Wright v. The United States of America et al
Opinion and ORDER Dismissing Case, granting 4 Motion to proceed IFP. Signed by U. S. District Judge Roberto A. Lange on 5/14/12. (SLW)
MAY 14 2012
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
KEITH L. WRIGHT,
THE UNITED STATES OF AMERICA,
OSCAR RAMIREZ, Special Agent
F.B.I.; BRENDAN JOHNSON, United
States Attorney; ERIC KELDERMAN,
United States Attorney; MARK
MORENO, Magistrate Judge;
VERONICA L. DUFFY, Magistrate
Judge; U.S. MARSHAL SERVICE;
KAREN E. SCHREIER, Chief United
States District Judge; and CHARLES B.
KORNMANN, United States District
OPINION AND ORDER
GRANTING LEAVE TO
PROCEED IN FORMA
Keith L. Wright ("Wright") filed a pro se action listing himself and others who appear to
be family members as plaintiffs. Wright is serving a life prison sentence after a jury found him
guilty of seven counts ofaggravated sexual abuse ofa child. U.S. v. Wright, CR 06-30026, Doc.
86, 94. Wright named as Defendants the United States of America, United States Marshal's
Service, and individuals from United States Attorney's Office, federal judiciary, and Federal
Bureau ofInvestigation who were involved in aspects of his federal criminal case.
Wright's claims are set forth in what he calls a "Precipe for Summons," an "Injunctive
Order," a "Term ofAgreement," and a document that he sent to the Attorney General ofthe State
of South Dakota proclaiming that he is a sovereign with rights under the Treaty ofFort Laramie
of 1868. The gravamen of Wright's claims is the following:
Plaintiff is a Sovereign by Birth in the State of South [D]akota
and as a Right which the Tribe should have kno\vn to be a
violation ofthe - 1868 Pact - Under the "Bad-Man Clause" among
the Whitemen who do any wrong to any Sovereign Indian who
falls within the Tribal Law.
Doc. 1, p. 4 of 5. Wright has filed a motion to proceed without prepayment of fees and
declaration as welL Doc. 4; Doc. 5.
Wright was convicted and sentenced in CR 06-30026. The Court takes judicial notice
of the filings in that case. Such matters may be judicially noticed because they are "generally
known" within this Court's jurisdiction and "can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201.
In United States v. Wright, CR 06-30026, Wright was charged in an indictment and
superseding indictment with violations of 18 U.S.C. § § 1153, 2241(c), and 2246(2). United
States v. Wright, CR 06-30026, at Doc. 43. The Honorable Charles B. Kommann initially was
assigned to the case, but the case was transferred to the Honorable Chief Judge Karen E. Schreier
on October 27,2006. Id. at Doc. 58. Chief Judge Schreier conducted a jury trial, resulting in a
guilty verdict on seven counts of aggravated sexual abuse of a child. Id. at Doc. 86. On June 1,
2007, Wright was sentenced to a term oflife on each ofthe counts, to run concurrently, and Chief
Judge Schreier entered a Judgment and Commitment on June 5, 2007. ld. at Doc. 94. Wright
filed two notices of appeals to the United States Court of Appeals for the Eighth Circuit. Id. at
Doc. 96, 107.
On appeal, the United States Court ofAppeals for the Eighth Circuit considered various
claims that Wright made and affirmed the conviction. Id. at Doc. 111, 112. Wright petitioned
the Eighth Circuit for rehearing en bane, which petition was denied. Id. at Doc. 114. Wright
then petitioned the Supreme Court of the United States for writ of certiorari, which the Supreme
Court denied. Id. at Doc. 119, 123.
Wright then filed a post-conviction challenge in the district court to his conviction. Id.
at Doc. 122. That claim included a challenge to the jurisdiction over him. On June 25, 2009,
Chief Judge Schreier notified Wright that she would characterize the pleading as a claim for relief
under 28 U.S.C. § 2255. Id. at Doc. 124. Chief Judge Schreier notified Wright of the
ramifications that this characterization ofthe pleading would have on subsequent pleadings, and
directed Wright to withdraw or amend his motion to include all possible claims under § 2255.
Id. Wright did not amend or withdraw his motion.
Wright's § 2255 case proceeded as CIV 09-3017. This Court takes judicial notice ofthe
filings in that case as well under Rule 201 of the Federal Rules of Evidence. Chief Judge
Schreier assigned the § 2255 case to United States Magistrate Judge Veronica L. Duffy for a
report and recommendation.
