Larsen v. Shubott, et al

Filing 2

INITIAL Review Order Dismissing Case as Frivolous: 1 Plaintiff's Application to proceed in forma pauperis is granted. Clerk of Court shall file the complaint for the purpose of making a record. Plaintiff need not submit an initial partial fil ing fee. 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 order and the notice of collecti on of filing fee to the appropriate official at the place where the plaintiff is an inmate. Plaintiff's 42 U.S.C. Sec. 1983 action is dismissed. The dismissal of the instant action counts against the plaintiff for purposes of the three-dismissal rule set forth in 28 U.S.C. Sec. 1915(g). Signed by Chief Judge Linda R Reade on 10/05/11. (Copy w/NEF and Appeal Packet to Plf; Dubuque County Jail; CRF) (ksy) Modified on 10/5/2011 (ksy).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
DAVID LAWRENCE LARSEN,
Plaintiff,

No. C11-1037-LRR

vs.
JUDGE SHUBOTT, JUDGE MONICA
ACKLEY, JUDGE BITTER,

INITIAL REVIEW ORDER

Defendants.
____________________________
This matter is before the court on the plaintiff’s complaint under 42 U.S.C. § 1983
(docket no. 1). The plaintiff submitted such complaint in September and the clerk’s office
filed the plaintiff’s civil rights action on October 3, 2011.1
I. IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915
The plaintiff submitted an application to proceed in forma pauperis in a separate
case, and, from the record, it appears that he wants the court to rely on it for purposes of
commencing the instant action. See Larsen v. Department of Corrections, Case #: 2:11-cv01027-LRR (N.D. Iowa 201_). Based on the plaintiff’s application to proceed in forma
pauperis, 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.

1

The plaintiff declares that he wants to commence three separate actions.
Nonetheless, the court finds that the issues are related and the events he complains about
arise from the same set of circumstances. Therefore, the court will review the merits of
the claims against the three named defendants as one action.

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
statements, the court finds that the plaintiff is unable to pay an initial partial filing fee. Id.
Nevertheless, 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
2

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,
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. Jurisdiction appears to be predicated on 28 U.S.C. § 1343. Under 28
U.S.C. § 1391(b), venue appears proper as the defendants are located in this district and
the events giving rise to the instant action occurred in this district.
In his complaint, the plaintiff makes clear that he is complaining about events that
occurred when the defendants presided over a criminal case that the State of Iowa brought
against the plaintiff. As relief, the plaintiff states that he wants: (1) a public apology
3

and/or the judge to lose his or her job or to be punished; (2) immediate release or a change
of venue; and (3) compensation.
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,
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

4

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, it is clear that the plaintiff does not state a viable claim
under 42 U.S.C. § 1983. The plaintiff’s allegations fail 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 the defendants are entitled to
absolute immunity. Accordingly, the plaintiff’s action against the defendants 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).
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.
(3) The plaintiff need not submit an initial partial filing fee. Nevertheless, 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

(4) 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.
(5) The plaintiff’s 42 U.S.C. § 1983 action is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B).
(6) 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 5th day of October, 2011.

6

TO:

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

filed the following lawsuit in the United States District Court for the Northern District of
Iowa: Larsen v. Shubott, et al., Case No. C11-1037-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 not
assessed an initial partial filing fee. 28 U.S.C. § 1915(b)(1). Nevertheless,
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