Castillo-Alvarez v. Krukow

Filing 15

ORDER - Plaintiff Juan Humberto Castillo-Alvarez is directed to immediately submit an initial appellate partial fee of $35.00 to the clerk's office. See text of Order for details. The Plaintiff is permitted to proceed in forma paup eris. The Plaintiff is not required to pay the $350.00 district court filing fee. Plaintiff's 42 USC Section 1983 action is dismissed with prejudice pursuant to 28 USC Section 1915(e)(2)(B). Signed by Judge Mark W Bennett on 11/18/14. (copy w/nef mailed to plaintiff and Warden/Administrator at Stillwater Correctional Facility; copy to CR Financial) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

JUAN HUMBERTO CASTILLOALVAREZ,
Plaintiff,

No. C14-4029-MWB

vs.
ORDER

RANDY W. KRUKOW,
Defendant.
____________________________
I. INTRODUCTION

This matter appears before the court on the remand (docket nos. 12 & 13) and the
mandate (docket no. 14) from the Eighth Circuit Court of Appeals. Despite the fact that
the district court necessarily had to determine whether the plaintiff stated a claim upon
which relief could be granted before concluding that the named defendant was entitled to
prosecutorial immunity, see Castillo-Alvarez v. Haley, No. 10-cv-04263, 2011 WL 22803
(D. Minn. Feb. 9, 2011) (making clear that state prosecutors are only immune from civil
rights claims that are based on actions taken in the performance of their prosecutorial
duties), and the fact that the district court found that the dismissal of the plaintiff’s action
constituted a strike for purposes of 28 U.S.C. § 1915(g), see Castillo-Alvarez v. Haley,
No. 10-cv-04263, 2011 WL 839391 (D. Minn. Mar. 7, 2011) (“The dismissal of this
action is counted as a “strike” against Plaintiff for purposes of 28 U.S.C. § 1915(g).”),
the Eighth Circuit Court of Appeals concluded that Haley did not constitute a strike. It
also determined that the plaintiff only has two strikes after reviewing Castillo-Alvarez v.
Krukow, No. 11-cv-04067 (N.D. Iowa Dec. 6, 2011) and Castillo-Alvarez v. State of Iowa,
No. 10-cv-04085 (N.D. Iowa Mar. 31, 2011), granted the plaintiff in forma pauperis status

and directed the court to conduct further proceedings, including but not limited to those
related to the collection of the appellate filing fees. Consistent with the Eighth Circuit
Court of Appeals’ remand, the court will address the appellate court filing fees and the
district court filing fees, and, then, it will address the merits of the plaintiff’s complaint.
II. IN FORMA PAUPERIS STATUS AND RELATED FEES
The Eighth Circuit Court of Appeals granted the plaintiff in forma pauperis status
for appellate purposes. With respect to the assessment and collection of the appellate filing
fees, the plaintiff failed to submit an additional certificate of inmate account. In light of
such failure, the plaintiff is assessed an initial appellate partial fee of $35.00, which he
shall be directed to immediately submit to the clerk’s office. See Henderson v. Norris,
129 F.3d 481, 484-85 (8th Cir. 1997); see also 28 U.S.C. § 1915(b)(1). In addition, the
plaintiff shall be directed to submit monthly payments of 20 percent of the preceding
month’s income credited to his inmate account until the $505.00 appeal fees are paid in
full. 28 U.S.C. § 1915(b)(2). The agency having custody of the plaintiff shall be directed
to forward payments from the plaintiff’s inmate account to the clerk’s office each time the
amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The clerk’s office shall
be 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.
Concerning the $350.00 district court filing fee, it is clear that the plaintiff is unable
to pay it because he is indigent. Further, the court declines to require the plaintiff to pay
any portion of it on an installment basis for several reasons. First, the court previously
dismissed without prejudice the plaintiff’s action because it mistakenly relied on 28 U.S.C.
§ 1915(g). Second, the court considered the nature of the plaintiff’s action and concluded
that, because the plaintiff is merely attempting to litigate issues that have already been
litigated in prior suits and he is required to pay the filing fees associated with them, there
is no need to encumber the plaintiff’s prison account any further. Third, the plaintiff is
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already required to pay the $505.00 appellate court filing fees. Even though the court
noted in its prior order that the plaintiff’s complaint is clearly related to his previous
actions and the Eighth Circuit Court of Appeals could have reviewed the plaintiff’s case
and dismissed it as meritless, see 28 U.S.C. § 1915(e)(2)(B) (requiring a court to dismiss
a case where in forma pauperis status is granted and it becomes apparent that the action
or appeal is frivolous, malicious or fails to state a claim upon which relief can be granted);
Spirtas Co. v. Nautilus Ins. Co., 715 F.3d 667, 670-71 (8th Cir. 2013) (stating that
dismissal may be affirmed on any basis supported in the record), the Eighth Circuit Court
of Appeals did not do so. Consequently, the plaintiff shall be granted in forma pauperis
status, but he shall not be required to pay the $350.00 district court filing fee.
III. 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
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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).
IV. ANALYSIS
Because the court granted the plaintiff in forma pauperis status, it is required to
review the merits of the plaintiff’s complaint. 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. The plain language of the complaint and the documents that the plaintiff submitted
in his related cases indicate that the plaintiff is again suing Randy Krukow as a result of
being imprisoned in Clay County, Iowa and being extradited from Iowa to Minnesota. See
Castillo-Alvarez v. Krukow, No. 11-cv-04067 (N.D. Iowa Dec. 6, 2011); Castillo-Alvarez
v. State of Iowa, No. 10-cv-04085 (N.D. Iowa Mar. 31, 2011). Because the court already
addressed the plaintiff’s claims, the plaintiff is precluded from raising them again. See
Lundquist v. Rice Mem. Hosp., 238 F.3d 975, 977 (8th Cir. 2001) (setting forth factors
that must be considered when barring a claim); Robbins v. Dist. Ct. of Worth Cnty., 592
F.2d 1015, 1017-18 (8th Cir. 1979) (concluding that the principle of res judicata “operates
as a bar to the relitigation of constitutional issues actually raised as well as to constitutional
issues that could have been raised in a prior lawsuit if the second lawsuit concerns the
same operative nucleus of fact”); see also Castillo-Alvarez v. Krukow, No. 11-cv-04067
(N.D. Iowa Dec. 6, 2011) (explaining that res judicata prevented another review of the
claims). Accordingly, the instant action shall be dismissed with prejudice.
Alternatively, 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
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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
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).
It is clear from the record that the plaintiff did not file his action in a timely manner.
Indeed, the plaintiff waited at least three years after his cause of action accrued to seek
relief. Consequently, the applicable statute of limitations bars the plaintiff’s claims against
the defendant. See White v. Kautzky, 494 F.3d 677, 681 (8th Cir. 2007) (applying Iowa’s

