Merrival v. Jackley et al
Filing
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ORDER granting 2 Motion for Leave to Proceed in forma pauperis; denying as moot 8 Motion for Leave to Proceed in forma pauperis. Signed by Chief Judge Jeffrey L. Viken on 12/3/18. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
MICHEAL LYNN MERRIVAL, JR.,
5:17-CV-05031-JLV
Plaintiff,
vs.
MARTY J. JACKLEY, ATTORNEY
GENERAL OF SOUTH DAKOTA, in his
individual and official capacity;
PENNINGTON COUNTY, COUNTY OF
THE STATE OF SOUTH DAKOTA, in its
individual and official capacity;
BRIAN MUELLER, CHIEF DEPUTY AT
PENNINGTON COUNTY JAIL, in his
individual and official capacity;
PENNINGTON COUNTY JAIL, COUNTY
JAIL AT PENNINGTON COUNTY, in its
individual and official capacity;
CAPTAIN BROOK HAGA, COUNTY JAIL
CAPTAIN AT PENNINGTON COUNTY
JAIL, in her individual and official
capacity; REBECCA L. MANN,
LAWYER-ATTORNEY-COURT OFFICER
AT PENNINGTON COUNTY OF SOUTH
DAKOTA, in her individual and official
capacity,
ORDER GRANTING
IN FORMA PAUPERIS STATUS
AND DISMISSING CASE
Defendants.
Plaintiff Micheal Merrival, Jr., an inmate at the Pennington County Jail
in Rapid City, South Dakota, filed a second amended complaint against the
defendants. (Docket 6). Mr. Merrival also moves for leave to proceed in forma
pauperis and submitted a current copy of his prisoner trust account report.
(Dockets 7 & 8).
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)
(B)
Id.
the average monthly deposits to the prisoner’s account;
or
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.
In support of his motion, Mr. Merrival provided copies of his prisoner
trust account report signed by an authorized official. (Docket 3). The report
shows an average monthly deposit of $0, an average monthly balance of $0,
and a current balance of $0. Id. Based on this information, the court finds
that Mr. Merrival 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)(1) (“[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,
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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 may be granted” or “seeks monetary
relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).
The court may dismiss a complaint under §§ 1915(e)(2)(B)(ii) and
1915A(b)(1) for failure to state a claim 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.” Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Because Mr. Merrival 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).
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. Davis v. Hall, 992 F.2d 151,
152 (8th Cir. 1993); Parker v. Porter, 221 F. App’x 481, 482 (8th Cir. 2007).
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Mr. Merrival asserts federal jurisdiction based on: 28 U.S.C. § 1343(a)(3),
42 U.S.C. §§ 1983 and 1985 and 28 U.S.C. § 2202. (Docket 6 at p. 1). Mr.
Merrival’s complaint contains three counts.
Count I alleges a violation of the equal protection clause of the
Fourteenth Amendment. (Docket 6 at p. 5). On the complaint form for the
designation of the issues presented, Mr. Merrival checked “Disciplinary
proceeding,” “Medical care,” “Retaliation,” “Access to the court,” “Mail,”
“Property” and “Other: To Prosecute and Exerise[sic] Laws Equally to U.S.
citizen.” Id. He alleges Attorney General “Marty Jackley will not prosecute
violators of South Dakota Law, within all of Mr. Merrival[’]s state court criminal
cases and county jail retaliations.” Id. Mr. Merrival alleges Pennington County
Deputy States Attorney “Lara Roetzel committed perjury against Mr. Merrival’s
attorney-client privileges and work-product doctrine of state law.” Id. He also
claims Pennington County, the Pennington County Jail, Chief Deputy Brian
Mueller and Captain Brook Haga “will not allow Mr. Merrival to be equally
protected by the attorney-client privileges and work-product doctrine of a selfrepresentative.” Id. The amended complaint alleges Attorney Rebecca Mann
“made all the above violators to make and enforce a law to [r]etaliated [sic]
against Mr. Merrival’s privileges and immunities of state and federal law.” Id.
He further alleges Ms. Mann “made her clients violate Mr. Merrival in a
retaliation conduct against Mr. Merrival’s legal and state and federal privileges
and immunities of Attorney-Client Privileges and Work-Product Doctrines.”
Count II alleges a violation of the privileges and immunities clause of the
Fourteenth Amendment. Id. at p. 6. On the complaint form for the designation
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of the issues presented, Mr. Merrival checked “Disciplinary proceeding,”
“Medical care,” “Retaliation,” “Access to the court,” “Mail,” “Property” and
“Other: Self-Representation of a U.S. citizen.” Id. Mr. Merrival alleges Mr.
