Thomas v. Houwman et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JOHNNY JAY THOMAS,
Plaintiff,
vs.
HECTOR SOTO, Detective, Supervisor
at Sioux Falls Police Department, in his
individual and official capacity;
DETECTIVE NYBERG, Detective at
Sioux Falls Police Department, in his or
her individual and official capacity;
DETECTIVE FLOGSTAD, Detective at
Sioux Falls Police Department, in his or
her individual and official capacity;
UNKNOWN OFFICER, Detective at
Sioux Falls Police Department; in his or
her individual and official capacity;
ROBIN HOUWMAN, Judge at
Minnehaha County SD, in her
individual and official capacity;
UNKNOWN DOCTOR, Doctor at Avera
Hospital, in his or her individual and
official capacity,
Defendants.
4:22-CV-04113-KES
ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS AND 1915A
SCREENING FOR DISMISSAL
Plaintiff, Johnny Jay Thomas, an inmate at the Minnehaha County Jail
at the time that this lawsuit was commenced, filed a pro se civil rights lawsuit
under 28 U.S.C. § 1983. Docket 1. Thomas moves for leave to proceed in forma
pauperis and has included a prisoner trust account report. Dockets 2, 3.
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I. 	Motion for Leave to Proceed in Forma Pauperis
Thomas reports average monthly deposits of $23.10 and an average
monthly balance of $5.01. Docket 3 at 1. Under the Prison Litigation Reform
Act, 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 proceeding or over a
period of time under an installment plan.” Henderson v. Norris, 129 F.3d 481,
483 (8th Cir. 1997) (per curiam) (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 Thomas’s prisoner trust account, the court
grants Thomas 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, Thomas 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
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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.
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 Thomas’s institution. Thomas 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 Thomas’s complaint are: that defendants sexually
assaulted him while gathering evidence. See Docket 1 at 6-7, 12-13. He claims
that he was detained by defendants and transported to an Avera medical
facility, where his pants were pulled down and his genitals were grabbed. Id. at
6. He claims that defendants forcefully used a catheter to collect his urine
“under the premise of collecting evidence.” Id. at 13. He also claims that
defendants made humiliating comments about his genitals, that he had a
burning sensation that lasted for weeks after the incident, and that he still has
emotional trauma today. Id. at 6.
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Thomas attaches an affidavit in support of a search warrant submitted
by Detective Hector Soto to Judge Robin Houwman. Id. at 8-11. On September
23, 2010, Soto sought a search warrant to forcibly obtain Thomas’s urine, as
well as the urine of two other people, because they refused to provide urine
samples for four hours while in custody. Id. at 9-11. Thomas and the two
others were suspected of drug activity after drugs were found in their hotel
room and after Thomas and one of the others admitted to smoking marijuana
that day. See id. at 9-10. Thomas claims that the urine sample was
unnecessary because defendants “had all the evidence they needed.” Id. at 12.
Thomas alleges that he has had mental and emotional trauma as a result
of this incident and that he has recently showed signs of PTSD. Id. at 6, 13. He
alleges that he no longer trusts law enforcement and now fears them. Id. at 12.
Thomas brings claims for violation of his Fourth Amendment and Fifth
Amendment rights, and he also seeks to bring a claim under 18 U.S.C. § 242, a
criminal civil rights statute. Id. at 6, 12-13. He seeks “suitable reprimand” and
“criminal charges” for the defendants and requests mental health counseling.
Id. at 14. He also seeks $5,000,000 in money damages. Id.
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) (per curiam); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir.
2004) (citation omitted). Even with this construction, “a pro se complaint must
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contain specific facts supporting its conclusions.” Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985) (citation omitted); see also Ellis v. City of
Minneapolis, 518 F. App’x 502, 504 (8th Cir. 2013) (per curiam) (citation
omitted).
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. See Beavers v. Lockhart, 755 F.2d 657, 663-64 (8th
Cir. 1985) (citation omitted) (explaining that a district court does not err when
it dismisses a claim based on vague allegations or unsupported
generalizations). 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” (citing Twombly, 550 U.S. at
553-63)).
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
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who is immune from such relief.” 28 U.S.C. § 1915A(b). The court will now
assess Thomas’s complaint under 28 U.S.C. § 1915A.
C. 	Legal Analysis
“Although the statute of limitations is an affirmative defense, a district
court may properly dismiss an in forma pauperis complaint . . . when it is
apparent the statute of limitations has run.” Myers v. Vogal, 960 F.2d 750, 751
(8th Cir. 1992) (per curiam) (citations omitted). “[T]he [United States] Supreme
Court has instructed courts to apply the most analogous statute of limitations
to claims made under § 1983.” Bell v. Gross, 2021 WL 2336936, at *2 (D.S.D.
June 8, 2021) (citing Wilson v. Garcia, 471 U.S. 216, 266-68 (1985)). “In South
Dakota, a specific statute provides that civil rights actions must be brought
within three years after the alleged constitutional deprivation occurred or the
action will be barred.” Bell v. Fowler, 99 F.3d 262, 266 (8th Cir. 1996) (citing
SDCL § 15-2-15.2).
Thomas alleges that the constitutional deprivation occurred on
September 23, 2010. See Docket 1 at 9-11, 13. Thus, under SDCL § 15-2-15.2,
Thomas needed to bring this action by September 23, 2013. South Dakota
“ha[s] not officially adopted the equitable tolling doctrine for civil cases[.]” In re
Estate of French, 956 N.W.2d 806, 811 (S.D. 2021) (citing Anson v. Star Brite
Inn Motel, 788 N.W.2d 822, 825 n.2 (S.D. 2010)); see also Bourassa v. United
States, 581 F. Supp. 3d 1188, 1198-1200 (D.S.D. 2022) (discussing the South
Dakota equitable tolling standard as applied to a Bivens claim). “The threshold
for consideration of equitable tolling is inequitable circumstances not caused
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by the plaintiff that prevent the plaintiff from timely filing.” In re Estate of
French, 956 N.W.2d at 811-12 (quoting Anson, 788 N.W.2d at 826).
Here, Thomas makes no allegations of inequitable circumstances that
prevented him from timely filing this lawsuit other than to state that he “didn’t
know [his] options till now.” See Docket 1 at 6-7, 12-13. Other than this single
statement, he only alleges that the incident in question violated his rights. See
id. Thus, he makes no showing of inequitable circumstances, and his
complaint is properly dismissed under Myers. See 960 F.2d at 751 (citations
omitted); see also Jones v. Bock, 549 U.S. 199, 215 (2007) (“If the allegations . .
. show that relief is barred by the applicable statute of limitations, the
complaint is subject to dismissal for failure to state a claim[.]”). Thomas’s
complaint is dismissed with prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1).
III. 	Strike Under 28 U.S.C. § 1915(g)
The court finds that Thomas’s complaint fails to state a claim upon
which relief may be granted. Section 1915(g) states as follows:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner has,
on 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States
that was dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Because Thomas’s complaint is dismissed for failure to
state a claim upon which relief may be granted, this dismissal will count as a
strike.
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Thus, it is ORDERED:
1. 	That Thomas’s motion for leave to proceed in forma pauperis
(Docket 2) is granted.
2. 	That Thomas’s complaint (Docket 1) is dismissed with prejudice
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
3. 	That this action constitutes a strike against Thomas for purposes
of the three-strikes rule under 28 U.S.C. § 1915(g).
4. 	That judgment is entered in favor of Hector Soto, Detective Nyberg,
Detective 	Flogstad, 	Unknown 	Officer, 	Robin 	Houwman, 	and
Unknown Doctor and against Thomas.
Dated November 3, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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