Johnson v. State of South Dakota et al

Filing 9

ORDER Dismissing Complaint. assessing second strike Signed by U.S. District Judge Lawrence L. Piersol on 5/9/17. (SLW)

FILED
UNITED STATES DISTRICT COURT

MAY 1 0 2017

DISTRICT OF SOUTH DAKOTA
CLERK

SOUTHERN DIVISION

4:17-CV-04026-LLP

LESLIE JOHNSON,
Plaintiff,
vs.

STATE OF SOUTH DAKOTA, a/k/a
SOUTH DAKOTA DEPARTMENT OF
CORRECTIONS,

ORDER DISMISSING COMPLAINT

DENNY KAEMINGK, Secretary of
Corrections,

CBM FOOD SERVICE INC., a/k/a
MARLIN C. SEJNOHA JR.,
Defendants.

INTRODUCTION

Plaintiff, Leslie Johnson, is an inmate at the Mike Durfee State Prison in

Springfield, South Dakota. Johnson filed a pro se lawsuit pursuant to 42
U.S.C. § 1983. Docket 1. The Court has now screened Johnson's complaint

pursuant to 28 U.S.C. § 19ISA. For the reasons stated below, the Court
dismisses Johnson's complaint.
FACTUAL BACKGROUND

Johnson filed this complaint on February 24, 2017. Docket 1. In his

complaint, Johnson alleges that defendants CBM violated his rights by

operating a monopoly of the food services in Mike Durfee State Prison. Id. He
alleges that the remaining defendants violated his rights by contracting with

CBM. Id. Johnson seeks injunctive relief, money damages, and nullification of
the contract between CBM and the South Dakota Department of Corrections.
Id.
LEGAL STANDARD

The 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 of Minneapolis, 518 F. App'x 502, 504

(8th Cir. 2013). Civil rights complaints cannot be merely conclusory. Daais 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." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). "If a plaintiff cannot make the requisite showing, dismissal is
appropriate." Abdullah v. Minnesota, 261 F. App'x 926, 927 (8th Cir. 2008);
Beavers v. Lockhart, 755 F.2d 657,663 (8th Cir. 1985).

28 U.S.C. § 1915A requires the Court to screen prisoner complaints and
dismiss them if they are "(1) frivolous, malicious, or fail[] to state a claim upon

which relief may be granted; or (2) seek[] monetary relief from a defendant who
is immune from such relief." 1915A(b).
DISCUSSION

I.

Screening Under § 1915A
Johnson raises a claim under the Sherman Antitrust Act("Sherman

Act"). Section 1 of the Sherman Act "makes unlawful 'every contract,
combination ... or conspiracy, in restraint of trade or commerce among the
several States.'" Parker v. Brown, 317 U.S. 341, 350 (1943)(quoting 15

U.S.C. § 1). Section 2 of the Act "makes it unlawful to 'monopolize, or attempt
to monopolize, or combine or conspire with any other person or persons, to

monopolize any part of the trade or commerce among the several States.'" Id.
(quoting 15 U.S.C. § 2).

"A prima facie claim of monopolization under the Sherman Act requires
a plaintiff to show that the defendant 'possessed monopoly power in the
relevant market" and "willfully acquired or maintained that power.'" HDC

Med., Inc. v. Minntech Corp., 474 F.3d 543, 547 (8th Cir. 2007)(quoting
Amerinet, Inc. v. Xerox Corp., 972 F.2d 1483, 1490 (8th Cir. 1992)). To make

this showing "a plaintiff must establish that the defendant has a dominant
market share in a well-defined relevant market." Id. (quoting Morgenstem v.

WUson, 29 F.3d 1291, 1296 (8th Cir. 1994)).
Johnson fails to state a claim under the Sherman Act. He does not make

any allegations concerning CBM's market share or any allegations concerning
the relevant market. The "market" CBM operates in is not Mike Durfee State

Prison, but the market of food providers contracting with prisons. Johnson

does not allege that the South Dakota Department of Corrections contracted
with CBM because CBM has a dominant market share of that market.

Therefore, Johnson fails to state a claim under the Sherman Antitrust Act,

and his claim is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(l).i
II.

Strike Under § 1915(g)
Section 1915(g) states:

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 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 of
serious physical injury.
The court finds that Johnson fails to state a claim upon which relief may be

granted, and his claims are dismissed pursuant to 28 U.S.C.

§§ 1915(e)(2)(B)(ii) and 1915A(b)(l). Therefore, Johnson is assessed a second
strike under § 1915(g) for filing this complaint. See Johnson v. Kaemingk et al,
4:14-cv-04068-LLP (dismissing Johnson's complaint with prejudice for failure
to state a claim).
Accordingly, it is ORDERED

1.

Johnson's complaint (Docket 1) is dismissed.

1 To the extent that Johnson seeks to raise a constitutional claim that CBM charges too much

for commissary items, he fails to state a claim. See Atkinson v. Cradduck, No. 5:14-CV-05126,
2015 WL 1138725, at *2 (W.D. Ark. Mar. 13, 2015)(citing cases holding that prisoners have no
constitutional protections from alleged price gouging).

2.

This action constitutes the second strike against Johnson for

purposes of the three-strike rule under 28 U.S.C.§ 1915(g).

Dated this Jjj^day of May,2017.
BY THE COURT:

awrence L. Piersol

ATTEST:

United States Distriet Judge

JOSEPH HAAS,CLERK

BY:

W>
DEPUTY