High Bear et al v. Year et al
Filing
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ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by William High Bear, Shelley High Bear. The plaintiffs are directed to submit monthly payments of at least $5.00 until the $350.00 filing fee is paid. The clerks offi ce is directed to file the plaintiffs complaint (docket no. 1-1)without the prepayment of the filing fee. The plaintiffs 42 U.S.C. § 1983 action is dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2). The clerks office is directed to enter judgment in favor of the defendants. Signed by Judge Mark W Bennett on 2/1/16. (copy w/nef mailed to pro se plaintiffs; copy to CR Financial) (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
SHELLEY RAE HIGH BEAR,
WILLIAM RUFUS HIGH BEAR,
Plaintiffs,
No. C15-4051-MWB
vs.
ORDER
MAGISTRATE JUDGE FRED YEAR,
OSCEOLA COUNTY ATTORNEY
ROBERT HANSEN,
Defendants.
____________________________
I. INTRODUCTION
The matter before the court is Plaintiff Shelley High Bear’s application to proceed
in forma pauperis (docket no. 1). Plaintiff Shelley High Bear filed such application on
June 17, 2015. In addition to Plaintiff Shelley High Bear’s application to proceed in forma
pauperis, Plaintiff Shelley High Bear and Plaintiff William High Bear submitted a
complaint under 42 U.S.C. § 1983 (docket no. 1-1).
II. IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915
A court may permit a party to proceed with litigation in forma pauperis, that is,
“without prepayment of fees or security therefor,” if the party submits an affidavit that
shows the inability “to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1).
When ruling on a 28 U.S.C. § 1915(a)(1) application, three general principles apply.
First, proceeding in forma pauperis in a civil case is a privilege or favor granted by the
government. Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506
U.S. 194, 198 (1993). Second, the statute reads that the court “may authorize the
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commencement” of an action. 28 U.S.C. § 1915(a)(1). The grant, denial, or other
decision concerning an in forma pauperis application requires the court to exercise
discretion. Denton v. Hernandez, 504 U.S. 25, 31 (1992); see also Lee v. McDonald’s
Corp., 231 F.3d 456, 458 (8th Cir. 2000) (explaining the purpose of 28 U.S.C. § 1915
and stating the decision of whether to grant or deny in forma pauperis status under 28
U.S.C. § 1915 is discretionary). Third, the ability to pay does not require that plaintiffs
contribute their “last dollar” or “make themselves and their dependents wholly destitute.”
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948).
Neither Plaintiff Shelley High Bear nor Plaintiff William High Bear submitted 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. 28 U.S.C. § 1915(a)(1). Plaintiff Shelley High Bear submitted an application
to proceed in forma pauperis, which she signed. Plaintiff William High Bear, however,
did not sign the application to proceed in forma pauperis. Nonetheless, Plaintiff Shelley
High Bear makes several statements regarding their financial situation. Despite Plaintiff
William High Bear’s failure to sign the application to proceed in forma pauperis or submit
an independent application to proceed in forma pauperis, the court concludes that both of
the plaintiffs are indigent. Thus, in forma pauperis status shall be granted to the plaintiffs.
See generally 28 U.S.C. § 1915. The clerk’s office shall be directed to file the complaint
without the prepayment of the filing fee.
Although it agrees that the granting of in forma pauperis status is appropriate in this
case, the court finds that requiring the plaintiffs to submit partial payments or installment
payments of the filing fee is permissible and desirable.
The ordering of a partial payment or an installment payment
for court fees fits within the [language of 28 U.S.C. § 1915.
Subsection (a) of 28 U.S.C. § 1915] does not say that upon
granting in forma pauper status, court fees need not be paid or
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that they are remitted or otherwise waived. Instead,
[subsection (a)] merely authorizes commencement ‘without
prepayment’ if the applicant ‘is unable to pay such fees.’ This
conveys the sense that the court may authorize the filing of an
action without prepayment and look to cash flow and assets in
order to secure post-payment.1
White ex rel. Diggs v. Barnhart, 2002 U.S. Dist. LEXIS 14528, *5, 2002 WL 1760980
(M.D. N.C. 2002). Based on the statements that they made, the plaintiffs shall submit
monthly payments of at least $5.00 until the $350.00 filing fee is paid. Cf. 28 U.S.C. §
1915(b)(2).
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
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Prior to the enactment of the [PLRA], courts had, in large part, determined that
they had the discretion to require partial payment of the filing fees by prisoners. Byran
v. Johnson, 821 F.2d 455 (7th Cir. 1987) (collecting cases). Partial payment was said to
help ensure that prisoners had an economic incentive to police their own actions, just as
the non-imprisoned public must do. This rationale applies to all members of the public,
in all their diverse economic situations. . . . With the enactment of the [PLRA], Congress
now requires partial payment of the filing fees by prisoners and has established a uniform
collection methodology for both prepayment and post–payment of the fees. See 28 U.S.C.
§ 1915(b). There has been some thought that, if not constitutional law, then at least
elementary fairness requires that all parties applying for [in forma pauperis] status be
subject to possible partial payment of the filing fees, and not just prisoners. See Byran,
821 F.2d at 459 . . . .
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(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).
