Cragoe v. Maxwell et al
Filing
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ORDER granting 4 Motion for Leave to Proceed in forma pauperis (initial partial fee in the amount of $27.34 due on or before March 30, 2012); denying as moot 5 Motion to Appoint Counsel ; denying as moot 7 Motion for Preliminary Injunction ; denying as moot 7 Motion for TRO; denying as moot 10 Motion for Preliminary Injunction; denying as moot 10 Motion for TRO; denying as moot 20 Motion for Leave to Proceed in forma pauperis; denying as moot 22 Motion. Signed by U. S. District Judge Lawrence L. Piersol on 2/13/12. (DJP)
FILED
FEB 1 3 2012
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
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CIV. 11-4188
KELLY G. CRAGOE
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Plaintiff,
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vs.
* ORDER GRANTING IN FORMA
* PAUPERIS STATUS and
ROBERT MAXWELL; DAVID NELSON;
* DISMISSING CASE
BLAINE ROSS; and JAMES MITZEL,
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Defendants.
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INTRODUCTION
Plaintiff, Kelly Cragoe, is an inmate at the Mike Durfee State Prison (MDSP) in Springfield,
South Dakota. He filed the above-captioned pro se lawsuit on December 22, 20 II. He has filed an
Application to Proceed In Forma Pauperis (Doc. 4) and a Motion For Appointment of Counsel
(Doc.5). Although Cragoe has not yet been allowed to proceed infonna pauperis and service ofhis
lawsuit has not yet been ordered, Cragoe has attempted to serve the suit papers by mailing them to
the various Defendants. See Doc. 13, 14, 15, 16. The Court has, as it must, "screened" Cragoe's
Complaint pursuant to 28 U.S.c. § 1915A. For the reasons explained below, Cragoe's Complaint
will be dismissed.
BACKGROUND
Because Cragoe's Complaint is not on the form commonly provided to prisoners for pursuing
civil rights causes of action under 42 U.S.c. § 1983, it is unclear whether Cragoe intends his claims
to be so construed. The civil cover sheet completed by Cragoe states the basis for federal jurisdiction
is "diversity of citizenship" although he indicates that both Plaintiff and Defendants are citizens of
South Dakota. The "U.S. civil statute" under which he indicates he is filing is "SDCL 22-22-7," the
South Dakota code section criminalizing sexual contact with a minor under the age ofsixteen years.
In his Complaint, Cragoe claims that when he was fifteen (15) years old, he was sexually
assaulted by Defendant Maxwell. Cragoe claims he reported the assault to Defendants Ross and
Mitzel "during the interview ofPlaintiffon an unrelated case." Cragoe alleges that neither Ross nor
Mitzel investigated his claim, which resulted in Maxwell's ability to "continue assaulting teenage
boys." Cragoe claims Maxwell's assault was also relayed to Defendant Nelson but that Nelson
likewise did nothing to investigate Cragoe's allegations.
Cragoe requests two fonns of relief from the Court. First, he asks the Court to initiate
criminal charges against Defendants Ross, Mitzel and Nelson for their alleged failure to investigate
Cragoe's allegations against Maxwell, which Cragoe believes allowed Maxwell "to continue assaulting
teenage boys." Second, Cragoe requests monetary compensation for pain, suffering, humiliation and
abuse inflicted upon him by the Defendants, along with a written apology/explanation for "why he
was assaulted and why he was denied justice."
DISCUSSION
Cragoe's claims are not viable and must be dismissed, whether they are construed as civil
rights claims under 42 V.S.C. § 1983 or common law tort claims.
1.
Cragoe's Motion for In Forma Pauperis Status
It satisfactorily appears from the prison records that the average monthly deposits to plaintiffs
prisoner trust account for the past six months was $110.00, and that his average monthly balance for
the past six months was $136.70. The current balance of plaintiff's prison account is $144.65.
Accordingly, the Court finds that plaintiff is required by the Prison Litigation Reform Act, 28 V. S. C.
