See, e.g., Denton v. Hernandez, 504 U.S. at 27 (considering frivolousness);
Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (concluding that a district court may
dismiss an action if an affirmative defense exists).
III. CLAIM ASSERTED
Currently confined at the Anamosa State Penitentiary in Anamosa, Iowa, the
plaintiff, proceeding pro se, submitted a complaint to redress issues that are related to his
parental rights. Jurisdiction is predicated on 28 U.S.C. § 1343. Under 28 U.S.C. §
1391(b), venue appears to be proper as the events giving rise to the instant action occurred
in this district.
The statement of claim portion of the complaint is as follows:
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On June 22, 2005, I came to the Anamosa State Penitentiary
to serve a life sentence. I have nine children and had full
custody of the children before I came to prison. And, from the
time that I came to prison in June of 2005, I talked to and
visited my children. Then, on January 24, 2011, the prison
and Roche, the director of the Office of Victim and Restorative
Justice Programs, stated that I could no longer have contact
with any immediate family members, including all of my
children. Communication by telephone, visits, O-mail and
third party was prohibited. I was at home with my children all
their lives before going to prison. Going to prison was bad,
but not seeing me or talking to me made matters worse. The
children started having problems in school. Some of the
children had to receive treatment for clinical depression.
Seven of the nine kids are under psychotherapy. When the
children were able to come and see me and have phone calls
with me, we had no problems. This was not from a court
order. This decision was from Roche and Fayram, the
Warden of the Anamosa State Penitentiary. Fayram complied
and enforced it. I and my children and the caretaker of my
underage children appealed to Roche and Fayram. I also
appealed to the Citizens’ Aide/Ombudsman and to Baldwin,
the director of the Iowa Department of Corrections. After the
appeals, Fayram and Roche let me see all of the children after
they turned 18 years old. But, I cannot see all the children
under 18 years old or have contact with any of them. Roche
and Fayram’s order to not have communication with my
children was and is cruel and unusual punishment and is
outside of their authority. Iowa Code section 598.41B(2)
states: In determining whether visitation would be in the best
interests of the child pursuant to subsection 1, the court shall
consider several criteria. If you look at the memorandum of
January 24, 2011 (attached), none of the criteria was
considered when a decision was made. Prior notice was not
given to me that a decision was going to be made concerning
the visitation of my minor children. Since no hearing was
held, I was not able to challenge the January 24, 2011
decision. No guardian ad litem was appointed prior to the
January 24, 2011 decision. I used the prisoner grievance
procedure available at the Anamosa State Penitentiary to try
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and resolve this problem. On February 15, 2011, I appealed
the decision to Fayram. On February 26, 2011, I appealed the
decision of the warden to Iowa Department of Corrections.
And, on March 14, 2011, the Citizens’ Aide/Ombudsman
responded by stating that there is no further role for our office
in this matter at this time.
As relief, the plaintiff states that he wants: declaratory relief, injunctive relief,
$85,000,000 in compensatory damages, $139,000,000 in punitive damages, the costs of
this suit to be paid and any additional relief that is just, proper and equitable.
IV. ANALYSIS
A. Claims Under 42 U.S.C. § 1983
Title 42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . .
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding
for redress . . .
42 U.S.C. § 1983 was designed to provide a “broad remedy for violations of federally
protected civil rights.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 685 (1978).
However, 42 U.S.C. § 1983 provides no substantive rights. Albright v. Oliver, 510 U.S.
266, 271 (1994); Graham v. Conner, 490 U.S. 386, 393-94 (1989); Chapman v. Houston
Welfare Rights Org., 441 U.S. 600, 617 (1979). “One cannot go into court and claim a
‘violation of [42 U.S.C.] § 1983’ — for [42 U.S.C.] § 1983 by itself does not protect
anyone against anything.” Chapman, 441 U.S. at 617. Rather, 42 U.S.C. § 1983
provides a remedy for violations of all “rights, privileges, or immunities secured by the
Constitution and laws [of the United States].” 42 U.S.C. § 1983; see also Albright, 510
U.S. at 271 (42 U.S.C. § 1983 “merely provides a method for vindicating federal rights
elsewhere conferred.”); Graham, 490 U.S. at 393-94 (same); Maine v. Thiboutot, 448
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U.S. 1, 4 (1980) (“Constitution and laws” means 42 U.S.C. § 1983 provides remedies for
violations of rights created by federal statute, as well as those created by the
Constitution.). To state a claim under 42 U.S.C. § 1983, a plaintiff must establish: (1) the
violation of a right secured by the Constitution or laws of the United States, and (2) the
alleged deprivation of that right was committed by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).
