Lillard v. Campbell et al

Filing 3

ORDER Dismissing this 42 U.S.C. § 1983 action filed by James Alandies Lillard pursuant to 28 U.S.C. § 1915(e)(2)(B) and/or 28 U.S.C. § 1915A(b)(1). 2 Application to proceed in forma pauperis is granted. Because the plaintiff alread y paid the required $400.00 filing fee, there is no need for the plaintiff to make payments on an installment basis. The clerks office is directed to enter judgment in favor of the defendants. 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). Signed by Judge Mark W Bennett on 5/19/2015. (copy w/nef and Appeal packet to non-ecf filer) (des)

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

JAMES ALANDIES LILLARD,
Plaintiff,

No. C14-4113-MWB

vs.
MARK CAMPBELL, SIOUX CITY
POLICE DEPARTMENT, HEATHER
ALBRECHT, JASON FLECKENSTEIN,
BRUCE HOKEL, MULLER,

ORDER

Defendants.
____________________________
This matter is before the court on the plaintiff’s application to proceed in forma
pauperis (docket no. 2). The plaintiff filed such application on December 3, 2014. Prior
to submitting his application to proceed in forma pauperis, the plaintiff submitted a
complaint under 42 U.S.C. § 1983 (docket no. 1), which the clerk’s office filed on
November 26, 2014.
I. IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915
Based on the plaintiff’s application to proceed in forma pauperis, the court
concludes that the plaintiff is indigent. Thus, in forma pauperis status shall be granted to
the plaintiff. See generally 28 U.S.C. § 1915. Because the plaintiff already paid the
required $400.00 filing fee, there is no need for the plaintiff to make payments on an
installment basis. See 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.”).

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 Woodbury County Jail in Sioux City, Iowa, the plaintiff,
proceeding pro se, submitted a complaint to redress issues that are related to his arrest and
confinement. 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 and the defendants are located in this district.
The statement of claim portion of the complaint is as follows:
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[Officers of the Sioux City Police Department, that is, Heather
Albrecht, Jason Fleckenstein, Bruce Hokel and Muller,] on or
about March 14, 2008, arrested and charged me with
attempted murder. I was wrongfully imprisoned from [March
14, 2008 to July 15, 2008]. I lost my job, place of residence
and [the ability to be with] my wife, and kids and family. I
have a new case that I’m currently fighting in the Northern
District of Iowa and Officer Heather Albrecht of the Sioux
City Police Department is still . . . harassing [me] and
slandering my name [by] bringing up that case in court, even
though I was acquitted of all charges. She is violating my 6th
Amendment.
As relief, the plaintiff states that he wants: (1) monetary compensation for pain and
suffering that he experienced as a result of losing his job and place of residence and for
false imprisonment from March 14, 2008 to July 15, 2008, and (2) Heather Albrecht to
be suspended and/or fired.
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
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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 (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 Claims
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
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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). The plaintiff did not file the instant complaint in a timely manner. The
plaintiff alleges that he sustained an injury in 2008, but he waited until November of 2014
to file his civil rights action. Accordingly, the applicable statute of limitations bars the
plaintiff’s claims. 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).
Further, to the extent that the plaintiff is complaining about events that are related
to United States v. Lillard, Case No. 5:14-cr-04071-DEO (N.D. Iowa 201_), the plaintiff’s
allegations fail as a matter of law.1 Nothing prevents law enforcement from inquiring into

1

Presumably, the plaintiff is referring to information included in the pretrial
services report, the testimony of Heather Albrecht during the detention hearing or other
information utilized by the court when ordering that the plaintiff be detained.
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and relying on an individual’s past, and, when litigating new criminal charges,
circumstances sometimes require the parties to cite to and rely on prior convictions,
charged conduct, dismissed charges and/or acquitted conduct. And, monetary damages
in relation to the plaintiff’s current confinement are unavailable because nothing indicates
that the plaintiff is being unlawfully detained. See Heck v. Humphrey, 512 U.S. 477, 48687 (1994) (clarifying that a cause of action for damages does not arise until “the conviction
or sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by an authorized state tribunal . . ., or called into question by the issuance of a writ
of habeas corpus”).
Additionally, the plaintiff did not assert that he was suing the defendants in their
individual capacities. Consequently, the plaintiff only sued the defendants in their official
capacities. See Alexander v. Hedback, 718 F.3d 762, 766 n.4 (8th Cir. 2013) (noting that
it is assumed that a plaintiff is suing a defendant only in his or her official capacity if a
plaintiff does not expressly and unambiguously state that a defendant is being sued in his
or her individual capacity). The plaintiff, however, does not assert that the alleged
conduct occurred pursuant to an unconstitutional policy or as a result of a failure to
properly supervise or train an employee. Given his assertions, the plaintiff’s action is
subject to dismissal. See id. at 766-67 (determining that plaintiff failed to set forth
sufficient facts to show a direct causal link between a municipal policy or custom and the
alleged constitutional deprivation).
Finally, to the extent that the plaintiff is attempting to assert state-law claims, the
court declines to exercise supplemental jurisdiction. See Brown v. Peterson, 156 F. App’x
870, 871 (8th Cir. 2005) (concluding decision to exercise supplemental jurisdiction over
state-law claim is discretionary); see also McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir.
1994) (indicating subsection (c) of 28 U.S.C. § 1367 clearly gives a court discretion to
reject jurisdiction over supplemental claims).

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V. CONCLUSION
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) and/or 28
U.S.C. § 1915A(b)(1), 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. 2) is
granted.
(2) The plaintiff’s 42 U.S.C. § 1983 action is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) and/or 28 U.S.C. § 1915A(b)(1).
(3) The clerk’s office is directed to enter judgment in favor of the defendants.
(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).
DATED this 19th day of May, 2015.

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

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