§ 1915, to make an initial partial filing fee of$27.34.
2.
The Court Cannot Initiate Criminal Charges
Cragoe alleges that, when he was fifteen years old, he was sexually assaulted by Maxwell
Cragoe further alleges he reported the assault to the remaining Defendants but they failed to
investigate his allegations. Cragoe asks the Court to bring criminal charges against the Defendants
for their failure to investigate. This Court has no authority to order that state criminal charges be
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brought against Defendants. "Whether to prosecute and what criminal charges to file or bring are
decisions that generally rest in the prosecutor's not the court's discretion." Smith v. Powers, 1998 WL
355818 (N.D. Cal) (prisoner § 1983 lawsuit requesting criminal charges against jailer dismissed on
screening). "Whether to prosecute and what charge to file or bring before a grand jury are decisions
that generally rest in the prosecutor's discretion." United States v. Batchelder, 442 U.S. 114, 124,
99 S.Ct. 2198, 2204, 60 L.Ed.2d 755 (1979). See also Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th
Cir. 1980) (criminal code provides no basis for civil liability). IfCragoe believes criminal charges are
appropriate for whatever reason, this Court is not the proper entity to initiate those proceedings.
Smith, 1998 WL 355818 at fh.l. Cragoe's request for state criminal charges against the Defendants
requests relief which this Court does not have the authority to give him. See also Ray v. Dept. of
Justice 508 F.Supp. 724, 725 (E.D. Mo. 1981) ("It is well settled that initiation of federal criminal
prosecution is a discretionary decision within the Executive Branch not subject to judicial
compulsion. ")(citing. UnitedStatesv. Cox, 342F.2d 167,171 (5thCir.1965);28U.S.C. §547(1).
3.
The Court Has No Subject Matter Jurisdiction Over Cragoe's Purported Tort
Claim.
"Federal subject matter jurisdiction may be raised at any time during litigation and must be
raised sua sponte by a federal court when there is an indication that jurisdiction is lacking.... Unlike
state courts, federal courts are courts oflimited, not general, jurisdiction." Alumax Mill Products,
Inc. v. Congress Financial Corp., 912 F.2d 996, 1002 (8th Cir. 1990). While the jurisdictional
statement contained in Cragoe's Complaint is not clear, he indicates in the Civil Cover Sheet that the
nature ofhis lawsuit is a "personal injury tort" and he bases jurisdiction ofthis Court upon "diversity
of citizenship." Cragoe also claims on the Civil Cover Sheet, however, that both the Plaintiff and
Defendant are citizens of South Dakota.
It is noted that Sergeant Ellingson ofthe Brandon Police Department wrote a letter to Cragoe
indicating that Defendant Ross retired in 1999 and moved out of state. Doc. 14. Defendant Dave
Nelson, however, is well known in the State ofSouth Dakota as the former Minnehaha County States
Attorney.
Nelson currently serves as the Chairperson of the South Dakota Department of
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Corrections Board of Pardons and Paroles.
See http://doc.sd.gov/parole/.
"Subject matter
jurisdiction asserted under 28 U.S.c. § 1332 [diversity ofcitizenship] may be maintained only where
there is complete diversity, that is 'where no defendant holds citizenship in the same state where any
plaintiff holds citizenship. !II Junk v. Terminix International Co., 628 F.3d 439, 445 (8th Cir. 201 O)
(citations omitted). Because complete diversity between Cragoe and the Defendants is lacking, the
Court lacks subject matter jurisdiction over his purported claims.
4.
The Statute of Limitations for Cragoe's Claims Has Expired
Finally, whether Cragoe's claims are construed as civil rights claims under 42 U.S.C. § 1983
or state law tort claims, they are barred by the applicable statute of1imitations. The factual basis for
the claims contained in Cragoe's Complaint is his assertion that when he was fifteen, he was sexually
assaulted by Defendant Maxwell. Cragoe asserts he told the remaining Defendants about Maxwell's
assault, but they did nothing. Cragoe does not include the specific dates of these events in his
Complaint. The Court, however, takes judicial notice of State v. Cragoe, 514 N.W.2d 396 (S.D.
