Fox v. State of South Dakota et al
ORDER granting 4 Motion for Leave to Proceed in forma pauperis; denying as moot 5 Motion to Appoint Counsel; and Dismissing Complaint. Signed by U.S. District Judge Roberto A. Lange on 4/26/2017. (JLS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
APR 26 2017
KENNETH ALLAN FOX,
STATE OF SOUTH DAKOTA, CHIEF
ORDER GRANTING MOTION FOR
PENITENTIARY, JUDICIARY OF SOUTH
DAKOTA SYSTEM, CO NYREEN, STATE
ASST ATTY GENERAL KEMPEMA, ATTY
GENERAL M. JACKLEY, TREASURER,
P. KINSMAN, ASSOCIATE WARDEN
ALLCOCK, CHIEF JUSTICE
GILBERTSON, ATTORNEY JAMIE
DAMON, AGENT BUSHKO,
LEAVE TO PROCEED WITHOUT
PREPAYMENT OF FEES, DENYING
MOTION TO APPOINT COUNSEL,
AND DISMISSING COMPLAINT
Plaintiff Kenneth Allan Fox ("Fox") filed this lawsuit pursuant to 42
U.S.C. § 1983. Doc. 1. Fox is an inmate at the South Dakota State
Penitentiary in Sioux Falls. This court has screened his complaint pursuant to
28 U.S.C. § 19ISA. For the following reasons, the court grants Fox's motion
for leave to proceed without prepayment of fees, denies his motion to appoint
counsel, and dismisses his complaint.
Fox filed this complaint on April 10, 2017. Doc. 1. He alleges that certain
defendants violated his rights after he brought a habeas petition in state court.
Id. at 6. He also alleges that defendants at SDSP violated his rights by refusing
to send his legal mail to the court. Id. at 5-6. Along with his complaint, Fox
moves for leave to proceed without prepayment of fees, Doc. 4, and moves the
court to appoint counsel. Doc. 5.
At this stage of the case, this Court must accept the well-pleaded
allegations in the complaint as true and draw all reasonable inferences in favor
of the non-moving party. Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444
(8th Cir. 2014). Civil rights and pro se complaints must be liberally construed.
Erickson v. Pardus, 551 U.S. 89, 94 (2007)(citation omitted); Bediako v. Stein
Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). Even with this construction,"a
pro se complaint must contain specific facts supporting its conclusions." Martin
V. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985); Ellis v. City ofMinneapolis,
518 F. App'x 502, 504 (8th Cir. 2013). Civil rights complaints cannot be
merely conclusory. Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993); Parker v.
Porter, 221 F. App'x 481, 482 (8th Cir. 2007).
A 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." BellAtl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). "If a plaintiff cannot make the requisite showing, dismissal is
appropriate." Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985).
Under 28 U.S.C. § 1915A, this Court must screen prisoner claims filed in
forma pauperis and determine whether they are (1) "frivolous, malicious, or
fail to state a claim on which relief may be granted; or (2) seek monetary
relief from a defendant who is immune from such relief." See also Onstad v.
Wilkinson, 534 F. App'x 581, 582 (8th Cir. 2013).
Motion to Proceed Without Prepayment of Fees
Under the Prison Litigation Reform Act (PLRA), a prisoner who "brings a
civil action or files an appeal in forma pauperis . . . shall be required to pay
the full amount of a filing fee." 28 U.S.C. § 1915(b)(1). The court may, however,
accept partial payment of the initial filing fee where appjropriate. Therefore,
"'[w]hen an inmate seeks pauper status, the only issue is whether the inmate
pays the entire fee at the initiation of the proceedings or over a period of time
under an installment plan.'" Henderson v. Norris, 129 F.3d 481, 483 (8th Cir.
1997)(quoting McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997)).
The initial partial filing fee that accompanies an installment plan is
calculated according to 28 U.S.C. § 1915(b)(1), which requires a payment of 20
percent of the greater of:
the average monthly deposits to the prisoner's account; or
the average monthly balance in the prisoner's account for
the 6-month period immediately preceding the filing of the
complaint or notice of appeal.
Fox's most recent prison trust account report did not contain any financial
information, but he also provided a report from September of 2016 that shows
a balance of negative $946.63. Doc. 3 at 3. Under 1915(b)(4),"In no event
shall a prisoner be prohibited from bringing a civil action or appealing a eivil
or criminal judgment for the reason that the prisoner has no assets and no
means by which to pay the initial partial filing fee." Therefore, the court grants
Fox leave to proceed without prepayment of fees and waives the initial partial
Even though the court has waived the initial partial fee, Fox 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 as follows:
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 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, the installments will be collected pursuant
to this procedure.
The clerk of the court will send a copy of this order to the appropriate
financial official at Fox's institution. Fox will remain responsible for the entire
filing fee, as long as he is a prisoner, even though the case is dismissed. See
In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997).
