Schurman v. Payer et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
STEPHANIE SCHURMAN a/k/a
Stephanie Amanda Schurman,
Plaintiff,
vs.
MARK PAYER, in his official capacity;
JIM VHLAHAKIS, in his official
capacity; YANKTON COUNTY JAIL,
Defendants.
4:21-CV-04156-KES
ORDER GRANTING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS AND 1915A SCREENING
Plaintiff, Stephanie Schurman, an inmate at the Yankton County Jail,
filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Docket 1.1 Schurman
moves to proceed in forma pauperis and has included her prisoner trust
account report. Dockets 2, 5.
I. 	Motion to Proceed Without Prepayment of Fees
Schurman reports average monthly deposits of $57.60 and an average
monthly balance of negative $100.80. Docket 5 at 1. Under the Prison
Litigation Reform Act (PLRA), a prisoner who “brings a civil action or files an
appeal in forma pauperis . . . shall be required to pay the full amount of a filing
1 Schurman does not provide facts regarding the reason why she is detained at
the Yankton County Jail or her expected release date. See Docket 1. She
provides an address other than that of the Yankton County Jail as her home
address. Regardless, because she filed a prisoner trust account report and she
claims to be currently incarcerated, this court will treat Schurman as a current
prisoner for purposes of screening under 28 U.S.C. § 1915A. See id. at 3.
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fee.” 28 U.S.C. § 1915(b)(1). “[W]hen an inmate seeks pauper status, the only
issue is whether the inmate pays the entire fee at the initiation of the
proceeding or over a period of time under an installment plan.” Henderson v.
Norris, 129 F.3d 481, 483 (8th Cir. 1997) (quoting McGore v. Wrigglesworth,
114 F.3d 601, 604 (6th Cir. 1997)).
The initial partial filing fee that accompanies an installment plan is
calculated according to 28 U.S.C. § 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.
Based on the information regarding Schurman’s prisoner trust account, the
court grants Schurman leave to proceed without prepayment of fees and waives
the initial partial filing fee. See 28 U.S.C. § 1915(b)(4) (“In no event shall a
prisoner be prohibited from bringing a civil action . . . for the reason that the
prisoner has no assets and no means by which to pay the initial partial filing
fee.”).
In order to pay her filing fee, Schurman must “make monthly payments
of 20 percent of the preceding month’s income credited to the prisoner’s
account.” 28 U.S.C. § 1915(b)(2). The statute places the burden on the
prisoner’s institution to collect the additional monthly payments and forward
them to the court as follows:
After payment of the initial partial filing fee, the prisoner shall be
required to make monthly payments of 20 percent of the preceding
month’s income credited to the prisoner’s account. The agency
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having custody of the prisoner shall forward payments from the
prisoner’s account to the clerk of the court each time the amount in
the account exceeds $10 until the filing fees are paid.
28 U.S.C. § 1915(b)(2). The installments will be collected pursuant to this
procedure. The Clerk of Court will send a copy of this order to the appropriate
financial official at Schurman’s institution. Schurman remains responsible for
the entire filing fee, as long as she is a prisoner. See In re Tyler, 110 F.3d 528,
529-30 (8th Cir. 1997).
II. 	1915A Screening
A. 	Factual Background
The facts alleged in Schurman’s complaint are: that while incarcerated in
the Yankton County Jail, Schurman expressed a concern to Mark Payer, a
Yankton County Jail employee, that her legal mail was not being sent out.
Docket 1 at 3. Schurman alleges that Payer retaliated against her for making
this complaint by instituting a policy charging Schurman and other pro se
litigant inmates 25 cents per page for legal copies and 41 cents per minute for
legal phone calls. Id. Schurman also alleges that pro se litigant inmates are
required to pay for postage and envelopes for legal mail and that they cannot
use postage or envelopes brought to the jail from outside. Id. She claims that
she submitted a grievance to Jim Vhlahakis, a Yankton County Jail employee
who is superior to Payer, but she received no response. Id. She also claims that
she has already paid over $700 into the jail under this policy, that her jail
account balance is currently negative $426.17, and that the Yankton County
Jail is threatening to place a lien on her property because of her negative jail
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account balance. Id. She alleges that she has been unable to pay filing fees for
appeals in cases she is currently litigating and that a habeas corpus petition
she sought to file was denied because it was untimely. Id. at 1, 3.