1994). In that case, the South Dakota Supreme Court describes Cragoe's criminal convictions for
first degree rape and sexual contact with a child. Cragoe began sexually mo lesting children at the age
offifteen "and believed he was justified in molesting them because he claimed to have been molested
at age fifteen." Id. at 397. The South Dakota Supreme Court noted Cragoe was twenty years old
in 1992. Id. In other words, Cragoe is currently approximately forty (40) years old. He has been
making this same claim that he was sexually molested at age fifteen since he was fifteen years old--or
for the past twenty-five years. Id.
In South Dakota, civil rights claims based on 42 U.S.C. § 1983 are subject to a three year
statute oflimitations. See SDCL § 15-2-15.2 which states:
15-2-15.2. Time for bringing action under federal civil rights statutes
Any action brought under the federal civil rights statutes may be commenced only
within three years after the alleged constitutional deprivation has occurred. This
section is prospective in application.
Although the statute of1imitations is an affirmative defense, "a district court may properly
dismiss an in forma pauperis complaint under 28 U.S.C. § 1915(d} when it is apparent the statute of
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1imitations has run." Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (citations omitted).
Because it is clear the events referred to in Cragoe's Complaint happened nearly twenty -five
years ago, and it appears that Defendant Ross retired from his job with the Brandon Police
Department thirteen years ago, it is clear the three year statute oflimitations has expired.
The statute has likewise expired for Cragoe's sexual abuse and/or personal injury claims. In
South Dakota, the statute oflimitations for a civil action arising out ofthe sexual abuse of a child is
three years. SDCL 26-10-25 states:
26-10-25.
Time for commencing action for damages resulting from
childhood sexual abuse
Any civil action based on intentional conduct brought by any person for recovery of
damages for injury suffered as a result ofchildhood sexual abuse shall be commenced
within three years of the act alleged to have caused the injury or condition, or three
years ofthe time the victim discovered or reasonably should have discovered that the
injury or condition was caused by the act, whichever period expires later. However,
no person who has reached the age of forty years may recover damages from any
person or entity other than the person who perpetrated the actual act ofsexual abuse.
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Cragoe discovered his alleged injury nearly twenty-five years ago, when he was fifteen years
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old. Even applying the tolling provisions ofSDCL §§ 15-2-22,26-1-1 discussed in fu 1 below, the
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statute oflimitations for a cause of action based upon childhood sexual abuse has expired. See also
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Boadwine v. Boadwine, Civ. No. 94-1015 (D. S.D. Northern Div.) Doc. 35 (dismissing p1aintifi7non
prisoner's childhood sexual abuse claim on SDCL 26-10-25 statute oflimitations grounds).
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The statute oflimitations for personal injury is three years. SDCL 15-2-14 states in relevant
part:
15-2-14. Action against sheriff, coroner, or constable--Action for statutory
penalty or forfeiture--Action for personal injury
Except where in special cases, a different limitation is prescribed by statute, the
following civil actions other than for the recovery ofreal property can be commenced
only within three years after the cause of action shall have accrued:
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(3) An action for personal injury
Because the statute of limitations has expired for every conceivable cause of action alleged
in Cragoe's Complaint, it must be dismissed for failure to state a claim upon which relief can be
granted pursuant to 28 U.S.C. § §§ 1915(e)(2)(B)(ii) and 1915A(b)(1); Myers v. Vogal, 960 F.2d
750,751 (8th Cir. 1992).1
5.
Cragoe's Filing Fees.
If Cragoe's suit had been allowed to proceed and he prevailed on the merits, he would have
recovered the filing fee.
