Knode v. Erickson et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ANDREW DWIGHT KNODE,
Plaintiff,
vs.
OFFICER JOSEPH ERICKSON, in his
individual and official capacity,
OFFICER KYLER PEKAREK, in his
individual and official capacity, and
STATE OF SOUTH DAKOTA,
Defendants.
4:19-CV-04181-KES
ORDER GRANTING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS AND 1915A SCREENING
Plaintiff, Andrew Dwight Knode, filed a pro se civil rights lawsuit under
42 U.S.C. § 1983. Docket 1. He filed an amended complaint and a supplement.
Dockets 3, 8. Knode moves for leave to proceed in forma pauperis and included
his prisoner trust account report. Dockets 4, 5. He also moves for appointment
of counsel and for copies. Dockets 6, 7.
I. 	Motion to Proceed In Forma Pauperis
Knode reports average monthly deposits of $0.00 and an average
monthly balance of negative $159.86. Docket 5. 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 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 proceedings or
over a period of time under an installment plan.’ ” Henderson v. Norris, 129
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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.
28 U.S.C. § 1915(b)(1)(A-B). Based on the information regarding Knode’s
prisoner trust account, the court grants Knode leave to proceed in forma
pauperis 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 his filing fee, Knode 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
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.
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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 Knode’s institution. Knode remains responsible for the
entire filing fee, as long as he 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 Knode’s complaint are: that on January 17, 2018,
Knode was pulled over by Yankton Police Officers Joseph Erickson and Kyler
Pekarek. Docket 3 at 3. The traffic stop was based on a tip of dangerous
driving, and Knode was arrested for driving under the influence. Id. Erickson
asked Knode to voluntarily give a blood sample; Knode refused. Id.
Erickson applied for a search warrant (for the blood sample), and it was
signed by the Honorable Patrick Smith. Id. Erickson’s police report notes that
Knode was taken to the Avera Sacred Heart Emergency Department in
Yankton, and a Medical Technologist took two vials of blood from Knode’s body.
Id. Erickson then placed the samples in a secure locker at the Yankton Safety
Center. Id. Knode claims the affidavit for search warrant, the search warrant
for blood draw, and the verified inventory were never notarized or filed. Id.
Knode denies that he submitted to a blood test; he claims that the blood
sample submitted as evidence against him was not his blood. Id. at 4. Knode
claims that he did not leave his holding cell after he was arrested and that he
did not have any bandages or puncture wounds from a blood draw. Id.
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The original DUI charge, that was derived from the alleged false blood
sample, was later “left out of the grand jury indictment.” Id. at 5. Knode
pleaded guilty to charges “unrelated” to the blood sample. Id. Knode has spent
money and time preparing his legal documents to fight the falsified evidence.
Id. at 6. The falsified evidence has caused Knode stress, anxiety, illness, and
insomnia. Id. Knode believes the falsified evidence “potentially ruined [his]
career as a delivery driver. . . . [and] affected [his] liberty.” Id. Knode’s bond
amount was higher and his detainment was longer due to the falsified
evidence. Id. He seeks monetary damages from each defendant, injunctive
relief, a declaration that the officers violated his rights, and for Erickson to
resign and be charged for falsification of evidence. Id. at 7.
Knode includes the evidence report of the Yankton Police Department
that notes two blood samples were taken from Knode’s body on January 17,
2018, at Avera Sacred Heart Hospital Emergency Department and then sent to
the State Health Lab. Docket 8 at 2. The blood samples were returned to the
police department and placed in fridge locker #88. Id. The South Dakota
Department of Corrections Offender Locator notes that Knode was sentenced
on October 31, 2019, for Possession of a Controlled Substance (Schedule I and
Ii).1
1 South Dakota Department of Corrections, https://doc.sd.gov/adult/lookup/
(last visited Apr. 20, 2020) (searching Andrew Knode, DOC #1481).
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B. 	Legal Standard
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). Civil rights and
pro se 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.
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). 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 factual allegations must be “enough to raise a right to relief above
the speculative level on the assumption that all of the complaint’s allegations
are true.” Twombly, 550 U.S. at 555; 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 regarding 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 are
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“(1) 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). The court will now assess each individual
claim under 28 U.S.C. § 1915A.
C. 	Legal Analysis
1. Claim Against the State of South Dakota and Official
Capacity Claims
Knode lists the state of South Dakota as a defendant and seeks monetary
damages. Docket 3 at 1, 7. Damages claims against the State are barred by the
Eleventh Amendment, unless South Dakota consented to suit or Congress
abrogated its immunity. See Kentucky v. Graham, 473 U.S. 159, 169 (1985)
(holding absent waiver by the State or valid override by Congress, “the Eleventh
Amendment bars a damages action against a State in federal court.”). The state
of South Dakota has not waived its Eleventh Amendment immunity for
damages actions in federal court and Congress has not abrogated South
Dakota’s Eleventh Amendment immunity under § 1983. Thus, all claims for
monetary damages against the state of South Dakota are dismissed.
Knode sues Erickson and Pekarek, police officers for the Yankton Police
Department, in their official capacities. Docket 3 at 2. “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). Knode’s official capacity claims against
Erickson and Pekarek are the equivalent to claims against the City of Yankton.