Schurman brings claims against Mark Payer, Jim Vhlahakis, and the
Yankton County Jail for denial of her right to due process and her right to
access the courts. Id. She also brings claims against Payer, Vhlahakis, and the
Yankton County Jail for retaliation against her for exercising her right to
access the courts. Id. at 3. Schurman does not state the capacity in which she
sues Payer and Vhlahakis. See id. at 1-2. If a plaintiff does not specific the
capacity in which he or she sues a defendant, the suit is treated as only
including official capacity complaints. Egerdahl v. Hibbing Cmty. Coll., 72 F.3d
615, 619 (8th Cir. 1995); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989).
Thus, Schurman sues Payer and Vhlahakis in their official capacities.
Schurman seeks $1,500 to refund what she has paid for phone calls, copies,
postage, and envelopes and $500 to make up for her current negative balance.
Docket 1 at 4.
B. 	Legal Background
The court must assume as true all facts well pleaded in the complaint.
Estate of Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995). Pro se and civil
rights complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89,
94 (2007); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). 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.
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1985); see also 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).
A complaint “does not need detailed factual allegations . . . [but] requires
more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal citations omitted). If it does not contain these bare essentials,
dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir.
1985). Twombly requires that a complaint’s “[f]actual allegations must be
enough to raise a right to relief above the speculative level . . . on the
assumption that all of the allegations in the complaint are true[.]” Twombly,
550 U.S. at 555 (internal citation omitted); see also Abdullah v. Minnesota, 261
F. App’x 926, 927 (8th Cir. 2008) (noting that a “complaint must contain either
direct or inferential allegations respecting all material elements necessary to
sustain recovery under some viable legal theory”). Under 28 U.S.C. § 1915A,
the court must screen prisoner complaints and dismiss them if they “(1) [are]
frivolous, malicious, or fail[] to state a claim upon which relief may be granted;
or (2) seek[] monetary relief from a defendant who is immune from such relief.”
28 U.S.C. § 1915A(b).
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C. 	Legal Analysis
1. 	Claims Against Yankton County Jail
Schurman brings claims against the Yankton County Jail. Docket 1 at 1.
The Eighth Circuit Court of Appeals has held that “county jails are not legal
entities amenable to suit.” Owens v. Scott Cnty. Jail, 328 F.3d 1026, 1027 (8th
Cir. 2003) (per curiam). Also, a county jail “cannot be held vicariously liable for
the actions of its employees.” Larsen v. Minnehaha Cnty. Jail, 2008 WL
4753756, at *2 (D.S.D. Oct. 24, 2008). Thus, Schurman’s claims against the
Yankton County Jail are dismissed without prejudice under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
2. 	Claims Against Payer and Vhlahakis
Schurman brings claims against Payer and Vhlahakis in their official
capacities. See Docket 1 at 2. Payer and Vhlahakis were employees of Yankton
County at the time of the incidents in question. See id. at 2-3. “A suit against a
government officer in his official capacity is functionally equivalent to a suit
against the employing governmental entity.” Veatch v. Bartels Lutheran Home,
627 F.3d 1254, 1257 (8th Cir. 2010). Schurman’s official capacity claims
against Payer and Vhlahakis are equivalent to claims against Yankton County.
“[A] local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents.” Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 694 (1978). “[I]t is when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the injury that the government
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as an entity is responsible under § 1983.” Id.; see also Clay v. Conlee, 815 F.2d
1164, 1170 (8th Cir. 1997) (finding that “the [governmental] entity’s official
‘policy or custom’ must have ‘caused’ the constitutional violation” in order for
that entity to be liable under § 1983).
