Hunter v. "Doe"

Filing 9

ORDER granting 6 Motion for Leave to file an amended complaint; granting 3 Motion for Leave to Proceed in forma pauperis. Signed by Chief Judge Jeffrey L. Viken on 3/30/18. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
MICHAEL HOWARD HUNTER and
CIVIL RIGHTS CENTER OF SOUTH
DAKOTA,
Plaintiffs,
vs.

5:18-CV-05011-JLV

ORDER GRANTING IN FORMA
PAUPERIS AND DISMISSING CASE

CONNIE “DOE,”
Defendant.
On January 31, 2017, plaintiff Michael Howard Hunter, appearing pro
se, filed a complaint on behalf of the Civil Rights Center of South Dakota and
himself. (Docket 1). Mr. Hunter then filed a motion for leave to file an
amended complaint because two pages were inadvertently not included in the
original complaint. (Dockets 6-8). As a preliminary matter, the court must
address the issue of Mr. Hunter’s relationship to the other plaintiff. The law is
clear that Mr. Hunter, as a non-lawyer, may not represent an association or
corporation. 28 U.S.C. § 1654 provides:
In all courts of the United States the parties may plead and
conduct their own cases personally or by counsel as, by the rules
of such courts, respectively, are permitted to manage and conduct
causes therein.
Without variance, every federal appeals court allows an individual, as a
plaintiff, to proceed pro se under § 1654. “As a general matter of federal law,
an individual proceeding in federal court has the right to present his case pro

se . . . .” Leftridge v. Connecticut State Trooper Officer No. 1283, 640 F.3d 62,
67 (2d Cir. 2011) (referencing 28 U.S.C. § 1654). However, it is undisputed law
“for the better part of two centuries . . . that a corporation may appear in the
federal courts only through licensed counsel.” Rowland v. Cal. Men’s Colony,
Unit II Men’s Advisory Council, 506 U.S. 194, 201-02 (1993). Courts have
uniformly held “that 28 U.S.C. § 1654 . . . does not allow corporations,
partnerships, or associations to appear in federal court otherwise than through
a licensed attorney.” Id. at 202. A non-lawyer may not represent an
association or corporation in federal court. Steele v. City of Bemidji, 257 F.3d
902, 905 (8th Cir. 2001). While Mr. Hunter is entitled to represent himself, he
is not permitted to represent the other plaintiff. For these reasons, the court
will only consider Mr. Hunters’ complaint as personal to him.
Mr. Hunter also filed a motion to proceed without prepayment of fees and
a financial affidavit. (Docket 3). Section 1915(a)(1) of Title 28 of the United
States Code directs the court to authorize the commencement of a civil action
without prepayment of fees upon proof of plaintiff's inability to pay. 28 U.S.C.
' 1915(a)(1). In his declaration, plaintiff indicates he is currently unemployed,
receives disability payments, and owns a single vehicle. (Docket 3). The court
finds plaintiff is indigent within the meaning of ' 1915(a)(1).
Proceeding in forma pauperis is governed by 28 U.S.C. ' 1915. That
statute provides:
Notwithstanding any filing fee, . . . the court shall dismiss the case
at any time if the court determines that-...
(B) the action or appeal—
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(i)

is frivolous or malicious;

(ii)

fails to state a claim on which relief may
be granted; or

(iii)

seeks monetary relief against a defendant
who is immune from such relief.

28 U.S.C. ' 1915(e)(2). Subsection (e)(2) allows the court sua sponte to review a
complaint filed with an in forma pauperis application to determine if the action
is frivolous, malicious, fails to state a claim, or seeks monetary relief against a
defendant or defendants who are immune from such relief. Thus, the court is
required to screen a pro se complaint as soon as practicable and to dismiss
those which are frivolous or fail to state a claim for relief. “[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. . . . [the] 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).
Because Mr. Hunter is proceeding pro se, his pleadings 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).
However, a plaintiff seeking to bring a lawsuit in federal court must establish
that the court has subject matter jurisdiction. Mr. Hunter contends this court
has jurisdiction pursuant to 42 U.S.C. § 1983. Section 1983 provides a cause
of action against any “person who, under the color of any statute, ordinance,
regulation, custom, or usage, of any state” causes the deprivation of a right
protected by federal law or the United States Constitution. 42 U.S.C. § 1983.

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As the court construes the amended complaint, Mr. Hunter alleges on
January 30, 2018, he was denied a South Dakota driver’s license by Connie
“Doe,” a state actor, because he did not provide a birth certificate. Docket 7 at
pp. 3-4. Mr. Hunter needs a license to travel as part of a charitable business,
Civil Rights Center of South Dakota. Id. at pp. 2-3. As the court construes the
amended complaint, Mr. Hunter claims Connie Doe’s enforcement of South
Dakota Administrative Rule 61:18:08:02 violates his constitutional right to
travel. S.D. Admin. R. 61:18:08:02 (2017).
The Supreme Court has long recognized a fundamental right to interstate
travel. United States v. Guest, 383 U.S. 745, 757-58 (1966). However,
“[b]urdens on a single mode of transportation do not implicate the right to
interstate travel.” Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999). The
Supreme Court has not “afford[ed] the possession of a driver’s license the
weight of a fundamental right.” Id. Without a right protected by federal law or
the United States Constitution, Mr. Hunter fails to state a claim upon which
relief may be granted.
Mr. Hunter also seeks a declaration that abortion is murder and to
appoint counsel for all unborn children. The complaint fails to name a
defendant Mr. Hunter alleges is responsible for the claimed violation. Since the
complaint does not name a defendant, the court is barred from hearing the
case, as plaintiff fails to allege a genuine case or controversy. Article III of the
United States Constitution limits the power of the federal courts to cases and
controversies. U.S. Const. Art. III, § 2. To establish Article III standing, a
plaintiff must demonstrate that a “case or controversy” exists. Gladstone,
Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979). At a minimum, the
plaintiff must show three elements: (1) an injury in fact, (2) a causal nexus
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between the complained–of conduct and the injury, and (3) redressability of the
injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see
Gladstone 441 U.S. at 99 (“In order to satisfy Art. III, the plaintiff must show
that he personally has suffered some actual or threatened injury as a result of
the putatively illegal conduct of the defendant.”).
Additionally, Mr. Hunter’s request for declaratory relief requires
dismissal of his complaint. As the Supreme Court has stated, “the federal
courts established pursuant to Article III of the Constitution do not render
advisory opinions . . . ‘concrete legal issues, presented in actual cases, not
abstractions,’ are requisite.” Golden v. Zwickler, 394 U.S. 103, 108 (1969)
(quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270,
273 (1941)). Finally, plaintiff is advised that the Supreme Court’s decision in
Roe v. Wade, 410 U.S. 959 (1973), is the law of the land.
Accordingly, it is
ORDERED that Mr. Hunter’s motion to proceed in forma pauperis
(Docket 3) is granted.
IT IS FURTHER ORDERED that the motion to file an amended complaint
(Docket 6) is granted.
IT IS FURTHER ORDERED that the amended complaint (Docket 7) is
dismissed without prejudice for failure to state a claim on which relief may be
granted.
DATED March 30, 2018.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY VIKEN
CHIEF JUDGE

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