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A municipal government may only be sued “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,” deprives a plaintiff of a
federal right. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978). Because
Knode does not claim that policies or customs of the City of Yankton are
depriving him of his rights, his claims against Erickson and Pekarek in their
official capacities are dismissed for failure to state a claim under 28 U.S.C. §§
1915(e)(2)(B)(i-ii) and 1915A(b)(1).
2. Individual Capacity Claims
Knode sues Erickson in his individual capacity and claims that he
fabricated evidence against Knode. Docket 3 at 2, 4. “Intentionally or recklessly
. . . manufacturing false evidence may shock the conscience and can violate the
Fourteenth Amendment’s due process clause.” Livers v. Schenck, 700 F.3d 340,
351 (8th Cir. 2012) (citing Winslow v. Smith, 696 F.3d 716, 731 (8th Cir. 2012);
Wilson v. Lawrence Cty., 260 F.3d 946, 955-57 (8th Cir. 2001)). Knode notes in
his complaint that he pleaded guilty to charges “unrelated” to the blood
sample. Id. at 5. Knode was sentenced for Possession of a Controlled Substance
(Schedule I and Ii). Because Knode claims that he never gave a blood sample
and that Erickson submitted false evidence to support a DUI charge, Knode
has alleged sufficient facts for his Fourteenth Amendment due process clause
claim against Erickson to survive screening.
Knode sues Pekarek in his individual capacity. Docket 3 at 2. Although
Pekarek is named as a defendant, Knode merely asserts that Pekarek helped
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Erickson with the stop and arrest. Id. at 3. “Because vicarious liability is
inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-
official defendant, through the official’s own individual actions, has violated the
Constitution.” Ashcrof v. Iqbal, 556 U.S. 662, 676 (2009). Because Knode does
not assert facts that allege Pekarek participated in unconstitutional conduct,
his claims against Pekarek are dismissed without prejudice under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
III. 	Motion for Appointment of Counsel
Knode moves for appointment of counsel. Docket 6. “A pro se litigant has
no statutory or constitutional right to have counsel appointed in a civil case.”
Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998). Under 28 U.S.C.
§ 1915(e)(1), “[t]he court may request an attorney to represent any person
unable to afford counsel.” When determining whether to appoint counsel to a
pro se litigant, the court will look at the factual and legal complexity of the
claims. The Eighth Circuit considers “the factual complexity of the case, the
ability of the indigent to investigate the facts, the existence of conflicting
testimony, the ability of the indigent to present his claim and the complexity of
the legal issues.” Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991)
(citing Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986) (holding
that the district court erred when it denied the plaintiff’s motion for counsel
solely because the plaintiff did not raise factually complex issues)). Here,
Knode’s claims do not appear to be factually or legally complex. Because this
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court believes Knode can adequately present his claims at this time, his motion
for appointment of counsel (Docket 6) is denied.
IV. 	Motion for Copies
In his motion for copies, Knode asks this court to enter an order that
forces the South Dakota Department of Corrections (SDDOC) to change their
limit on the number of copies they allow. Docket 7. He also asks this court to
allow him to send his original copies of future filings to the Clerk of Court and
have service be by email. Id. This court grants in part and denies in part
Knode’s motion. Knode may fulfill service by email after the complaint is served
(after Knode fills out the necessary service forms) but denies entering an order
forcing the SDDOC to change their policy.
Thus, it is ORDERED:
1. That Knode’s motion to proceed in forma pauperis (Docket 4) is
granted.
2. That the institution having custody of Knode is directed that
whenever the amount in Knode’s trust account, exclusive of funds
available to him in his frozen account, exceeds $10.00, monthly
payments that equal 20 percent of the funds credited the preceding
month to Knode’s trust account shall be forwarded to the U.S. District
Court Clerk’s Office under to 28 U.S.C. § 1915(b)(1), until the $350
filing fee is paid in full.
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3. That Knode’s claims against the state of South Dakota are dismissed
for failure to state a claim upon which relief can be granted under 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
4. That Knode’s claims against Kyler Pakarek are dismissed without
prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
5. That Knode’s Fourteenth Amendment claim against Joseph Erickson
in his individual capacity survives screening and may be served.
6. The Clerk shall send a blank summons form and Marshal Service
Form (Form USM-285) to Knode so that he may cause the complaint
to be served upon defendant Erickson.
7. Knode shall complete and send the Clerk of Courts a separate
summons and USM-285 form for the defendant. Upon receipt of the
completed summons and USM-285 form, 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.
8. The United States Marshal Service shall serve the completed
summonses, together with a copy of the amended complaint and
supplement (Dockets 3, 8) and this order, upon the defendant.
9. The defendant will serve and file an answer or responsive pleading
to the amended complaints and supplement 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).
10. 	The clerk of the court is directed to send a copy of this order to the
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appropriate official at Knode’s institution.
11. 	Knode will keep the court informed of his 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.
12. 	That Knode’s motion for appointment of counsel (Docket 6) is
denied.
13. 	That Knode’s motion for copies (Docket 7) is granted in part and
denied in part. The court denies entering an order forcing the
SDDOC to change their limit on copies but allows Knode to complete
service by email after his amended complaint and supplement have
been served.
Dated April 24, 2020.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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