Screening Under § 1915A
Fox claims that defendants violated his constitutional rights by refusing
to send his legal mail to the court. Doc. 5-6. He alleges that defendants told
him that he did not have any money in his account and used the $10 per
month the prison gives or loans the prisoners for legal mail. Id. He alleges that
his habeas petition and another motion were dismissed because he eould not
send his legal mail. Id.
"The Constitution does not prohibit charging prisoners for essential
prison services, at least in the absence of a showing that the result is a severe
deprivation of a fundamental right." Holloway v. Magness, 666 F.3d 1076,
1080 (8th Cir. 2012). In Blaise v. Fenn, 48 F.3d 337 (8th Cir. 1995), the Eighth
Circuit Court of Appeals upheld a similar legal mail policy. There, the prison
gave prisoners a monthly allowance of $7.70 to spend on all of their needs,
including postage for legal mail. Id. at 338.
The court of appeals cited Bounds v. Smith, 430 U.S. 817, 824-25 (1977),
as stating that "indigent inmates must be provided at state expense with paper
and pen to draft legal documents, with notarial services to authenticate them,
and with stamps to mail them[,]" but also noted that Bounds did not require
that prisons provide unlimited free postage. Blaise, 48 F.3d at 339. The court
of appeals analyzed the allowance of $7.70 under Turner v. Safley, 482 U.S. 78,
89 (1987), and found it constitutional. Blaise, 48 F.3d at 339; see also Cody v.
Slykhuis, No. CIV. 04-4169, 2006 WL 759683 (D.S.D. Mar. 23, 2006), affd,
240 F. App'x 160 (8th Cir. 2007)(finding that, under the analysis in Blaise,
SDSP's policy of limiting inmate photocopies to $10 per month was
constitutional). Therefore, Fox fails to state a claim of denial of access to the
courts, and his claim is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)
Erroneous Rulings Concerning Habeas Petition
Fox claims that his rights were violated in the state court because his
habeas petition and other motions were denied. Doc. 1 at 5. He alleges that
Judge Barnett made erroneous rulings. Id. Fox fails to state a claim concerning
his habeas petition.
First, Fox's claims against judicial defendants are dismissed. Judges are
immune from suit, including § 1983 suits, with two narrow exceptions. "First, a
judge is not immune from liability for nonjudicial actions, i.e., actions not
taken in the judge's judicial capacity. Second, a judge is not immune for
actions, though judicial in nature, taken in the complete absence of all
jurisdiction." Schottel v. Young, 687 F.3d 370, 373 (8th Cir. 2012)(quoting
Mireles v. Waco, 502 U.S. 9, 11-12 (1991)). The only specific judicial actions
that Fox alleges concern the denial of his motion and petition, which are
actions taken in a judicial capacity. Therefore, Fox fails to state a claim on
which relief may be granted against all of the defendant judges, and his claim
is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
Fox also fails to state a claim against the non-judicial defendants
because his claims are barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994).
Under Heck,"When 'a judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence ...' 1983 is not an available
remedy." Skinner v. Switzer, 562 U.S. 521, 533 (2011)(quoting Heck, 512 U.S.
at 487). Fox seeks the invalidation of his sentence. Doc. 1 at 5, 6. Also, if he
only sought the reversal of the denial of his habeas petition, an appeal rather
than a complaint under § 1983 would be the proper vehicle. It appears from
the complaint that Fox unsuccessfully appealed the dismissal of his habeas
petition. Therefore, Fox fails to state a claim on which relief may be granted,
and his claim is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
The remainder of Fox's complaint raises a number of elaims but does not
explain them fully. These claims are either unclear or conclusory. Conclusory
allegations are not sufficient to state a elaim under § 1983. Hannah v. Schriro,
242 F.3d 374 (8th Cir. 2000)(citing Springdale Educ. Ass'n v. Springdale Sch.
Dist, 133 F.3d 649 (8th Cir. 1998)). Fox also refers the eourt to the
attaehments to his eomplaint for further explanation of his claims, but the
attaehments are documents that do not elearly raise claims or explain the
elaims he raises in his complaint. A liberal eonstruetion of a pro se civil rights
pleading does not require the court "to divine the litigant's intent and ereate
claims that are not elearly raised." Bediako v. Stein Mart, Inc., 354 F.3d 835,
840 (8th Cir. 2004). Therefore, Fox fails to state a elaim on which relief may be
granted, and any claim he seeks to raise other than those discussed above are
dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
Accordingly, it is ORDERED
1. Fox's motion for leave to proceed without prepayment of fees (Doe. 4)
1 is granted.
2. Fox's institution will collect the monthly payments in the manner set
forth in 28 U.S.C. § 1915(b)(2), quoted above, and will forward those
installments to the court until the $350 filing fee is paid in full.
3. The clerk of the court is directed to send a copy of this order to the
appropriate official at Fox's institution.
4. Fox's complaint is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(l) for failure to state a claim upon which relief may be
5. Fox's motion to appoint counsel(Doc. 5) is denied as moot.
Dated April 2^, 2017.
BY THE COURT:
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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