Both the legislative history and the case law interpreting the Prison
Litigation Refonn Act, however, instruct that unsuccessful prison litigants, like any other litigants,
do not get their filing fees back iftheir cases are dismissed. That Plaintiffs case is dismissed pursuant
to the screening procedures of § 1915 does not negate his obligation to pay the fee. In Re: Prison
Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997). The obligation to pay a filing fee
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accrues the moment a plaintiff files his Complaint with the Court, and it cannot be avoided merely
because the case is eventually dismissed as frivolous. Anderson v. Sundquist, 1 F.Supp.2d 828,830
n. 5 (W.D. Tenn. 1998). One ofthe purposes ofthe Prison Litigation Refonn Act is to
require the prisoners to pay a very small share ofthe large burden they place on the
Federal judicial system by paying a small filing fee upon commencement oflawsuits.
In doing so, the provision will deter frivolous inmate lawsuits. The modest monetary
outlay will force prisoners to think twice about the case and not just file reflexively.
Prisoners will have to make the same decision that law abiding Americans must make:
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IPlaintiifs cause of action would have been tolled during his age ofminority (i.e. until he
was eighteen years old). See SDCL §§ 15-2-22, 26-1-1. However, "the period during which the
action shall be brought cannot be extended more than five years by any disability except infancy,
nor can it be extended in any case longer than one year after the disability ceases." Id. Because
approximately twenty-five years have passed since the date ofthe incident which forms the basis
ofCragoe's claims, even the tolling provision cannot save his claims. See Crisp v. Schultis, 507
N.W.2d 567 (S.D. 1993) (when plaintiff was injured while a minor and reached age of majority
more than one year before three year statute oflimitations expired, he was required to commence
his cause of action either before statute expired or within one year after he attained age of
majority, whichever was longer--three year limitations period was not tolled to allow him to file
his lawsuit within three years of reaching age of majority).
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Is the lawsuit worth the price?
Rollerv. Gunn, 107 F.3d 227, 231 (4th Cir. 1997)(quoting 141 Congo Rec. at S7526 (May 25, 1995)
See also 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 PRLA makes prisoners responsible for their filing fees the
moment the prisoner brings a civil action or files an appeal. "). Cragoe remains responsible payment
ofthe entire $350.00 filing fee.
Cragoe is advised that the dismissal ofthis lawsuit will be considered a "strike" for purposes
ofthe Prison Litigation Reform Act. 28 U.S.C. § 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
or proceeding under this section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an action or appeal in a court
ofthe United States that was dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
CONCLUSION and ORDER
Cragoe's Complaint insufficient to state a claim upon which relief may be granted because (1)
he requests relief the Court does not have the authority to grant; (2) this Court does not have subject
matter jurisdiction; and (3) it is clear that all his claims are barred by the applicable statute of
limitations. It is therefore ORDERED:
(l)
Plaintiffs Motion for in forma pauperis status (Doc. 4) is GRANTED.
Plaintiff remains responsible for payment ofthe entire $350 filing fee.
(2)
Plaintiff shall make an initial partial fee payment for docketing and filing fees
in the amount of$27.34 to the clerk of this court on or before March 30,
2012.
(3)
The institution having custody 0 fthe plaintiffis hereby directed that whenever
the amount in plaintiffs trust account exceeds $10.00, monthly payments that
equal 20% of the funds credited the preceding month to the plaintiffs trust
account shall be forwarded to the U.S. District Court Clerk's Office pursuant
to 28 U.S.C. § 1915(b)(2), until the filing fee is paid in full.
(4)
Plaintiffs Complaint is DISMISSED, without prejudice, for failure to state a
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claim upon which relief may be granted pursuant to 28 U.S.C. § §§
1915(e)(2)(B)(ii) and 1915A(b)(1);
(5)
All other pending motions (Docs. 5, 7, 10,20 and 22) are DENIED as moot.
Dated this 13th day of February, 2012.
BY THE COURT:
~,u.... l~S64-
renee L. Piersol
United States District Judge
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ATTEST:
JOSE~AtS. Clerk
By
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eputy
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