Parker v. Dubuque, City of et al

Filing 2

MEMORANDUM Opinion and Order: Pro Se Application to proceed in forma pauperis is granted. Clerk of Court shall file the complaint without the prepayment of fees. Prisoner Richard Leroy Parker pay Initial Filing Fee in the Amount of $ 124.84 by 8 /16/2021. After initial review, complaint is dismissed without prejudice. Signed by Chief Judge Leonard T Strand on 7/16/2021. (Copy w/NEF and appeal packet mailed to plaintiff; Copy w/NEF and Notice of Collection of Filing Fee mailed to Canaan USP) (jag)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
RICHARD LEROY PARKER,
Plaintiff,

No. C19-1020-LTS

vs.
CITY OF DUBUQUE, COUNTY OF
DUBUQUE, DUBUQUE POLICE
DEPARTMENT, DUBUQUE CHIEF
OF POLICE, SCOTT ENGLEMAN,
CAPTAIN RADLOFF, DAVID
BRENDAN WELSH, BRUCE
DEUTSCH, CHAD LEITZEN, J.
SLIGHT, DAVID RANDALL,
BRANDON GUDENKAUF, JOHN
DOE, WENDY LYONS, KELLY
FRANCOIS and TIMOTHY J.
GALLAGHER,

MEMORANDUM
OPINION AND ORDER

Defendants.
___________________________
This matter is before me pursuant to plaintiff Richard Parker’s pro se motion to
proceed in forma pauperis (Doc. 1) and pro se 42 U.S.C. § 1983 complaint (Doc. 1-1).
In his complaint, Parker alleges a variety of constitutional violations arising from his
arrest and detention.
I.

MOTION TO PROCEED INFORMA PAUPERIS

Parker did not submit the statutory filing fee. See 28 U.S.C. § 1914(a) (requiring
filing fee). In order for a court to authorize the commencement of an action without the
prepayment of the filing fee, a person must submit an affidavit that includes a statement
of all the assets the person possesses. See 28 U.S.C. § 1915(a)(1). In addition, a prisoner

must submit a certified copy of the trust fund account statement (or institutional
equivalent) for the 6-month period immediately preceding the filing of the complaint,
obtained from the appropriate official of each prison at which the prisoner was or is
confined. See 28 U.S.C. § 1915(a)(2).
Parker, an inmate at Canaan USP in Waymart, Pennsylvania, has submitted
documents (Doc. 1) that substantially comply with the requirements set out above.
Because it is clear that he does not have the assets necessary to pay the filing fee, his
motion to proceed in forma pauperis is granted. However, even though the court deems
it appropriate to grant a prisoner-plaintiff in forma pauperis status, that 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).
Parker must pay an initial partial filing fee in the amount of twenty 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 the
documents that Parker submitted, I find that the initial partial filing fee is $124.84. See
Doc. 1 at 3. Parker shall submit $124.84 by no later than 30 days from the date of this
order. If the court does not receive payment by this deadline, this action shall be
dismissed pursuant to Fed. R. Civ. P. 41(b) (permitting dismissal when a plaintiff either
fails to prosecute or fails to respond to an order of the court); Hutchins v. A.G. Edwards
& Sons, 116 F.3d 1256, 1259–60 (8th Cir. 1997) (explaining court’s power to dismiss
an action). If necessary, Parker may request in a written motion an extension of time to
pay the initial partial filing fee.
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In addition to the initial partial filing fee, a prisoner-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 Parker pays in full the initial partial filing fee,
the remaining installments shall be collected by the institution having custody of the
plaintiff. 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 Parker is an inmate.
II.

INITIAL REVIEW STANDARD

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); see also Stone v. Harry,
364 F.3d 912, 914 (8th Cir. 2004). However, the Court may dismiss an in forma
pauperis complaint if it is frivolous, malicious, fails to state a claim upon which relief
can be granted, or seeks monetary relief against a defendant that is immune from a
monetary judgment.

28 U.S.C. § 1915(e)(2); see also 28 U.S.C. § 1915A(b)(1)

(requiring the Court to do an initial review of prisoner complaints).
In reviewing a prisoner or in forma pauperis complaint, unless the facts alleged
are clearly baseless, they must be weighed in favor of the plaintiff. See Denton v.
Hernandez, 504 U.S. 25, 32-33 (1992).