Jackley, Pennington County, Pennington County Jail, Chief Deputy Mueller
and Captain Haga deprived him of the privileges and immunities of “acting as a
self-representative” with the “work-product doctrine” in his own legal matters.
Id. Plaintiff claims after he filed a federal civil lawsuit in 2015, Attorney Mann
“made her clients retaliate against Mr. Merrival by making and enforcing a law
to obstruct, impede, deprive, abridge the privileges and immunities of AttorneyClient privileges and Work-Product Doctrine not attached and not protected.”
Id. The amended complaint alleges “Attorney . . . Mann conspired with all the
above defendants, her clients, to injure, obstruct, damage, deprive Mr.
Merrival’s Self-Representative’s privileges and immunities of Attorney-Client
Privileges and Work-Product Doctrine of state legal procedures matters and
federal legal proceeding’s matters in Court.” Id. The complaint alleges “Ms.
. . . Mann allowed her clients to retaliate[] against Mr. Merrival’s lawsuit
proceeding by conspiring with them to obstruct, deprive, and abridge Mr.
Merrival’s Attorney-Client Privileges and Work-Product Doctrine’s privileges
and immunities as a self-representative in all Mr. Merrival’s legal matters.” Id.
Count III alleges violation of “the right to due process of law, to life,
liberty, property of the (14th) Fourteenth Constitutional Amendment, [and]
conspired against the Declaratory Judgment Act of 28 U.S.C.A. § 2202.” Id. at
7. On the amended complaint form for the designation of the issues presented,
Mr. Merrival checked “Disciplinary proceeding,” “Retaliation,” “Access to the
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court,” “Mail,” “Property” and “Other: Self-Representation of a U.S. citizen.” Id.
Mr. Merrival alleges “Attorney . . . Mann and all her clients or who are
defendants, Marty J. Jackley, Pennington County, Pennington County Jail,
Chief Deputy Brian Mueller, [and] Captain Brook Haga, all conspired together
to deprive . . . , obstruct, abridge, damage Mr. Merrival’s right to Due Process of
Law to life, liberty, property to proceed in state and federal courts with, and to
due process, to protections of privileges and immunities of a self-representative
in all legal matters, to be guaranteed Due Process of Law.” Id. While
incarcerated at the Pennington County Jail, Mr. Merrival alleges he acted as
his own attorney in “all legal proceedings and files pleadings, [and] motions.”
Id. Mr. Merrival claims he was “denied mailing them to the courts because [he]
cannot afford large mila [sic] envelopes.” Id. The complaint alleges “all the
Defendants will stop his due process because of local county jail rules of
holding . . . limited legal documents.” Id. The complaint claims “Mr. Merrival
trie[d] to send large documental work-product to be due processed and the
Defendants conspire[d] to discipline Mr. Merrival and keep Mr. Merrival to not
process his self-represented work-products.” Id. Plaintiff alleges defendants
“conspire[d] to take legal resources away and keep Mr. Merrival to not process
his self-represented work-products.” Id. He claims the defendants “deprive[d]
Mr. Merrival due process to grant motions under the Declaratory Judgment
Act.” Id.
Mr. Merrival fails to state a claim against Pennington County. “A local
government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents on a theory of respondeat superior.” Andrew v. Fowler,
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98 F.3d 1069, 1074 (8th Cir. 1996) (citing Monell v. Dep’t. of Soc. Servs. of the
City of New York, 436 U.S. 658 (1978)). Rather, a county may be liable for
violation of constitutional rights if the violation was caused by its customs or
policies. Crawford v. Van Buren Cty., Arkansas, 678 F.3d 666, 669 (8th Cir.
2012) (Quoting Rynders v. Williams, 650 F.3d 1188, 1195 (8th Cir. 2011)). Mr.
Merrival does not allege any custom or policy of the county that violated his
constitutional rights. Mr. Merrival’s claims against Pennington County are
dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failing
to state a claim upon which relief may be granted.
Mr. Merrival also fails to state a claim against the Pennington County
Jail. “[C]ounty jails are not legal entities amenable to suit.” Owens v. Scott
County Jail, 328 F.3d 1026, 1027 (8th Cir. 2003). Mr. Merrival’s claims
against the Pennington County Jail are dismissed pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failing to state a claim upon which relief
may be granted.
The complaint alleges a conspiracy among the individual defendants to
deprive Mr. Merrival of several constitutional rights in his attempts to represent
himself in legal matters. Conspiracy to interfere with another person’s civil
rights cited by plaintiff is addressed in 42 U.S.C. § 1985. That section provides
in part:
Depriving persons of rights or privileges[.] If two or more persons in
any State . . . conspire . . . for the purpose of depriving, either directly
or indirectly, any person or class of persons of the equal protection
of the laws, or of equal privileges and immunities under the laws
. . . the party so injured or deprived may have an action for the
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recovery of damages occasioned by such injury or deprivation,
against any one or more of the conspirators. . . .
