Little v. State of South Dakota et al

Filing 5

ORDER Dismissing Case. Signed by Chief Judge Jeffrey L. Viken on 11/17/14. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JEREMIAH LITTLE,
Plaintiff,
vs.

CIV. 14-5069-JLV
ORDER GRANTING IN FORMA
PAUPERIS AND DISMISSING CASE

STATE OF SOUTH DAKOTA;
U.S. GOVERNMENT, individual
capacity; PENNINGTON COUNTY
SHERIFFS DEPT., individual capacity;
PENNINGTON COUNTY JAIL;
DEPUTIE SCHMIDT;
CAP. HAGA, individual capacity;
SGT. ANDERSON, individual capacity;
RAPID CITY POLICE DEPARTMENT;
REGINAL WEST; C.O. MEYERS; and
PUBLIC DEFENDER DANIEL LEON,
Defendants.
On October 15, 2014, plaintiff Jeremiah Little, an inmate at the
Pennington County Jail in Rapid City, South Dakota, filed a multiple count
complaint against the defendants. (Docket 1). Mr. Little also moves for leave to
proceed in forma pauperis and submitted a current copy of his prisoner trust
account report. (Dockets 2 & 4).
Section 1915 of Title 28 of the United States Code, as amended by the
Prison Litigation Reform Act (PLRA), governs proceedings filed in forma
pauperis. When a prisoner files a civil action in forma pauperis, the PLRA
requires a prisoner to pay an initial partial filing fee when possible. See
28 U.S.C. § 1915(b)(1). The initial partial filing fee is calculated according to
§ 1915(b)(1), which requires a payment of 20 percent of the greater of:

(A) the average monthly deposits to the prisoner’s account; or
(B) 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.
Id. In support of his motion, Mr. Little provided a copy of his prisoner trust
account report signed by an authorized prison official. (Docket 4). The report
shows an average monthly deposit for the past six months of $8.00, an average
monthly balance for the past six months of $0.00, and a current balance of
$0.00. Id. In light of this information, the court finds Mr. Little is indigent,
qualifies for in forma pauperis status, and is not required to make an initial
partial filing fee payment. These findings do not discharge the $350 filing fee,
but rather allow a prisoner the opportunity to pay the filing fee in installments.
See 28 U.S.C. § 1915(b) (“[I]f a prisoner brings a civil action or files an appeal in
forma pauperis, the prisoner shall be required to pay the full amount of the filing
fee.”).
Under 28 U.S.C. § 1915A, the court must review a prisoner complaint and
identify cognizable claims or dismiss the complaint if it is frivolous, malicious, or
fails to state a claim upon which relief may be granted. This screening process
“applies to all civil complaints filed by [a] prisoner[], regardless of payment of
[the] filing fee.” Lewis v. Estes, 242 F.3d 375 at *1 (8th Cir. 2000) (unpublished)
(citing Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999). During this initial
screening process, the court must dismiss the complaint in its entirety or in part
if the complaint is “frivolous, malicious, or fails to state a claim upon which relief

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may be granted” or “seeks monetary relief from a defendant who is immune from
such relief.” 28 U.S.C. § 1915A(b).
“[A] complaint, containing as it does both factual allegations and legal
conclusions, is frivolous where it lacks an arguable basis either in law or in
fact. . . . § 1915(d)’s term ‘frivolous,’ when applied to a complaint, embraces not
only the inarguable legal conclusion, but also the fanciful factual allegation.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). The court may dismiss a
complaint under § 1915(e)(2)(B)(i) and § 1915A(b)(1) as frivolous as “the statute
accords judges not only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual power to pierce the
veil of the complaint’s factual allegations and dismiss those claims whose
factual contentions are clearly baseless.” Id. at 327.
Because Mr. Little is proceeding pro se, his pleading must be liberally
construed and his complaint, “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted).
Mr. Little used a Civil Rights Complaint By A Prisoner form. (Docket 1).
Under Section A. Jurisdiction, Mr. Little did not check the box asserting
jurisdiction under 1(a) 28 U.S.C. § 1343(a)(3), or 42 U.S.C. § 1983; or 1(b)
28 U.S.C. § 1331; or Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S.
388 (1971); or 1(c) Other. Id. at p. 1(A)(1)(a), (b) & (c). For the following
analysis, the court presumes Mr. Little intended to bring this action under
§ 1983 or Bivens.