Pro se complaints, however, must allege

sufficient facts to support the plaintiff’s claim. Stone, 364 F.3d at 914. A claim is
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“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). In
determining whether a complaint fails to state a claim pursuant to § 1915(e)(2), courts
generally rely on the standards articulated pursuant to Fed. R. Civ. P. 12(b)(6). Mitchell
v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997); see also Atkinson v. Bohn, 91 F.3d
1127, 1128–29 (8th Cir. 1996) (applying Rule 12(b)(6) standard to a dismissal under 28
U.S.C. § 1915(e)(2). 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). Pursuant to § 1915(e)(2), a court
may review the complaint and dismiss sua sponte those claims that fail “to raise a right
to relief above the speculative level,” Id. at 555., or that are premised on meritless legal
theories or clearly lack any factual basis, see Neitzke, 490 U.S. at 325.
III.
A.

INITIAL REVIEW ANALYSIS

§ 1983 Standard
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 . . .

§ 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. See 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
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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
(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. See West v. Atkins, 487 U.S. 42, 48 (1988).
B.

Parker’s Claims
Parker is serving a sentence of life imprisonment pursuant to a judgment in this

court. See CR17-1034-LRR, Docs. 187, 205. He raises eight “Counts” related to the
investigation and series of arrests that proceeded his federal criminal case. Specifically,
Parker alleges: (1) defendants searched Parker’s residence without probable cause on
April 17, 2017;1 (2) defendants unconstitutionally revoked Parker’s state parole on May
4, 2017; (3) defendants unconstitutionally detained Parker prior to his trial; (4) defendants
conspired to violate Parker’s rights by conducting the search at issue in Count 1; (5) the
municipal defendants had a policy or custom that resulted in the search described in Count
1; (6) the municipal defendants conspired to revoke Parker’s parole as described in Count
2; (7) Parker’s right to a speedy trial was violated; and (8) defendants maliciously
prosecuted Parker. All of these claims fail for the two reasons discussed below.

1

United States District Judge Linda Reade ultimately suppressed the evidence recovered as a
result of that search, finding the warrant was not supported by probable cause. See CR17-1034LRR, Doc. 94 at 17 (adopting a Report and Recommendation).

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1.

Time Barred Counts

Parker mailed his complaint to this court on August 9, 2019. 42 U.S.C. § 1983
claims are governed by the relevant state’s personal injury statute of limitations. Wycoff
v. Menke, 773 F.2d 983, 984 (8th Cir. 1985). In Iowa, § 1983 actions are subject to a
two-year statute-of-limitations. See Iowa Code § 614.1(2). The search at issue in Counts
1, 4 and 5 occurred on April 17, 2017, more than two years before Parker filed this case.
As will be discussed in more detail below, in Heck v. Humphrey, 512 U.S. 477
(1994), the Supreme Court stated that:
when a state prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence; if it would, the complaint
must be dismissed unless the plaintiff can demonstrate that the conviction
or sentence has already been invalidated.
Id., at 487. If the conviction has been invalidated, the statute of limitations does not start
to run until the invalidation happens. Id. If Heck applied to illegal search and seizure
claims, the statute of limitations would start to run at a date later than the date of the
search. However, in a footnote in Heck, the Supreme Court foreclosed that possibility:
a suit for damages attributable to an allegedly unreasonable search may lie
even if the challenged search produced evidence that was introduced in a
state criminal trial resulting in the § 1983 plaintiff's still-outstanding
conviction. Because of doctrines like independent source and inevitable
discovery, and especially harmless error, such a § 1983 action, even if
successful, would not necessarily imply that the plaintiff's conviction was
unlawful. In order to recover compensatory damages, however, the § 1983
plaintiff must prove not only that the search was unlawful, but that it caused
him actual, compensable injury, which, we hold today, does not encompass
the “injury” of being convicted and imprisoned (until his conviction has
been overturned).
Id., at n.7. Thus, Parker’s illegal search and seizure claims accrued on April 17, 2017,
and are time-barred. See, e.g., Moore v. Sims, 200 F.3d 1170, 1171–72 (8th Cir.2000)
(noting n.7 and concluding unlawful search and seizure claims are not barred by Heck);
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Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir. 1983) (cause of action for illegal
search or seizure accrues when act occurs).
The same is true regarding Counts 2, 3 and 6. Parker’s parole was revoked on
May 4, 2017. Whatever the exact nature of his constitutional claims relating to his
incarceration prior to being federally indicted on August 24, 2017, they are time barred.
See Wallace v. Kato, 549 U.S. 384, 397 (2007), stating:
We hold that the statute of limitations upon a § 1983 claim seeking damages
for a false arrest in violation of the Fourth Amendment, where the arrest is
followed by criminal proceedings, begins to run at the time the claimant
becomes detained pursuant to legal process.
Based on Wallace, Parker’s claims accrued when he was taken into custody. By his own
admission, that occurred more than two years before he mailed the present complaint.
Counts 2, 3 and 6, like Counts 1, 4 and 5, are time barred.2
2.