To establish governmental liability premised on an unofficial custom
rather than an official policy, a plaintiff must allege facts to support a finding of
“a continuing, widespread, persistent pattern of unconstitutional misconduct
by the governmental entity’s employees” and “deliberate indifference to or tacit
authorization of such conduct by the governmental entity’s policymaking
officials after notice to the officials of that misconduct[.]” Brewington v. Keener,
902 F.3d 796, 801 (8th Cir. 2018) (quoting Corwin v. City of Independence, 829
F.3d 695, 700 (8th Cir. 2016)). A § 1983 complaint does not need to
“specifically plead the existence of an unconstitutional policy or custom to
survive a motion to dismiss.” Crumpley-Patterson v. Trinity Lutheran Hosp., 388
F.3d 588, 591 (8th Cir. 2004) (citing Doe ex rel. Doe v. Sch. Dist., 340 F.3d 605,
614 (8th Cir. 2003)). But the complaint must still include some allegation,
reference, or language that creates an inference that the conduct resulted from
an unconstitutional policy or custom. Id.; see also Doe, 340 F.3d at 614 (“At a
minimum, a complaint must allege facts which would support the existence of
an unconstitutional policy or custom.”).
a. 	Access to the Courts Claims
Schurman alleges that Payer and Vhlahakis restricted her right to access
the courts in violation of her First Amendment rights. Docket 1 at 1, 3. “The
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Constitution guarantees prisoners a right to access the courts.” White v.
Kautzky, 494 F.3d 677, 679 (8th Cir. 2007). To succeed on a claim for denial of
access to the courts, a plaintiff must show that she suffered actual injury as a
result of the defendants’ actions. Lewis v. Casey, 518 U.S. 343, 349 (1996). In
order to satisfy the actual injury requirement, a plaintiff must “demonstrate
that a nonfrivolous legal claim had been frustrated or was being impeded.”
Johnson v. Missouri, 142 F.3d 1087, 1089 (8th Cir. 1998) (quoting Lewis, 518
U.S. at 353). Further, because these are official capacity claims, the injury
must be caused by a policy or custom. Clay, 815 F.2d at 1170.
Schurman claims that the cost of copies, mail supplies, and legal phone
calls has kept her from making legal filings. Docket 1 at 3. These costs are set
by Yankton County Jail policy. See id. Further, she identifies a habeas petition
and appeals that have been frustrated by her inability to afford the costs to file
them. Id. at 1, 3. Thus, she has satisfied the actual injury requirement for
screening purposes and shown that the injury was caused by a Yankton
County Jail policy. For purposes of screening, Schurman has alleged sufficient
facts to support a First Amendment access to the courts claim against Payer
and Vhlahakis in their official capacities.
b. 	Retaliation Claims
Schurman alleges that Payer and Vhlahakis retaliated against her for
attempting to exercise her right to access the courts. Id. at 3. Specifically, she
alleges that she complained about her legal mail not being sent, after which
Payer instituted a policy charging inmates for copies, mail supplies, and legal
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phone calls. Id. To allege a First Amendment retaliation claim, a plaintiff must
“show (1) he engaged in a protected activity, (2) the government official took
adverse action against him that would chill a person of ordinary firmness from
continuing in the activity, and (3) the adverse action was motivated at least in
part by the exercise of the protected activity.” Spencer v. Jackson County, 738
F.3d 907, 911 (8th Cir. 2013) (quoting Revels v. Vincenz, 382 F.3d 870, 876
(8th Cir. 2004)). “[T]he plaintiff must show the official took the adverse action
because the plaintiff engaged in the protected [activity].” Revels, 382 F.3d at
876.