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Mr. Little’s complaint contains three separate counts. Count 1 alleges his
“constitutional rights were violated[, my] civil rights as a human being.” (Docket
1 at p. 4). On the complaint form for designation of the issues presented Mr.
Little checked “retaliation.” Id. Mr. Little claims the sheriff’s office is
targeting Lakota people for abuse because his people own the Black Hills. Id.
He also alleges the sheriff’s office takes away Lakota children to torment him and
as racists they conduct video surveillance in the jail. Id. Mr. Little claims
injuries of “stress, headaches, traumatized, indeludegenal [sic] stress, mental.”
Id.
Count 2 alleges Mr. Little’s “constitutional rights were violated[,] civil
rights as a human being.” Id. at p. 5. On the complaint form for designation of
the issues presented Mr. Little checked “retaliation.” Id. He alleges that
throughout his entire life the Rapid City Police Department has been harassing
him as a Lakota person. Id. He alleges the police department and its officers
are harassing and killing his people. Id. Mr. Little alleges Regional West gave
out confidential information about him. Id. Mr. Little claims injuries of
“mental stress, headaches[,] traumatized.” Id.
Count 3 alleges Mr. Little’s “constitutional rights were violated[,] civil
rights as a human being were violated.” Id. at p. 6. On the complaint form for
designation of the issues presented Mr. Little checked “retaliation.” Id. He
alleges the public defender provided ineffective assistance of counsel in
preparation for trial. Id. Mr. Little alleges his due process rights are being
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violated because he wants to go to trial and his attorney wants him to take a plea
offer. Id. Mr. Little claims injuries of “stress, emotional suffering and pain,
headaches, mental delution [sic].” Id.
In the request for relief section of the complaint form Mr. Little seeks
money damages of one million dollars. Id. at p. 7.
A claim under § 1983 requires a plaintiff to allege and prove the defendants
were acting under color of state law in depriving the plaintiff of a right secured by
the Constitution of the United States. “Every person who, under color of any
statute [or] regulation . . . of any State . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights . . . secured by
the Constitution and laws, shall be liable to the party injured in an action at law
. . . .” 42 U.S.C. § 1983. Section 1983 does not confer subject matter
jurisdiction. The statute simply provides a means through which a claimant
may seek a remedy in federal court for a constitutional tort when one is aggrieved
by the act of a person acting under color of state law. 42 U.S.C. § 1983.
“[T]he Eleventh Amendment bars suit against the state or state officials
acting in their official capacity.” Morstad v. Department of Corrections and
Rehabilitation, 147 F.3d 741, 743 (8th Cir. 1998) (referencing Kentucky v.
Graham, 473 U.S. 159, 169 (1985)). A suit will be allowed to proceed, however,
if the state has waived immunity. See Morstad, 147 F.3d at 744. South
Dakota has not waived its immunity to suit under the Eleventh Amendment.

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The claims against the defendants who are or may be considered state
actors are the only individuals against whom Mr. Little could pursue a § 1983
claim. There are no specific allegations rising to the level of a constitutional
right charged against those defendants sued in their individual capacity. The
allegations in the complaint are scattered in time, events, relationships and
historical settings that no cognizable constitutional claim exists. Mr. Little has
no individual constitutional right in the claims made. Mr. Little’s claims against
Regional West and Public Defender Leon similarly are incoherent so no
cognizable constitutional claim exists. Mr. Little has no individual
constitutional right in the claims made.
Federal officials do not act under state law. A Bivens claim is a
constitutional claim brought against federal officials acting under color of federal
law, rather that state officials acting under color of state law. See Bivens, 403
U.S. 388 (1971). “[A] Bivens action is analogous to a claim under 42 U.S.C.
§ 1983. The law developed under the two doctrines applies equally to the two
types of cases, regardless of whether the action is a Bivens action or a § 1983
action.” Abebe v. Seymour, C.A. No. 3-12-377-JFA-KDW, 2012 WL 1130667 at
*2, n.3 (D.S.C. April 4, 2012) (citing Wilson v. Layne, 526 U.S. 603, 609 (1999)).
A Bivens action “may not be asserted against the United States, its
agencies, or against federal employees in their official capacity.” Chavez-Garcia
v. Kopf, No. 4:06cv3114, 2006 WL 1401686 at *1 (D. Neb. May 18, 2006)
(emphasis in original) (holding a Bivens action did “not state a viable cause of
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action” against a federal district judge in his or her official capacity). A claim
against a defendant in his or her official capacity is a suit against the United
States. “A claim cannot be brought against the United States unless the United
States waives its sovereign immunity and consents to be sued. The United
States has not waived its sovereign immunity in Bivens actions.” Dockery v.
Miller County Sheriff's Dept., Civil No. 4:10-cv-4070, 2011 WL 4975185 at *4
(W.D. Ark. Sept. 12, 2011).
The court finds the doctrine of sovereign immunity bars Mr. Little’s
claims against the United States government and any federal defendants sued in
either their individual or official capacities. Claims against agencies of the
United States government are claims against the United States. Sovereign
immunity bars those claims as well.
Before dismissing a complaint for failure to state a claim upon which
relief may be granted pursuant to the screening provisions of 28 U.S.C.
§§ 1915 and 1915A, the court must grant plaintiff leave to amend his complaint,
unless amendment would be inequitable or futile. In this instance, Mr. Little
cannot amend his complaint to allege a valid § 1983 claim or Bivens claims
involving the general nature of the topics alleged.
The court finds plaintiff’s complaint is frivolous and fails to state a claim
upon which relief can be granted. Section 1915(g) states as follows:
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
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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.
28 U.S.C. § 1915(g). Accordingly, it is hereby
ORDERED that Mr. Little’s motion for leave to proceed in forma pauperis
(Docket 2) is granted.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), the
institution having custody of Mr. Little shall, whenever the amount in Mr. Little’s
trust account exceeds $10, forward monthly payments that equal 20 percent of
the funds credited to the account the preceding month to the Clerk of Court for
the United States District Court, District of South Dakota, until the $350 filing
fee is paid in full.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)
and 1915A(b)(1), plaintiff’s complaint (Docket 1) is dismissed as frivolous and
for failing to state a claim upon which relief can be granted.
IT IS FURTHER ORDERED that this action constitutes a first strike
against Mr. Little for purposes of the three-strike rule under 28 U.S.C.
§ 1915(g).
Dated November 17, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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