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two-year statute of limitations); 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). Accordingly, the instant action shall be dismissed with prejudice.
In light of the foregoing, the plaintiff’s complaint shall be dismissed for failing to
state a claim upon which relief can be granted or because it is frivolous. 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 counts 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 is directed to immediately submit an initial appellate partial fee of
$35.00 to the clerk’s office. Additionally, the plaintiff is directed to submit
monthly payments of 20 percent of the preceding month’s income credited to his
inmate account until the $505.00 appeal fees are paid in full. The agency having
custody of the plaintiff is directed to forward payments from the plaintiff’s inmate
account to the clerk’s office each time the amount in the account exceeds $10.00.
28 U.S.C. § 1915(b)(2). 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.
(2) The plaintiff is permitted to proceed in forma pauperis. The plaintiff is not
required to pay the $350.00 district court filing fee.
(3) The plaintiff’s 42 U.S.C. § 1983 action is dismissed with prejudice pursuant to
28 U.S.C. § 1915(e)(2)(B).
(4) 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).

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IT IS SO ORDERED.
DATED this 18th day of November, 2014.

__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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TO:

WARDEN/ADMINISTRATOR
Stillwater Correctional Facility, Bayport, Minnesota
NOTICE OF COLLECTION OF FILING FEE

You are hereby given notice that Juan Humberto Castillo-Alvarez, #235086, an
inmate at your facility, filed an appeal in the United States District Court for the Northern
District of Iowa: Castillo-Alvarez v. Krukow, Case No. C14-4029-MWB. The inmate was
granted in forma pauperis status pursuant to 28 U.S.C. § 1915(b), which requires partial
payments of the $505.00 appellate fees. The United States District Court for the Northern
District of Iowa has assessed an initial partial filing fee of $35.00, which the inmate must
pay now to the Clerk of Court. 28 U.S.C. § 1915(b)(1); see also Henderson v. Norris,
129 F.3d 481, 484 (8th Cir. 1997).
After 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
Court each time the amount in the account exceeds $10 until the filing fees
are paid.
28 U.S.C. § 1915(b)(2). If the inmate currently does not have sufficient funds to pay the
initial partial filing fee, 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).
Please make the appropriate arrangements to have these fees deducted and sent to
the United States District Court for the Northern District of Iowa as required under the
statute.
/s/ djs, Deputy Clerk
_______________________
Robert L. Phelps
U.S. District Court Clerk
Northern District of Iowa