B. Plaintiff’s Claim
Given the facts that are alleged in the complaint, the court concludes that the
plaintiff’s assertions do not give rise to a viable claim under 42 U.S.C. § 1983. The
applicable statute of limitations is the period governing personal injury actions. See Wilson
v. Garcia, 471 U.S. 261, 276-80 (1985); see also City of Rancho Palos Verdes v. Abrams,
544 U.S. 113, 123 n.5 (2005) (reaffirming that the statute of limitations for a 42 U.S.C.
§ 1983 claim is generally the applicable state-law period for personal-injury torts); Wycoff
v. Menke, 773 F.2d 983, 984-87 (8th Cir. 1985) (finding it appropriate to apply Iowa’s
personal injury statute of limitations to actions brought under 42 U.S.C. § 1983). In Iowa,
the statute of limitations for personal injury actions is two years after accrual. Iowa Code
§ 614.1(2). While Iowa’s statute of limitations for personal injury tort claims determines
the length of the statute of limitations for a 42 U.S.C. § 1983 action, “federal rules
conforming in general to common-law tort principles” govern when the cause of action
accrues and the statute of limitations begins to run. Wallace v. Kato, 549 U.S. 384, 388
(2007). A cause of action accrues “when the plaintiff has ‘a complete and present cause
of action,’ . . . that is, when ‘the plaintiff can file suit and obtain relief.’” Id. (quoting
Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S.
192, 201 (1997)). In Wallace, the Supreme Court found:
“Under the traditional rule of accrual . . . the tort cause of
action accrues, and the statute of limitations commences to
run, when the wrongful act or omission results in damages.
The cause of action accrues even though the full extent of the
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injury is not then known or predictable.” 1 C. Corman,
Limitation of Actions § 7.4.1, pp. 526-527 (1991) (footnote
omitted); see also 54 C.J.S., Limitations of Actions § 112, p.
150 (2005).
Id. at 391 (alteration in original). So, under federal law, a cause of action accrues when
the plaintiff knows or has reason to know of the harm. See Hall v. Elrod, 399 F. App’x
136, 137 (8th Cir. 2010) (citing Eidson v. State of Tenn. Dept. of Children’s Servs., 510
F.3d 631, 635 (6th Cir. 2007), for the proposition that a cause of action accrues when the
plaintiff knows or has reason to know of the injury which is the basis of the action); cf.
Richmond v. Clinton Cnty., 338 F.3d 844, 847 (8th Cir. 2003) (discussing accrual rule
under state law). The plaintiff did not file the instant complaint in a timely manner. The
plaintiff alleges that he sustained an injury on January 24, 2011, but he waited until June
25, 2014 to file his civil rights action. Accordingly, the applicable statute of limitations
bars the plaintiff’s claim. See White v. Kautzky, 494 F.3d 677, 681 (8th Cir. 2007)
(applying Iowa’s two-year statute of limitation); Myers, 960 F.2d at 751 (concluding that
a district court may dismiss an action if an affirmative defense exists, that is, the applicable
statute of limitations has run).
Alternatively, the plaintiff’s allegations appear to fail as a matter of law. Although
it is true that a parent has a fundamental liberty interest in maintaining a relationship with
his or her child, that interest is viewed in light of the interests of the child. The plaintiff
admits that he is a parent that has been convicted of murder in the first degree of his
children’s other parent. See State v. Walker, 2007 Iowa App. LEXIS 863 (Iowa Ct. App.