On October 15, 2009, Judge Duffy issued her Report and
Wright v. United States, CIV 09-3017, Doc. 3.
The Report and
Recommendation included an analysis ofwhy Wright's claim thatthere was a lack ofjurisdiction
over him failed. Id. The Report and Recommendation recommended denial of Wright's § 2255
claim. Id. Chief Judge Schreier adopted the Report and Recommendation. Id. at Doc. 27.
Wright's current action challenges federal jurisdiction over him and invokes the bad men
clause of the Treaty of Fort Laramie of 1868. Wright has named as Defendants the four federal
judges who were involved in his previous cases, the current United States Attorney for the
District ofSouth Dakota, and an assistant United States Attorney who was involved in his prior
cases, as well as a special agent ofthe Federal Bureau ofInvestigation. Wright purports to bring
the action on behalf of not only himself, but also for other individuals.
A. Liberal Construction of Pro Se Complaint
A court must assume as true all facts well pleaded in the complaint. Cole v. Homier
Distrib. Co., Inc., 599 F .3d 856, 861 (8th Cir. 2010). "[A ]lthough liberally construed, a pro se
complaint must contain specific facts supporting its conclusions." Allen v. Purkett, 5 F 3d 1151,
1153 (8th Cir. 1993) (citations omitted); see also Stringer v. St. James R-l Sch. Dist., 446 F.3d
799,802 (8th Cir. 2006). A plaintiffs complaint "does not need detailed factual allegations ..
. [but] requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do." Bell Ad. Corp. v. Twombly, 550 U.S. 544, 555 (2007). If a
complaint does not contain these bare essentials, and is instead based on "vague [or] conclusory"
allegations or "unsupported generalizations," dismissal is appropriate. Beavers v. Lockhart, 755
F.2d 657,663 (8th Cir. 1985). In Twombly, the Supreme Court ofthe United States made clear
that a complaint's factual allegations must be "enough to raise a right to relief above the
speculative level on the assumption that all the allegations in the complaint are true." 550 U.S.
at 555; Abdullah v. Minnesota, 261 Fed. Appx. 926, 927 (8th Cir. 2008) (citing Twombly and
noting complaint must contain either direct or inferential allegations regarding all material
elements necessary to sustain recovery under some viable legal theory).
It has long been recognized that "civil rights pleadings should be construed liberally."
Frey v. City of Herculaneum, 44 F3d 667,671 (8th Cir. 1995). The complaint, however, must
contain facts that state a claim as a matter of law and must not be conclusory. Id. Broad and
conclusory statements unsupported by factual allegations are not sufficient. Ellingburg v. King,
490 F .2d 1270, 1271 (8th Cir. 1974). Although pro se complaints are to be construed liberally,
"they still must allege sufficient facts to support the claims advanced." Stone v. Harry, 364 F .3d
912, 914 (8th Cir. 2004). The Court is not required to supply additional facts for a pro se
plaintiff, nor construct a legal theory that assumes facts which have not been pleaded. Id. "[T]o
state a claim for relief under § 1983, a plaintiff must allege facts sufficient to show (1) that the
defendants acted under color ofstate law, and (2) that the alleged wrongful conduct deprived the
plaintiff of a constitutionally protected federal right." Zutz v. Nelson, 601 F.3d 842, 848 (8th
Cir. 2010) (internal citations omitted).
This Court is obliged to "screen" prisoner complaints that seek redress from governmental
entities or employees. 28 U.S.c. § 1915A. This Court is required to dismiss claims that are
frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.c. §
1915A(b)(1). Before considering whether Wright's claim survives under the requisite screening
under Section 1915A, this Court considers the petition to proceed in forma pauperis.
B. In Forma Pauperis Status
A federal court may authorize the commencement of suit without prepayment of fees
when an applicant files an affidavit stating he is unable to pay the costs of the lawsuit. 28 U.S.C.
§ 1915. In forma pauperis status is a privilege rather than a right. See e.g., Williams v.
McKenzie, 834 F.2d 152, 154 (8th Cir. 1987) (discussing the right to proceed in forma pauperis
in a nonprisoner case). Determining whether an applicant is sufficiently impoverished to qualifY
to proceed in forma pauperis under Section 1915 is committed to the court's discretion. Cross
v. Gen. Motors Com., 721 F.2d 1152, 1157 (8th CiT. 1983). "In forma pauperis status does not
require a litigant to demonstrate absolute destitution." Lee v. McDonald's Com., 231 F.3d 456,
459 (8th Cir. 2000). Wright's motion to proceed without payment of fees and declaration (Doc.
