Walker v. Krebs et al

Filing 10

ORDER granting 3 Motion for Leave to Proceed in forma pauperis; denying 5 Motion for Hearing; granting 6 Motion for Service; denying 7 Motion for Hearing. Signed by U.S. District Judge Lawrence L. Piersol on 7/9/18. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

CLAYTON WALKER,

4:18-CV-04015-LLP

Plaintiff,
ORDER DIRECTING SERVICE

vs.

SHANTEL KREBS, Secretary of State, sued in
her individual and official capacity;
MARTY JACKLEY, Attorney General, sued in
his individual and official capacity; and
KEA WARNE,sued in her official capacity;
Defendants.

On December 29, 2017, plaintiff Clayton Walker, appearing pro se, filed a complaint
alleging defendants violated his right to equal protection. Docket I. Walker filed a motion to

proceed without prepayment of fees and a financial affidavit. Docket 3. Walker also requests
service and a hearing. Dockets 5, 6, and 7.

There is a two-step screening process with in forma pauperis litigants. Martin-Trigona v.
Stewart, 691 F.2d'856, 857 (8th Cir. 1982); see also Key v. Does, 217 F. Supp. 3d 1006, 1006
(E.D. Ark. 2016). First, district courts must determine whether a plaintiff is financially eligible to
proceed in forma pauperis under 28 U.S.C. § 1915(a). Id. Second, district courts are to determine

whether the complaint should be dismissed under 28 U.S.C. § 1915(e)(2)(B). Id.
]

This 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.
Determining whether an applieant is sufficiently impoverished to qualify to proceed in forma

pauperis under § 1915 is committed to the court's discretion. Cross v. Gen. Motors Corp., 721
F.2d 1152,1157(8th Cir. 1983). "In forma pauperis status does not require a litigant to demonstrate

absolute destitution." Lee v. McDonald's Corp., 231 F.3d 456 (8th Cir. 2000). Based upon his
application. Walker indicates that he is currently unemployed and has very limited assets. Docket

3. Considering the information in the financial affidavit, the court finds that Walker has made the
requisite financial showing to proceed in forma pauperis.

But the inquiry does not end there. Under § 1915, the court must review the claims in the

complaint to determine if they are (1) frivolous or malicious; (2) fail to state a claim on which
relief may be granted; or (3) seek monetary relief against a defendant who has immunity. See
28 U.S.C. § 1915(e)(2)(B). At this juncture, the court cannot say the complaint is wholly without

merit. "[P]ro se complaints are to be construed liberally . . . ." Stone v. Harry, 364 F.3d 912, 914
(8th Cir. 2004)(referencing £'.ste//e v. Gamble,429 U.S. 97, 106 (1976)).

The court will grant Walker's motion for service (Docket 6)in light of the court's finding
that Walker is entitled to proceed in forma pauperis. The court will deny as premature the motions

for hearing (Docket 5 and 7), without prejudice to the right of Walker to later file a motion for an
evidentiary hearing if so warranted.
Accordingly, it is ORDERED

1. Plaintiffs motion for leave to proceed in forma pauperis(Docket 3)is granted.
2. Plaintiffs motion for service (Docket 6)is granted.

3. Plaintiff shall complete and send to the Clerk of Court a separate summons and USM285 form for each defendant. Upon receipt of the completed summons and USM-285
forms, the Clerk of Court will issue the summonses. If the completed summons and
USM-285 forms are not submitted as directed, the complaint may be dismissed.
4. The United States Marshal Service shall serve the completed summonses,together with
a copy ofthe complaint and this order, upon defendants.
5. Plaintiffs motions for hearing (Docket 5 and 7) are denied without prejudice.

DATED this ^ * day of July, 2018.
;

BY THE COURT:

ATTEST:

MATTHEW W.THELEN,CLERK

Xt^WRENCE L. PIEF
V^^WRENCE L. PIERSOL
United States District Judge

BY:

(SEAL)

DEPUTY