Carothers v. Weber

Filing 10

ORDER denying as moot 5 Motion to Appoint Counsel ; denying 3 Motion for Leave to Proceed in forma pauperis. Carothers must pay the $400 filing fee to the Clerk, US District Court. Carothers may not file any additional civil cases in forma pauperis unless he is "under imminent danger of serious physical injury" as set forth at 28 USC 1915(g). Signed by U. S. District Judge Lawrence L. Piersol on 5/14/13. (DJP)

fILED

UNITED STATES DISTRICT COURT

MAY 1 4 2013

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DERRICK EUGENE CAROTHERS,
Plaintiff,
vs.
DOUGLAS WEBER, Warden, Executive
Officer, South Dakota State Penitentiary,
Defendant.

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Civ. 13-4026-LLP

ORDER DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING COMPLAINT

Plaintiff Derrick E. Carothers is an inmate at the South Dakota State Penitentiary in Sioux
Falls, South Dakota. Carothers has filed a pro se action alleging slander, libel, assault, and
negligence, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Dockets 1-3.
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)(l). The court may, however, accept partial payment of the initial filing fee
where appropriate. 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».
Significantly, the PLRA prohibits a prisoner from requesting in forma pauperis status in
an action or appeal
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 of the 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
ofserious physical injury.
28 U.S.c. § 1915(g) (emphasis added). Carothers has, on three or more prior occasions, brought
an action in federal court that was dismissed pursuant to the screening procedures of § 1915. See

Carothers v. SD State Prison, Civ. 94-4071; Carothers v. Class, et al., Civ. 95-4011; Carothers
v. Vrooman, Civ. 95-4243; Carothers v. Prison Admin., Civ. 96-4118; Carothers v. Class, et al.,
Civ. 96-4119; Carothers v. Class, et al., Civ. 96-4120; Carothers v. Class, et al., Civ. 96-4121;

Carothers v. Strohman, Civ. 96-4123; Carothers v. Lee, et al., Civ. 96-4124; Carothers v. Class,
et al., Civ. 96-4125; Carothers v. Miller, Civ. 96-4126.' Moreover, Carothers has not established
that he is under imminent danger of serious physical injury. Accordingly, the court denies
Carothers' request to proceed in forma pauperis. Docket 3. Carothers must pay the requisite $400
filing fee.
But the inquiry does not end there. The PLRA requires the court to screen Carothers'
complaint to determine whether any claims should be dismissed. Pursuant to the PLRA, the court
must dismiss an action or any portion thereof if the prisoner has raised a claim that "(i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief." § 1915(e)(2)(B)(i)-(iii).

ST ANDARD OF REVIEW
A claim "is frivolous where it lacks an arguable basis in law or in fact." Neitzke v.

Williams, 490 U.S. 319, 325 (1989). The court may, therefore, dismiss a claim as frivolous when

, Although the majority of Carothers' complaints were filed and dismissed prior to the
enactment of the Prison Litigation Reform Act, the Eighth Circuit accounts for pre-PLRA
dismissals in determining a plaintiffs total number of strikes. See, e.g., In re Tyler, 110 F.3d
528,529 (8th Cir. 1997); Ayers v. Norris, 43 F.Supp.2d 1039, 1044 n. 4 (E.D. Ark. 1999),
overruled on other grounds by Higgins v. Carpenter, 258 F.3d 797,800 (8th Cir. 2001).
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it is "based on an indisputably meritless legal theory" or where the factual contentions "are
clearly baseless." Id. at 327. The court may dismiss a complaint for failure to state a claim when
"it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In reviewing a
complaint under this standard, "[t]he court must presume that the factual allegations in the
complaint are true and accord all reasonable inferences from those facts to the [pleader]."

Valiant-Bey v. Morris, 829 F.2d 1441, 1443 (8th Cir. 1987) (citing Holloway v. Lockhart, 792
F.2d 760, 762 (8th Cir. 1986».
Pro se complaints, " 'however inartfully pleaded,' [are] held to 'less stringent standards
than formal pleadings drafted by lawyers.' " Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting

Haines v. Kerner, 404 U.S. 519, 520 (1972»; see also Frey v. City o/Herculaneum, 44 F.3d 667,
671 (8th Cir. 1995) (noting that "civil rights pleadings should be construed liberally").
Nonetheless, a pro se complaint must comply with the minimal requirements set forth in the
Federal Rules of Civil Procedure, which specifically require pleadings to contain "a short and
plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).
Moreover, although a pro se complaint need not contain detailed factual allegations, it must
"allege facts sufficient 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, nor will [it] construct a legal
theory that assumes facts that have not been pleaded." Id. (citing Dunn v. White, 880 F.2d 1188,
1197 (10th Cir. 1989». Finally, a pro se complaint must contain "more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007). If the complaint does not contain these bare

essentials, dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657,663 (8th Cir. 1985).
DISCUSSION
Liberally construed, Carothers' original complaint alleges that Defendant is illegally
detaining Carothers in violation of the Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth
Amendments. Docket 1 at 3-4. More specifically, Carothers alleges that Defendant did not have
a court-issued warrant to seize and detain Plaintiff, and thus could not legally detain Carothers.
Id. at 3. Further, Carothers alleges that "[n]o staff member, of State Penitentiary, has recieved

[sic] authority to detain any party(ies); post Indictment(s), pretrial hearings, in court, by non­
hearsay; of Warrant basis; for Warden Weber's nor prison staffs authority; over Plaintiff(s) et
al.; Hearsay detainment is unauthorized and illegal." Id. To remedy the alleged violation,
Carothers requests that the court issue either a temporary restraining order or a preliminary
injunction "against further warrantless infringment [sic] of liberty." Id. In supplemental filings,
Carothers attempts to clarify the contents of his original complaint by insisting that his case be
filed as an action for slander, assault, libel, and negligence. Docket 2; Docket 9. Carothers also
provides the court with two forensic lab reports and the transcript from a motions hearing held on
March 25,2004. Docket 9.
Regardless whether the court construes Carothers claims as arising under the theory of
slander, assault, libel, negligence, or illegal detainment, the court finds that Carothers has not
provided the court with facts to support the claims advanced. To the contrary, Carothers
complaint contains nothing more than labels and conclusions. Standing alone, Carothers'
complaint alleges insufficient facts to state a claim for relief, and the information provided to the

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court in Carothers' supplemental filings does not shed any additional light on Carothers'
accusations. The court therefore finds that Carothers has failed to state a claim on which relief
may be granted, and his complaint does not survive initial review under 28 U.S.C. § 1915.
Accordingly, it is
ORDERED that Carothers' motion for leave to proceed in forma pauperis (Docket 3) is
denied. Carothers must pay the $400 filing fee to the Clerk, U.S. District Court.
IT IS FURTHER ORDERED that Carothers' complaint (Docket 1) is dismissed for
failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915. Carothers
is notified that he may not file any additional civil cases in forma pauperis unless he is ''under
imminent danger of serious physical injury" as set forth at 28 U .S.C. § 1915(g). Carothers may
still file civil cases if the complaint is accompanied by the $400 filing fee applicable to civil
actions.
IT IS FURTHER ORDERED that Carothers' motion to appoint counsel (Docket 5) is
denied as moot.
Dated this 1y1;ay of May, 2013.
BY THE COURT:

WRENCE L. PIERSOL
ITED STATES DISTRICT JUDGE

ATTEST:

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DEPUTY

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