Dittmar v. Fautsch

Filing 2

INITIAL Review Order Dismissing Case: 1 Plaintiff's Application to proceed in forma pauperis is granted. Clerk of Court shall file the complaint without prepayment of the filing fee. Plaintiff is directed to submit an initial partial filing fee in the Amount of $ 7.48 by no later than 9/8/11. 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. Sec. 1915(b)(2). The clerk's office is directed to s end a copy of this order and the notice of collection of filing to the appropriate official at the place where the plaintiff is an inmate. Plaintiff's 42 U.S.C Sec. 1983 action is dismissed pursuant to 28 U.S.C. Sec. 1915(e)(2)(B). The dismissal of the instant action counts against the plaintiff for the purposes of the three-dismissal rule set forth in 28 U.S.C. Sec. 1915(g). Signed by Chief Judge Linda R Reade on 8/26/11. (Copy w/NEF to Plf; Dubuque County Jail; CRF) (ksy) (Main Document 2 replaced on 8/26/2011) (ksy).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
CODY KENZIE DITTMAR,
Plaintiff,

No. C11-1031-LRR

vs.
LAWRENCE FAUTSCH,

INITIAL REVIEW ORDER

Defendant.
____________________________
This matter is before the court on the plaintiff’s application to proceed in forma
pauperis (docket no. 1). The plaintiff filed such application on August 23, 2011. Along
with his application to proceed in forma pauperis, the plaintiff submitted a complaint under
42 U.S.C. § 1983.
I. IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915
Based on the plaintiff’s application, 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 $7.48. Id.
The plaintiff shall submit $7.48 by no later than September 8, 2011. 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.
II. STANDARD OF REVIEW
A pro se complaint must be liberally construed. See Hughes v. Rowe, 449 U.S. 5,
9, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 520, 92 S.
Ct. 594, 30 L. Ed. 2d 652 (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,
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112 S. Ct. 1728, 118 L. Ed. 2d 340 (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, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (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, 127 S. Ct. 1955, 167 L. Ed. 2d
929 (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 Dubuque County Jail in Dubuque, Iowa, the plaintiff,
proceeding pro se, submitted a complaint to redress issues that are related to criminal
proceedings. The plaintiff predicates jurisdiction on 28 U.S.C. § 1343. Under 28 U.S.C.
§ 1391(b), venue appears proper as the defendant is located in this district and the events
giving rise to the instant action occurred in this district.
In his complaint, the plaintiff states:
I got arrested for a 1st degree theft [charge and] a 3rd degree
burglary charge. A judge gave me a $15,000 bond. The next
day, my dad called Doug Potter (the bondsman) to post the
money. Within the time of 1-2 days, Doug Potter posted my
bond. Doug and my dad cam to the county jail with the order
to release me. The next thing they knew, Lawrence Fautsch
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raised the bond to $75,000 cash only, with no bond hearing or
no new charges. I had asked my lawyer, Brian Spennegal if
it was legal [and] he said yes, so I did around 6 months in
county after that.
As relief, the plaintiff states that he wants monetary compensation for the stress that he and
his family have experienced, for the time that he spent illegally in jail and for the violation
of his civil rights.
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, 98 S. Ct.
2018, 56 L. Ed. 2d 611 (1978). However, 42 U.S.C. § 1983 provides no substantive
rights. Albright v. Oliver, 510 U.S. 266, 271, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994);
Graham v. Conner, 490 U.S. 386, 393-94, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989);
Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S. Ct. 1905, 60 L. Ed.
2d 508 (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,

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490 U.S. at 393-94 (same); Maine v. Thiboutot, 448 U.S. 1, 4, 100 S. Ct. 2502, 65 L. Ed.
2d 555 (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, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988).
B. Plaintiff’s Claim
Based on the facts alleged against Lawrence Fautsch, it is clear that the plaintiff
does not state a viable claim under 42 U.S.C. § 1983. The plaintiff’s allegation fails as
a matter of law because a judge, performing judicial functions, enjoys absolute immunity
from 42 U.S.C. § 1983 liability. See Pierson v. Ray, 386 U.S. 547, 554-55, 87 S. Ct.
1213, 18 L. Ed. 2d 288 (1967); Whisman v. Rinehart, 119 F.3d 1303, 1309 (8th Cir.
1997); Callahan v. Rendlen, 806 F.2d 795, 796 (8th Cir. 1996). Here, it is clear that
Lawrence Fautsch performed as a judge. Accordingly, the plaintiff’s action against
Lawrence Fautsch shall be dismissed 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. 1915A(b)(1) and/or 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).

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 $7.48 by no later
than September 8, 2011. 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).
DATED this 26th day of August, 2011.

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TO:

WARDEN/ADMINISTRATOR
Dubuque County Jail, Dubuque, Iowa
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Cody Kenzie Dittmar, an inmate at your facility,

filed the following lawsuit in the United States District Court for the Northern District of
Iowa: Cody Kenzie Dittmar v. Lawrence Fautsch, Case No. C11-1031-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 $7.48, 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