42 U.S.C. § 1985(3). “The basis of federal jurisdiction for violations of . . .
§ 1985 is 28 U.S.C. § 1343.” Runs After v. United States, 766 F.2d 347,
353 (8th Cir. 1985). Section 1343 confers original jurisdiction in the district
court over a civil action:
(1)
To recover damages for injury to his person or property, or
because of the deprivation of any right or privilege of a citizen
of the United States, by any act done in furtherance of any
conspiracy mentioned in [42 U.S.C. § 1985);
(2)
To recover damages from any person who fails to prevent or to
aid in preventing any wrongs mentioned in [42 U.S.C. § 1985]
which he had knowledge were about to occur and power to
prevent;
(3)
To redress the deprivation, under color of any State law,
statute, ordinance, regulation, custom or usage, of any right,
privilege or immunity secured by the Constitution of the
United States or by any Act of Congress providing for equal
rights of citizens or of all persons within the jurisdiction of the
United States; and
(4)
To recover damages or to secure equitable or other relief under
any Act of Congress providing for the protection of civil rights,
including the right to vote.
28 U.S.C. §§ 1343(a)(1)-(4).
“In each section 1985 case it must be determined whether there is a
constitutional source of congressional power to reach the private conspiracy
alleged in the complaint.” Means v. Wilson, 522 F.2d 833, 838 (8th Cir. 1975).
“[I]n order to show a deprivation of equal protection or equal privileges and
immunities which may be redressed under 42 U.S.C. § 1985(3), it must be
shown that the conspirators were motivated by an invidiously discriminatory
animus toward a racial group or perhaps another type of class.” Id. at 839.
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Mr. Merrival has not alleged the actions of the individually named
defendants were a private conspiracy premised on class or race. Without that
predicate, § 1985 does not provide a remedy to plaintiff and 28 U.S.C. § 1343
does not establish jurisdiction in federal court. Runs After, 766 F.2d at 353.
The court next considers Mr. Merrival’s claims under 42 U.S.C. § 1983.
A district court has “original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The
Civil Rights Act provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress,
except that in any action brought against a judicial officer for an act
or omission taken in such officer’s judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.
42 U.S.C. § 1983.
“The traditional definition of acting under color of state law requires that
the defendant in a § 1983 action have exercised power ‘possessed by virtue of
state law and made possible only because the wrongdoer is clothed with the
authority of state law.’ ” Parker v. Boyer, 93 F.3d 445, 447–48 (8th Cir. 1996)
(emphasis added) (quoting West v. Atkins, 487 U.S. 42, 49 (1988) (further
citations omitted). “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.” Jones v. United States,
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16 F.3d 979, 981 (8th Cir. 1994). For an individual to be liable under § 1983
that person must have acted “under color of any statute, ordinance, regulation,
custom, or usage, of any State.” 42 U.S.C. § 1983.
Mr. Merrival alleges Attorney Mann was “employed as a lawyer-attorneycourt officer at Pennington County of South Dakota.” (Docket 6 at p. 3).
Attorney Mann, as a private practice attorney, represented the Pennington
County defendants in Mr. Merrival’s previous lawsuit. See Merrival v. South
Dakota, Civ. 15-5023-JLV (D.S.D. 2015).
Private attorneys are generally not considered to have acted under color
of state law when representing their clients. See Polk Cty. v. Dodson, 454 U.S.
312, 325 (1981) (holding that with respect to a § 1983 claim, “a public defender
does not act under color of state law when performing a lawyer’s traditional
functions as counsel to a defendant in a criminal proceeding”). Individuals
who would otherwise not be considered state actors may be considered to have
acted under color of state law when they conspire with state actors to deprive
an individual of their federal rights in violation of § 1983. See Tower v. Glover,
467 U.S. 914, 920 (1984); Carlson v. Roetzel & Andress, 552 F.3d 648, 651
(8th Cir. 2008).
In order for private actors to be considered to have acted under color of
state law by conspiring with state actors, the complaint must “adequately
allege[] that Private Defendants were ‘willful participant[s] in joint activity with
the State or its agents’ in denying the [plaintiff’s] constitutional rights[.]”