Because these claims have been alleged against Payer and Vhlahakis in
their official capacities, Schurman must show that her injury was caused by a
policy or custom under Clay. Although she alleges that Payer retaliated against
her by imposing a policy, she does not allege that the retaliation, which is the
injury in question, was caused by a policy. See Docket 1 at 3. To make such a
claim, Schurman would have to allege that the Yankton County Jail, through
the actions of Payer or Vhlahakis, had a policy of retaliating against inmates
who attempted to engage in protected activities. Schurman makes no
allegations regarding such a policy. Nor does she show that there is an
unofficial custom of retaliation because she does not allege a pattern of
unconstitutional misconduct as required by Brewington. Thus, Schurman’s
First Amendment retaliation claims against Payer and Vhlahakis in their
official capacities are dismissed without prejudice under 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(l).
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c. 	Due Process Claims
Schurman alleges that Payer and Vhlahakis have violated her right to
due process under the Fourteenth Amendment because the negative balance of
her account will result in a lien on her property. Id. at 1. Under the Fourteenth
Amendment, a “State [cannot] deprive any person of life, liberty, or property,
without due process of law[.]” U.S. Const. amend. XIV, § 1. Schurman’s due
process claim under the Fourteenth Amendment fails because she has not yet
suffered a deprivation. Instead, she merely alleges that a lien will result on her
property. See Docket 1 at 1, 3.
Further, even an intentional deprivation of property does not state a due
process claim under the Fourteenth Amendment if there is an adequate post-
deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984). SDCL § 44-2-
9 recognizes a cause of action for the filing of a lien statement without
reasonable grounds, and SDCL § 21-3-3 recognizes a cause of action for
wrongful conversion of personal property. Thus, even if Payer and Vhlahakis
wrongly filed a lien or intentionally deprived Schurman of her property, they
would not have violated her right to due process. Hudson, 468 U.S. at 535.
Schurman’s due process claims against are dismissed under 28 U.S.C.
§§ 1915(e)(B)(ii) and 1915A(b)(1).
Thus, it is ORDERED:
1. 	That Schurman’s motion to proceed in forma pauperis (Docket 2) is
granted.
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2. 	That the institution having custody of Schurman is directed that
whenever the amount in Schurman’s trust account, exclusive of
funds 	available 	to 	her 	in 	her 	frozen 	account, 	exceeds 	$10.00,
monthly payments that equal 20 percent of the funds credited the
preceding month to Schurman’s trust account shall be forwarded to
the U.S. District Court Clerk’s Office under 28 U.S.C. § 1915(b)(1),
until the $402 filing fee is paid in full.
3. 	That Schurman’s motion to electronically file documents (Docket 6)
is granted.
4. 	That Schurman’s First Amendment claims for violation of her right
to access the courts against Mark Payer and Jim Vhlahakis in their
official capacities survive § 1915 screening.
5. 	That 	Schurman’s 	claims 	against 	the 	Yankton 	County 	Jail 	are
dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(l).
6. 	That all of Schurman’s other claims against Payer and Vhlahakis in
their official capacities are dismissed without prejudice under 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
7. 	That the Clerk shall send blank summons forms and Marshal Service
Form (Form USM-285) to Schurman so that she may cause the
complaint to be served upon defendants Payer and Vhlahakis.
8. 	That Schurman shall complete and send the Clerk of Court a
separate summons and USM-285 form for defendants Payer and
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Vhlahakis. Upon receipt of the completed summons and USM-285
forms, the Clerk of Court will issue the summons. If the completed
summons and USM-285 form are not submitted as directed, the
complaint may be dismissed.
9. 	The 	United 	States 	Marshal 	Service 	shall 	serve 	the 	completed
summonses, together with a copy of the complaint (Docket 1) and
this order, upon defendants Payer and Vhlahakis.
10. 	Defendants Payer and Vhlahakis will serve and file an answer or
responsive pleading to the complaint on or before 21 days following
the date of service or 60 days if the defendants fall under Fed. R.
Civ. P. 12(a)(2) or (3).
11. 	Schurman will keep the court informed of her current address at all
times. All parties are bound by the Federal Rules of Civil Procedure
and by the court’s Local Rules while this case is pending.
Dated January 6, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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