4) and his prisoner trust account report (Doc. 5) reveal that he is indigent. This Court will grant
the motion to proceed in forma pauperis.
The Prison Litigation Reform Act, 28 U.S.c. § 1915, requires prisoners to make an initial
partial filing payment where possible. Determination ofthe partial filing fee is calculated according
to 28 U.S.c. § 1915(b)(l), which requires 20 percent of the greater of: (a) the average monthly
deposits to the prisoner's account; or (b) the average monthly balance in the prisoner's account for
the six-month period immediately preceding the filing of the complaint or notice of appeal.
Wright's application represents that he has no funds whatsoever, including no funds in his inmate
trust account. Under Section 1915(b)(4), no prisoner shall be prohibited from bringing a civil
action by reason ofthe prisoner having no assets and no means to make an initial partial filing fee.
Wright is obligated to pay the filing fee regardless of whether this Court allows or dismisses this
action. In re Prison Litig. Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997). The obligation to pay
a filing fee accrues the moment a plaintifI files his complaint with the court, and it cannot be
avoided merely because the case is eventually dismissed. In re Tyler, 110 F.3d 528, 529-30 (8th
Cir. 1997) (prisoner will be assessed full filing fee even ifhis case is dismissed because "the PLRA
makes prisoners responsible for their filing fees the moment the prisoner brings a civil action or
files an appeaL").
C. Wright's Claim on Behalf of Others
Because Wright is not an attorney, he is not permitted to file lawsuits on behalf of other
individuals. See Steele v. City of Bemidji, 257 F.3d 902, 905 (8th Cir. 2001) (non-lawyer has
no right to represent another entity in federal court); see also Lattanzio v. COMTA, 481 F .3d 137,
139 (2nd Cir. 2007) (28 U.S.C. § 1654 "does not permit unlicensed laymen to represent anyone
else other than themselves"); Restatement (Third) ofthe Law Governing Lawyers § 4 (2000) ("In
general, however, a person appearing pro se cannot represent any other person or entity, no
matter how close the degree of kinship, ownership, or other relationship"). Accordingly, this
Court will construe Wright's Complaint as asserting only claims on his behalf.
D. Successive Habeas Claim
When Wright previously filed a post-conviction challenge to federal jurisdiction over
him, Chief Judge Schreier recharacterized the pleading as one for habeas relief under 28 U.S.C.
§ 2255, advised Wright of the restrictions on subsequent habeas petitions under 28 U.S.c. §
2255(h), and permitted Wright to withdraw or amend to include all claims possible under § 2255.
United States v. Wright, CR 06-30026, Doc. 124. Wright did not withdraw his motion or amend
his claims, and proceeded with a claim that there was no jurisdiction over him. Wright's § 2255
petition for relief was denied. Wright v. United States, CIV 09-3017, Doc. 27.
Under 28 U.S.C. § 2255(h), a second or a successive petition must be certified as
provided in 28 U.S. C. § 2244 by a panel of the appropriate court of appeals to contain either
"newly discovered evidence that, ifproven and viewed in the light of the evidence as a whole,
would be sufficient to establish by clear and convincing evidence that no reasonable fact finder
would have found the movant guilty ofthe offense;" or "a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."
Wright has not met this requirement, and his petition is subject to dismissal on this basis alone.
E. Claim Under Fort Laramie Treaty of 1868
Although this Court does not need to reach the merits of Wright's claims, this Court has
had cause, on a number of previous occasions, to address the misapprehension that Native
American Indians are exempted from enforcement of criminal laws under that treaty. That
misapprehension stems from a misinterpretation ofthe "bad men" clause ofthe treaty. The "bad
men" clause provides that:
If bad men among the Indians shall commit a wrong or depredation
upon the person or property of anyone, white, black, or Indian,
subject to the authority of the United States, and at peace therewith,
the Indians herein named solemnly agree that they will, upon proof
made to their agent and notice by him, deliver up the wrong-doer to
the United States, to be tried and punished according to its laws ...
Art. I, paragraph 3, Treaty ofFt. Laramie of 1868. Wright does not specifY what treaty rights he
believes Defendants violated and does not plead any facts in support of his assertion that his
"Indian rights" were violated.