2007). The plaintiff cites provisions of Iowa Code section 598.41B that guide a State court
when it determines whether visitation would be in the best interests of a child, but he
ignores subpart 3 of Iowa Code section 598.41B, which prohibits a child of a parent who
has been convicted of murder in the first degree of the child’s other parent from visiting
the parent who has been convicted. The plaintiff points to no order by a State court that
determined whether he should be awarded visitation. And, the record indicates that the
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defendants acted pursuant to Iowa Department of Corrections policy OP-MTV-01 and OPMTV-03, not a State court order. See Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004)
(“Officials are not liable for bad guesses in gray areas; they are liable for transgressing
bright lines.”); Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (holding that the
failure to follow state law or policy does not in and of itself state a constitutional claim)
(citing Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996)). Further, restrictions
on prison visitation by unrelated children and children of inmates who have lost their
parental rights have been upheld. See Overton v. Bazzetta, 539 U.S. 126, 132-33 (2003).
Lastly, aside from failing to seek a State court order that awards him visitation, it is
apparent that the plaintiff has not informally sought relief, utilized the grievance procedure
available to him or contacted the Office of Victim and Restorative Justice Programs since
early 2011.
In light of the foregoing, the plaintiff’s complaint shall be dismissed as frivolous or
for failing to state a claim upon which relief can be granted. Because the court deems it
appropriate to dismiss the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), the dismissal
of this action shall count against the plaintiff for purposes of the three-dismissal rule set
forth in 28 U.S.C. § 1915(g). And, having determined that relief is unavailable to the
plaintiff, the plaintiff’s motion for temporary restraining order or preliminary injunction
and for appointment of counsel (docket no. 4) shall be denied.
IT IS THEREFORE ORDERED:
(1) The plaintiff’s application to proceed in forma pauperis status (docket no. 1) is
granted.
(2) The clerk’s office is directed to file the complaint without the prepayment of the
filing fee.

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(3) The plaintiff is directed to submit an initial partial filing fee of $53.70 by no
later than October 8, 2014. If necessary, the plaintiff may request in a written
motion an extension of time to pay the initial partial filing fee.
(4) After the plaintiff pays the initial partial filing fee, the institution having custody
of the plaintiff is directed to collect and remit monthly payments in the manner set
forth in 28 U.S.C. § 1915(b)(2). Until the $350.00 filing fee is paid in full, the
plaintiff is obligated to pay and the institution having custody of him is obligated to
forward 20 percent of the preceding month’s income credited to his account each
time the amount in the account exceeds $10.00.
(5) The clerk’s office is directed to send a copy of this order and the notice of
collection of filing fee to the appropriate official at the place where the plaintiff is
an inmate.
(6) The plaintiff’s 42 U.S.C. § 1983 action is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B).
(7) The dismissal of the instant action counts against the plaintiff for purposes of the
three-dismissal rule set forth in 28 U.S.C. § 1915(g).
(8) The plaintiff’s motion for temporary restraining order or preliminary injunction
and for appointment of counsel (docket no. 4) is denied.
DATED this 18th day of September, 2014.

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TO:

WARDEN/ADMINISTRATOR
Anamosa State Penitentiary, Anamosa, Iowa
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Maurice Walker, #6046229, an inmate at your

facility, filed the following lawsuit in the United States District Court for the Northern
District of Iowa: Walker v. Roche et al., Case No. C14-0082-LRR. The inmate was
granted in forma pauperis status pursuant to 28 U.S.C. § 1915(b), which requires partial
payments of the $350.00 filing fee. Based on the inmate’s account information, the court
has assessed an initial partial filing fee of $53.70, which the inmate must pay now to the
clerk of court. 28 U.S.C. § 1915(b)(1).
After payment of the initial partial filing fee, the [inmate] shall
be required to make monthly payments of 20 percent of the
preceding month’s income credited to [his] account. The
agency having custody of the [inmate] shall forward payments
from [his] account to the clerk of the court each time the
amount in the account exceeds $10 until the filing fees are
paid.
28 U.S.C. § 1915(b)(2). Therefore, you must monitor the account and send payments to
the clerk of court according to the system provided in 28 U.S.C. § 1915(b)(2), that is, you
should begin making monthly payments of 20 percent of the preceding month’s income
credited to the inmate’s account.
Please make the appropriate arrangements to have these fees deducted and sent to
the court as instructed.
Deputy
_______________________ Clerk
Robert L. Phelps
U.S. District Court Clerk
Northern District of Iowa