IV. COMPLAINT
The plaintiffs, proceeding pro se, submitted a complaint under 42 U.S.C. § 1983
to redress issues that are related to proceedings that occurred in the Iowa District Court
for Osceola County. Jurisdiction appears to be predicated on 28 U.S.C. § 1343. Under
28 U.S.C. § 1391(b), venue appears to be proper as the defendants are located in this
district and the events giving rise to the instant action occurred in this district.
The statement of claim portion of the complaint is as follows:
Judge Fred Year ordered William High Bear to enroll in
Batterer’s Education under DOC, the classes cost around
$900.00, and last for 6 months, knowing that William does not
have income, nor is a resident of Iowa. Fred Year would not
lift the no contact order, and he said he wouldn’t until William
completed the course. This he knew was impossible for
William to fulfill, and did not make any accommodation to do
so. Robert Hansen did not respond or ask the judge to make
provisions for William to fulfill the order, or dismiss the no
contact order.
Regarding what specific constitutional provision the defendants allegedly violated, the
plaintiffs state:
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Civil rights to be married, failure of due process to
accommodate impoverished to be able to fulfill court orders.
Harassment, false imprisonment continuous in South Dakota,
for 3 violations of no contact order, as SD claims they can
arrest and hold William in custody for no contact order
violations from Iowa. I had no response for the 4 letters I sent
to the court asking the order be lifted. Dated 6-16-2014, 7-022014, 7-28-2014, 5-1-2015.
As relief, the plaintiffs state that they want the court to:
override the judgment made by Fred Year, repeal the no
contact order, also the requirement to attend Batterer’s
Education. Award both plaintiffs $5,000,000.00 each for
undue harassment and emotional distress.
V. 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
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
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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. Plaintiffs’ Claims
Given the facts that are alleged in the complaint, the court concludes that the
plaintiffs assertions do not give rise to a viable claim under 42 U.S.C. § 1983. As to the
specific nature of the relief that is requested, the court lacks the authority to review
decisions that the Iowa District Court for Osceola made. See State v. High Bear, Case No.
FECR005921 (Osceola Cnty. Dist. Ct. 2015); State v. High Bear, Case No. SMSM012679
(Osceola Cnty. Dist. Ct. 2014).2
The court is precluded from interfering in the
interworkings of a state court in criminal matters because the record does not indicate any
improper conduct by the prosecution. See Sprint Communs., Inc. v. Jacobs, ___ U.S.
___, ___, 134 S. Ct. 584, 591 (2013) (explaining that Younger v. Harris, 401 U.S. 37
(1971), precludes a court from intruding into ongoing state criminal prosecutions); Zanders
v. Swanson, 573 F.3d 591, 593-95 (8th Cir. 2009) (determining that district court properly
abstained from hearing claim because there was no showing of bad faith or other
extraordinary circumstances); Norwood v. Dickey, 409 F.3d 901, 903 (8th Cir. 2005)
(listing factors to be considered).
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Iowa state court civil and criminal records may be accessed online:
http://www.iowacourts.gov/For_the_Public/Court_Services/Docket_Records_Search/in
dex.asp. See Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (addressing
a court’s ability to take judicial notice of public records).
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Further, none of the other defendants are subject to suit. 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 (1967); Whisman v. Rinehart, 119 F.3d 1303, 1309 (8th
Cir. 1997); Callahan v. Rendlen, 806 F.2d 795, 796 (8th Cir. 1996).
Fred Year
performed as a judge. Accordingly, the plaintiffs’ action against him shall be dismissed
for failing to state a claim upon which relief can be granted. A prosecutor is also immune
from civil rights claims that are based on actions taken in the performance of his or her
prosecutorial duties. See Burns v. Reed, 500 U.S. 478, 486 (1991) (quoting Imbler v.
Pachtman, 424 U.S. 409, 430-31 (1976)); Patterson v. Von Riesen, 999 F.2d 1235, 1237
(8th Cir. 1993); Snelling v. Westhof, 972 F.2d 199, 200 (8th Cir. 1992). Robert Hansen
presented the State’s case, and his conduct is intimately associated with the judicial phase
of the criminal proceedings. Accordingly, the plaintiffs’ action against Robert Hansen
shall be dismissed for failing to state a claim upon which relief can be granted.
VI. CONCLUSION
In light of the foregoing, the plaintiffs’ complaint shall be dismissed as frivolous or
for failing to state a claim upon which relief can be granted. The clerk’s office shall be
directed to enter judgment in favor of the defendants.
IT IS THEREFORE ORDERED:
(1) The plaintiffs’ application to proceed in forma pauperis (docket no. 1) is
granted.
(2) The plaintiffs are directed to submit monthly payments of at least $5.00 until the
$350.00 filing fee is paid.
(3) The clerk’s office is directed to file the plaintiffs’ complaint (docket no. 1-1)
without the prepayment of the filing fee.
(4) The plaintiffs’ 42 U.S.C. § 1983 action is dismissed with prejudice pursuant to
28 U.S.C. § 1915(e)(2).
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(5) The clerk’s office is directed to enter judgment in favor of the defendants.
DATED this 1st day of February, 2016.
__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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