Heck Barred Claims

As discussed above, Heck bars claims that would necessarily call into question the
validity of a plaintiff’s incarceration.

Even when a plaintiff demands only money

damages, he cannot bring a non-habeas civil action that would call into question the
lawfulness of his detention. Sheldon v. Hundley, 83 F.3d 231, 233 (8th Cir. 1996).
Although Judge Reade suppressed the search of Parker’s residence, he was ultimately
convicted of two counts of distribution of heroin near a protected location on or about
April 17, 2017. See CR17-1034-LRR, Docs. 2, 187. That conviction has not been
invalidated. See United States v. Parker, 993 F.3d 595 (8th Cir. 2021). Thus, to the
extent that in Count 3 Parker is challenging his pretrial detention in CR17-1034-LRR,
along with his Count 7 allegation that his speedy trial rights were violated and his Count
8 allegation that he was the victim of malicious prosecution, those counts are Heck
2

Because Count 3 is vague as to whether it refers to Parker’s incarceration before or after his
federal indictment, I will also discuss it in relation to Heck.

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barred.3 See Heck, 512 U.S. at 484 (“The common-law cause of action for malicious
prosecution provides the closest analogy to claims of the type considered here…”).
IV.

CONCLUSION

For the reasons set forth herein:
1.

Parker’s motion to proceed in forma pauperis (Doc. 1) is granted.

2.

The Clerk’s office is directed to file the complaint (Doc. 1-1) without the
prepayment of fees.

3.

Parker is directed to submit an initial partial filing of $124.84 by no later
than 30 days from the date of this order. If necessary, he may request in a
written motion an extension of time to pay the initial partial filing fee.
Additionally, after he pays the initial partial filing fee, the institution having
custody of him 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, he 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.

4.

The Clerk’s office is directed to send a copy of this order and the notice of
collection of the filing fee to the appropriate official at the place where
Parker is an inmate.

3

By its terms, Heck applies to state court prisoners. However, subsequent case law has applied
Heck both to federal prisoners bringing § 1983 claims and prisoners filing claims under Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). See e.g.
Hilario v. Marianna, 561 F. App’x 821, 822 (11th Cir. 2014) (unpublished); Lora-Pena v.
F.B.I., 529 F.3d 503, 505, n.2 (3d Cir. 2008) (observing that § 1983 and Bivens claims brought
by a federal prisoner could be Heck barred, although they were not in that case); Kaplan v.
Miller, 653 F. App’x 87, 90 (3d Cir. 2016) (applying Heck to a federal prisoner raising § 1983
claims).

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5.

For the reasons set out above, Parker’s claims are denied for failure to state
a claim and this case is dismissed. Because this dismissal is based in part
on Heck, it is without prejudice. See Sheldon, 83 F.3d at 234.
IT IS SO ORDERED.
DATED this 16th day of July, 2021.

__________________________
Leonard T. Strand, Chief Judge

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TO:

WARDEN/ADMINISTRATOR
USP Canaan, Waymart, Pennsylvania.
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Richard Parker, No. 07178-029, an inmate at

your facility, filed the following lawsuit in the United States District Court for the
Northern District of Iowa: Parker v. City of Dubuque, et.al., Case No. C19-1020-LTS.
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 statements,
the court has assessed an initial partial filing fee of $124.84, which the inmate must pay
now to the Clerk of Court. See 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,
after the inmate pays the initial partial filing fee of $124.84, 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. If the inmate has been relocated to a different institution, please
forward this Order and Notice to the institution having custody of him. Any institution
having custody of the above-named inmate shall collect and remit the filing fee as set
forth above.

/s/ jag
_______________________
Robert L. Phelps
U.S. District Court Clerk
Northern District of Iowa
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