McCoy v. Carter-Jones Timber Co., 2009 WL 3713697, at *1 (8th Cir. Nov. 9,
2009) (unpublished opinion) (alteration in original) (citing Dossett v. First State
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Bank, 399 F.3d 940, 947 (8th Cir. 2005)). Mr. Merrival alleges Attorney Mann
both conspired with the other defendants and at times even directed them to
retaliate against Mr. Merrival. The court will evaluate Mr. Merrival’s claims
against Attorney Mann under § 1983.
In count I of the amended complaint, Mr. Merrival alleges defendants
violated the equal protection clause of the Fourteenth Amendment. (Docket 6
at p. 5). Mr. Merrival fails to allege how defendants “deprived Mr. Merrival’s
equal protection to the laws.” Id. To the extent Mr. Merrival intended count I
to raise a retaliation claim, he fails to state a claim of retaliation upon which
relief may be granted. “At a minimum . . . a complaint must contain facts
sufficient to state a claim as a matter of law and must not be merely conclusory
in its allegations.” Springdale Education Association v. Springdale School
District, 133 F.3d 649, 651 (8th Cir. 1998). A complaint that fails to “allege
sufficient facts upon which a retaliatory animus could be inferred” should be
dismissed. Atkinson v. Bohn, 91 F.3d 1127, 1129 (8th Cir. 1996). Mr.
Merrival does nothing more than allege defendants retaliated against him. Mr.
Merrival has not pleaded sufficient facts to state a claim. Count I is dismissed
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
In count II of the amended complaint, Mr. Merrival alleges defendants
violated the privileges and immunities clause of the Fourteenth Amendment.
(Docket 6 at p. 6). The privileges and immunities clause provides: “[n]o state
shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States . . . .” U.S. Const. Amend. XIV, § 1. The
privileges and immunities clause has been narrowly construed and is
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associated primarily with the right to interstate travel. See, e.g., Saenz v. Roe,
526 U.S. 489 (1999). Mr. Merrival fails to identify a federal right protected by
the privileges and immunities clause that has been violated or how the
defendants violated this right. The court must liberally construe Mr. Merrival’s
pro se pleadings, but the court is not required to formulate Mr. Merrival’s
arguments for him. Mr. Merrival has not articulated a privileges and
immunities claim. Count II fails to state a claim upon which relief may be
granted. Count II is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1).
In count III of the amended complaint, Mr. Merrival alleges defendants
violated his right to due process. (Docket 6 at p. 7). “ ‘[T]o prevail on a
Fourteenth Amendment due process claim, [Mr. Merrival] must first
demonstrate that he was deprived of life, liberty or property by government
action.’ ” Ballinger v. Cedar Cty., Mo., 810 F.3d 557, 562 (8th Cir. 2016) (citing
Phillips v. Norris, 320 F.3d 844, 846 (8th Cir. 2003)). Mr. Merrival claims a
deprivation of property that infringes on his right of access to the courts.
It is well established “that prisoners have a constitutional right of access
to the courts.” Bounds v. Smith, 430 U.S. 817, 821 (1977). To prevail on an
access to the courts claim, a prisoner must establish that he has sustained “an
actual injury.” Moore v. Plaster, 266 F.3d 928, 933 (8th Cir. 2001) (citing
Klinger v. Department of Corrections, 107 F.3d 609, 617 (8th Cir. 1997)). To
demonstrate “actual injury,” the prisoner must show “ ‘that a nonfrivolous legal
claim had been frustrated or was being impeded.’ ” Id. (citing Johnson v.
Missouri, 142 F.3d 1087, 1089 (8th Cir. 1998)).
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Mr. Merrival fails to allege a nonfrivolous legal claim was frustrated or
impeded by the defendants. Count III alleges he was denied the right to mail
his court pleadings because he could not afford large manila envelopes.
(Docket 6 at p. 7). He fails to identify who denied him the right to mail his
pleadings to the court. Id. Mr. Merrival alleges all of the defendants use the
“local county jail rules” that limit the number of documents he can possess.
Id. He does not explain how defendants used this rule to deny him due
process. Count III has not pleaded sufficient facts to state a claim. Count III is
dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Based on the analysis above, it is
ORDERED that Mr. Merrival’s motion to proceed in forma pauperis
(Docket 2) is granted.
IT IS FURTHER ORDERED that plaintiff’s motion to proceed in forma
pauperis (Docket 8) is denied as moot.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), the
institution having custody of Mr. Merrival shall, whenever the amount in Mr.
Merrival’s inmate 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 the Clerk of Court is directed to send a
copy of this order to the appropriate official at plaintiff’s institution.
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IT IS FURTHER ORDERED that pursuant to §§ 1915(e)(2)(B)(ii) and
1915A(b)(1) the second amended complaint (Docket 6) is dismissed without
prejudice for failure to state a claim upon which relief may be granted.
Dated December 3, 2018.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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