Johnson et al v Shchepler et al

■lUN U
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
2022
SURGEE RAE JOHNSON, DEBORAH
SUSAN HERRINGTON,
Plaintiffs,
5:22-CV-05044-CBK
ORDER
vs.
CARLA SHCHEPLER, CITY; ROBERT
EVEN, COUNTY SHERIFF; AND LANCE
RUSSELL, STATE DA;
Defendants.
Plaintiffs filed a complaint and an application to proceed informa pauperis
without the prepayment of fees. 28 U.S.C. § 1915(a)(1) authorizes district courts to allow
civil litigants to commence suit without the prepayment of the filing fee. However, other
than in criminal cases, "[a]n informa pauperis litigant's access to the courts is a matter of
privilege, not of right, and should not be used to abuse the process of the courts."
Williams v. McKenzie. 834 F.2d 152, 154 (8th Cir. 1987).
Only plaintiff Johnson submitted an affidavit of resources. The affidavit sets forth
income, assets, and expenses for plaintiff Johnson and "spouse." The complaint and
supplements filed by plaintiff Johnson contend that plaintiff Herrington is currently
incarcerated. It is not clear whether plaintiff Herrington is the "spouse" of plaintiff
Johnson. The affidavit of indigency lists minimal monthly disability income but sets
forth $54,000 in assets. The affidavit avers that plaintiff Johnson supports a father, an
adult brother, and an adult neighbor. The affidavit lists expenses of $5,000 per month for
home maintenance and $8,000 per month for transportation.
Based upon income only, plaintiff Johnson would be entitled to proceed informa
pauperis under 28 U.S.C. § I9I5. The Court is unable to discern whether plaintiffs are
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entitled to proceed informa pauperis without the prepayment ofthe filing fee under 28
U.S.C. § 1915 without further explanation of the dubious expenses and dependents set
forth in the affidavit.
In any event, even if the plaintiffs were entitled to proceed informa pauperis in
this action, the complaint must be dismissed. The district courts are required to screen
complaints filed informa pauperis to determine whether the action
(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)(B). I am required to give the plaintiffs pro se complaint liberal
construction and identify any discemable cognizable claim. Solomon v. Petrav, 795 F.3d
777, 787(8th Cir. 2015). I have conducted an initial review as required by § 1915A.
The complaint arises out of a nuisance complaint filed against plaintiffs in South
Dakota Circuit Court, Seventh Judicial District, Fall River County 23CIV20-000084. I
take judicial notice ofthe records of South Dakota's Unified Judicial System, which are
available on the ecourts portal. In October 2020, the City of Edgemont filed a nuisance
complaint against plaintiffs concerning property in Edgemont. On August 31,2021, the
Circuit Court entered an order of abatement in that case. The Complaint also arises out
of plaintiff Herrington's incarceration. Deborah Herrington pleaded guilty to ingestion of
a controlled substance and driving under the influence in South Dakota Circuit Court,
Seventh Judicial District, Fall River County 23CRI20-234. She was sentenced on
October 2, 2020, to a suspended sentence of five years imprisonment. On January 29,
2021, the suspended sentence was revoked.
To the extent the Court is able to discern the claims made, it appears the claims are
that the defendants, in conjunction with the state court nuisance action, are alleged to
have engaged in harassment, false imprisonment, slander, robbery, discrimination, grand
theft, assault, falsified evidence, operated under a conflict of interest, perjury, false
reports, and other conduct not discemable from the hand-written complaint. In the
statement of claim, plaintiffs alleged plaintiff Herrington was raped by a deputy in 2007,
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and that defendants have been trying to "run [plaintiffs] out oftown." Plaintiffs seek a
cease-and-desist order, plaintiff Herrington's release from prison, and that the defendants
be held accountable for their actions. Plaintiffs ask this Court to investigate the alleged
white-collar corruption in Fall River County. They also seek $15 million in damages.
Plaintiffs submitted, as required, a civil cover sheet wherein it is alleged that
federal jurisdiction is based upon the fact that this action involves a U.S. govemment
plaintiff. It alleges that plaintiffs are citizens ofthe State of South Dakota. Defendants
are alleged to be citizens ofthe State of South Dakota, of another state, of a foreign
nation, and are incorporated or have their principal place of business in South Dakota and
in another state. The nature of the suit is alleged to arise out of contract, land
condemnation, federal employers' liability, drug related seizure of property, bankruptcy,
trademark. Social Security Disability, ERISA, an immigration naturalization application,
an IRS third party claim, civil rights, and the constitutionality of a state statute.
Plaintiffs have failed to coherently allege any basis for federal jurisdiction.
Merely cheeking off one cause of action in every category on the civil cover sheet does
not establish federal jurisdiction. Plaintiffs listing of a litany of defendants' alleged
misconduct, without more, fails to state a claim upon which relief could be granted.
Plaintiffs' complaint, liberally construed, alleges misconduct in connection with state
court criminal and civil judgments. This Court does not, by way of a civil action, act as a
court of appeals to redress alleged misconduct and unfair judgments in state court
proceedings.
Now,therefore,
IT IS ORDERED:
1. The complaint is dismissed for failure to state a claim upon which relief could
be granted.
2. The motion. Doe. 2, to proceed informa pauperis without the prepayment ofthe
filing fee is denied as moot.
3. The motion. Doc. 3, for the appointment of counsel is denied as moot.
4. This dismissal counts as a first strike pursuant to 28 U.S.C. § 1915(g).
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IT IS CERTIFIED pursuant to Fed. R. App.P. 24(a)(3)(A) and 28 U.S.C.
§ 1915(a)(3)that any appeal from this order would not be taken in good faith and
therefore plaintiffs are not entitled to proceed in forma pauperis on appeal.
DATED this / of June, 2022.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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