Mousseau v. Vargo et al

Filing 5

ORDER Dismissing Case. Signed by Chief Judge Jeffrey L. Viken on 12/8/14. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
SHAWN RAY MOUSSEAU,
Plaintiff,
vs.

CIV. 14-5081-JLV
ORDER GRANTING IN FORMA
PAUPERIS AND DISMISSING CASE

STATES ATTORNEY MARK VARGO,
in his individual capacity;
LAURA SHATICK, States Attorney at
Prosecution Office in her individual
capacity;
WILL WILLIAMS, Prosecutor at States
Attorney Office in his individual
capacity;
CAPTAIN HAGA, at the Pennington
County Jail in her individual capacity;
SGT. HOUSTON;
UNITED STATES OF AMERICA;
PENNINGTON COUNTY JAIL; and
SHERIFF’S DEPARTMENT,
Defendants.
On November 3, 2014, plaintiff Shawn Mousseau, an inmate at the
Pennington County Jail in Rapid City, South Dakota, filed a multiple count
complaint against the defendants. (Docket 1). Mr. Mousseau 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. Mousseau 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 $0.00, 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. Mousseau 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. Mousseau 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. Mousseau used a Civil Rights Complaint By A Prisoner form. (Docket
1). Under Section A. Jurisdiction, Mr. Mousseau 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. Mousseua intended to bring this action under
§ 1983 or Bivens.

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Mr. Mousseau’s complaint contains three separate counts. Count 1
alleges his “constitutional rights[,] [my] civil rights as a human being were
violated.” (Docket 1 at p. 4). On the complaint form for designation of the
issues presented Mr. Mousseau did not identify the specific nature of the claim.
Mr. Mousseau claims the States Attorney’s Office is targeting Lakota people for
abuse because his people own the Black Hills. Id. Mr. Mousseau claims
injuries of “stress, delutional, headaches, cant sleep, traumatize, stress,
mental.” Id.
Count 2 alleges Mr. Mousseau’s “constitutional rights [were] violated[,]
civil rights as a human being violated.” Id. at p. 5. On the complaint form for
designation of the issues presented Mr. Mousseau checked “medical care.” Id.
He alleges that at the time of his arrest he was placed in the Pennington County
Jail. Id. He alleges when he asked for medical attention Captain Haga denied
him the medical attention he needed and then she and Sergeant Houston placed
him in administrative lockdown for no reason. Id. Mr. Mousseau claims
injuries of “stress, mental, traumatize, could not sleep[,] emotional distress.”
Id.
Count 3 alleges Mr. Mousseau’s “constitutional rights[,] civil rights as a
human being were violated.” Id. at p. 6. On the complaint form for designation
of the issues presented Mr. Mousseau checked “retaliation.” Id. He alleges
that Captain Haga dresses jail inmates in the same fashion Adolph Hitler did
before he “placed the Jews in a concentration camp . . . .” Id. He alleges
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Captain Haga places prisoners in “pink socks[,] pink underwear & shirts” to
discriminate against people of color as “a member of the K.K.K.” Id. Mr.
Mousseau claims injuries of “emotional stress, mental, traumatize.” Id.
In the request for relief section of the complaint form, Mr. Mousseau 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. The
claims against the defendants who are or may be considered state actors are the
only individuals against whom Mr. Mousseau could pursue a § 1983 claim.
Mr. Mousseau asserts claims against three prosecutors in the Pennington
County States Attorney’s Office. (Docket 1 at p. 2). Absolute immunity shields
prosecutors from civil liability “for prosecutorial functions such as the initiation
and pursuit of a criminal prosecution, the presentation of the [government’s]
case, and other conduct that is intimately associated with the judicial process.”
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Anderson v. Larson, 327 F.3d 762, 768 (8th Cir. 2003). The court finds Mr.
Vargo, Ms. Shattuck and Mr. Williams are entitled to absolute immunity for
claims arising out of their prosecution of Mr. Mousseau.
Concerning Mr. Mousseau’s claims against Captain Haga and Sergeant
Houston, “[t]o prevail on an Eighth Amendment claim, an inmate must show
both an objective element, that the deprivation was sufficiently serious, and a
subjective element, that the defendant acted with a sufficiently culpable state of
mind.” Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997) (citations omitted).
“In a deprivation of medical care case, an inmate must show that the prison
official was deliberately indifferent to the inmate’s serious medical needs.” Id.
(citing Camberos v. Branstad, 73 F.3d 174, 175 (8th Cir. 1995)). “A serious
medical need is ‘one that has been diagnosed by a physician as requiring
treatment, or one that is so obvious that even a layperson would easily recognize
the necessity for a doctor’s attention.’ ” Coleman, 114 F.3d at 784 (quoting
Camberos, 73 F.3d at 176)). “The determination whether a medical need is
sufficiently obvious” requires an analysis of “[t]he prison officials’ background
knowledge.” Jones v. Minn. Dep’t of Corr., 512 F.3d 478, 482 (8th Cir. 2008).
“When an inmate alleges that a delay in medical treatment constituted a
constitutional deprivation, ‘the objective seriousness of the deprivation should
also be measured by reference to the effect of delay in treatment.’ ” Coleman,
114 F.3d at 784 (quoting Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir.
1997)).
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To establish deliberate indifference, an inmate must demonstrate a prison
official knew the “inmate face[d] a substantial risk of serious harm and
disregard[ed] that risk by failing to take reasonable measures to abate it.”
Coleman, 114 F.3d at 785 (citing Farmer v. Brennen, 511 U.S. 825, 847 (1994)).
“ ‘[T]he failure to treat a medical condition does not constitute punishment
within the meaning of the Eighth Amendment unless prison officials knew that
the condition created an excessive risk to the inmate’s health and then failed to
act on that knowledge.’ ” Id. (citing Long v. Nix, 86 F.3d 761, 765 (8th Cir.
1996)).
Mr. Mousseau fails to articulate the existence of a serious medical need
and that the jail personnel failed to properly act upon that serious medical need.
Coleman, 114 F.3d at 784. There are no specific allegations rising to the level of
a constitutional right charged against those defendants sued in their individual
capacity.
The remaining allegations in the complaint are so scattered in time,
events, relationships and historical settings that no constitutional claim exists.
Mr. Mousseau has no individual constitutional right in the claims made.
A Bivens claim is a constitutional claim brought against federal officials
acting under color of federal law, rather than 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
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Bivens action or a § 1983 action.” Abebe v. Seymour, C.A. No. 3-12-377JFA-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 . . . . ”
Chavez-Garcia v. Kopf, No. 4:06cv3114, 2006 WL 1401686 at *1 (D. Neb. May 18,
2006). “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. Mousseau’s claims against the United States.
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.
Mousseau 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
that was dismissed on the grounds that it is frivolous, malicious, or
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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. Mousseau’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. Mousseau shall, whenever the amount in Mr.
Mousseau’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. Mousseau for purposes of the three-strike rule under 28 U.S.C.
§ 1915(g).
Dated December 8, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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