The "bad men" clause does not exempt Native American Indians from being held
responsible for violation of federal law. Congress, in passing the Major Crimes Act, "intended
full implementation offederal criminal jurisdiction in those situations to which the Major Crimes
United States v. Jacobs, 638 F.3d 567, 569 (8th Cir. 2011).
misinterpretation of the "bad men" clause of the Fort Laramie Treaty of 1868 is at odds with the
Major Crimes Act. While Native Americans have good reason in a historical sense to question
how the United States chose to honor or dishonor the Fort Laramie Treaty of 1868, the "bad men"
clause and the treaty itself does not render Wright a separate sovereign immune from prosecution
for violation of federal criminal law.
F. Judicial and Prosecutorial Immunity
Wright has named as Defendants two federal district court judges and two United States
magistrate judges who had involvement in his prior cases. The doctrine ofjudicial immunity is
well-established. "Few doctrines were more solidly established at common law than the
immunity of judges from liability for damages for acts committed within their judicial
jurisdiction[.]" Pierson v. Ray, 386 U.S. 547, 553-54 (1967). Judicial immunity is an immunity
from suit, not just from the ultimate assessment of damages. Mireles v. Waco, 502 U.S. 9, 11
(1991) (per curiam). "A judge is absolutely immune from liability if (1) the judge had subject
matter jurisdiction, and (2) the acts complained ofwere judicial acts." Childs v. Reynoldson, 777
F.2d 1305, 1306 (8th Cir. 1985) (internal citations omitted).
The federal district court judges and magistrate judges had subject matter jurisdiction
over Wright due to the fact that his crime occurred in Indian Country and Wright is a Native
American. 18 U.S.c. § 1153(a); United States v. Jones, 440 F. 3d 927, 929 (8th Cir. 2006). In
the subsequent § 2255 case, the judges had jurisdiction under 28 U.S.C. § 2255 to rule on the
motions and other filings made by Wright. The Treaty ofFort Laramie of 1868 does not deprive
the federal court of subject matter jurisdiction. The judges named by Wright are immune from
The federal prosecutors, likewise, are immune from suit under the circumstances ofthis
case. The Supreme Court of the United States held in Imbler v. Pachtman, 424 U.S. 409, 431
(1976) that "in initiating a prosecution and in presenting the State's case, the prosecutor is
immune from a civil suit for damages under § 1983." "Absolute immunity covers prosecutorial
functions such as the initiation and pursuit of a criminal prosecution, the presentation of the
state's case at trial, and other conduct that is intimately associated with the judicial process."
Brodnicki v. City of Omaha, 75 F.3d 1261, 1266 (8th Cir. 1996), cert. denied, 519 U.S. 867
(1996). Conversely, a prosecutor is entitled only to qualified immunity when he pursues actions
in an "investigatory" or "administrative" capacity. Buckley v. Fitzsimmons, 509 U.S. 259,273
(1993). In determining whether the actions ofthe prosecutor fit within the absolute or qualified
immunity standard, the Supreme Court has adopted a functional approach that looks to "the
nature of the function performed, not the identity of the actor who performed it." Forrester v.
White, 484 U.S. 219, 229 (1988).
There is nothing in Wright's allegations relating to the prosecutors acting in an
investigatory or administrative capacity. Rather, the naming of the prosecutors by Wright
appears to relate to his contention that there is an absence of federal jurisdiction over him and
that somehow he is his own unique sovereign entity.
As for the claims against the United States Marshal's Service and the agent ofthe Federal
Bureau of Investigation, Wright's pleadings do not elaborate on what they allegedly did
improperly. For all ofthe reasons explained above, no plausible cause of action is maintainable
Therefore, it is hereby
ORDERED that Wright's Motion to Proceed Without Prepayment ofFees and Declaration
(Doc. 4) is granted. It is further
ORDERED that the institution having custody ofWright is hereby directed that whenever
the amount in Wright's trust account exceeds $10.00, monthly payments that equal twenty (20)
percent of the funds credited to the account the preceding month be forwarded to the United
States District Court Clerk, 225 South Pierre Street, Pierre, South Dakota 57501, pursuant to 28
U.S.C. § 1915(b)(2), until Wright has paid the $350.00 filing fee in fulL It is further
ORDERED that all claims against all Defendants are dismissed.
Dated May &,2012.
BY THE COURT:
ROBERTO A. LANG
lTNITED STATES DISTRICT JUDGE
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