United States District Court, N.D. Iowa, Cedar Rapids Division
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
IOWA EASTERN DIVISION
MEMORANDUM OPINION AND ORDER
Leonard T. Strand, Chief Judge
me are two pro se cases filed by plaintiff Kelsey
Beckett. In the first (C18-0117-LTS, Doc. No. 1-1)
Beckett raises claims pursuant to both 42 U.S.C. § 1983
and Bivens v. Six Unknown Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), alleging that officers
used excessive force during his arrest. In the second
(C19-2039-LTS, Doc. No. 1-1) Beckett and plaintiff Jacob Snay
make four claims: 1) they were not provided adequate
nutrition at the Fayette County Correctional Center; 2)
defendants were deliberately indifferent because it is too
cold to sleep at Fayette County Correctional Center; 3) they
were denied access to the courts because the Fayette County
Correctional Center does not have adequate legal resources;
and 4) Beckett was subject to excessive force when defendants
used a taser on him while he was lying on the floor.
APPLICATIONS TO PROCEED IN FORMA PAUPERIS
cases Beckett did not submit the statutory filing fees.
See 28 U.S.C. § 1914(a) (requiring filing fee).
In order for a court to authorize the commencement of an
action without the prepayment of the filing fee, a person
must submit an affidavit that includes a statement of all the
assets the person possesses. See 28 U.S.C. §
1915(a)(1). In addition, a prisoner must submit a certified
copy of the trust fund account statement (or institutional
equivalent) for the 6-month period immediately preceding the
filing of the complaint, obtained from the appropriate
official of each prison at which the prisoner was or is
confined. See 28 U.S.C. § 1915(a)(2).
who, as noted above, is incarcerated, filed motions to
proceed in forma pauperis in both cases. C18-0117-LTS, Doc.
No. 1 and C19-2039-LTS, Doc. 1. Beckett failed to provide a
copy of his prisoner account statement with his motion in
C18-0117 LTS. However, because he filed a complete motion in
C19-2039-LTS, Doc. No. 1, I will consider that motion as
applicable to both cases. That motion substantially complies
with the requirements set out above. Because it is clear that
Beckett does not have the assets necessary to pay the filing
fee his applications will be granted.
However, even though the court deems it appropriate to grant
a prisoner-plaintiff in forma pauperis status, that plaintiff
is required to pay the full $350.00 filing fee by making
payments on an installment basis. 28 U.S.C. §
1915(b)(1); see also In re Tyler, 110 F.3d 528, 529-
30 (8th Cir. 1997) (“[T]he [Prisoner Litigation Reform
Act] makes prisoners responsible for their filing fees the
moment the prisoner brings a civil action or files an
appeal.”). The full filing fee will be collected even
if the court dismisses the case because it is frivolous or
malicious, fails to state a claim on which relief may be
granted, or seeks money damages against a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
must pay an initial partial filing fee in the amount of
twenty percent of the greater of his average monthly account
balance or average monthly deposits for the six months
preceding the filing of the complaint. 28 U.S.C. §
1915(b)(1). Based on the documents that Beckett submitted, it
appears he has no money in his prison account, and he has not
made any deposits into his prison account. See
C19-2039-LTS, Doc. No. 1 at 3. Accordingly, the institution
having custody of Beckett is directed to monitor his account,
and, at such time that it is possible, provide an initial
partial filing fee as calculated by pursuant to 28 U.S.C.
§ 1915(b) for each of the above captioned cases.
addition to the initial partial filing fee, plaintiff 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. Specifically:
[a]fter 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). Therefore, after plaintiff pays
in full the initial partial filing fees, the remaining
installments shall be collected by the institution having
custody of the plaintiff. The clerk's office shall send a
copy of this order and the notice of collection of filing
fees to the appropriate official at the place where plaintiff
is an inmate.
Snay did not pay the filing fee in C19-2039-LTS and filed a
motion to proceed in forma pauperis. Id. at Doc. No.
1. However, Snay did not file a prison account statement
along with his motion. Accordingly, I will grant Snay thirty
days from the date of this order to either pay the $400
filing fee or file a motion to proceed in forma pauperis
which complies with the requirements set out above. If Snay
fails to either pay the filing fee or file a motion to
proceed in forma pauperis within thirty days, he will be
dismissed from C19-2039-LTS with no further order of the
court. The clerk's office is directed to send Snay the
standard motion to proceed in forma pauperis form.
INITIAL REVIEW STANDARD
se complaint must be liberally construed. See Hughes v.
Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner,
404 U.S. 519, 520 (1972) (per curiam); Smith v. St.
Bernards Reg'l Med. Ctr., 19 F.3d 1254, 1255 (8th
Cir. 1994); see also Stone v. Harry, 364 F.3d 912,
914 (8th Cir. 2004). However, the Court may dismiss an in
forma pauperis complaint if it is frivolous, malicious, fails
to state a claim upon which relief can be granted, or seeks
monetary relief against a defendant that is immune from a
monetary judgment. 28 U.S.C. § 1915(e)(2); see
also 28 U.S.C. § 1915A(b)(1) (requiring the Court
to do an initial review of prisoner complaints).
reviewing a prisoner or in forma pauperis complaint, unless
the facts alleged are clearly baseless, they must be weighed
in favor of the plaintiff. See Denton v. Hernandez,
504 U.S. 25, 32-33 (1992). Pro se complaints, however, must
allege sufficient facts to support the plaintiff's claim.
Stone, 364 F.3d at 914. A claim is
“frivolous” if it “lacks an arguable basis
in law or in fact.” Neitzke v. Williams, 490
U.S. 319, 325 (1989); accord Cokeley v. Endell, 27
F.3d 331, 332 (8th Cir. 1994). In determining whether a
complaint fails to state a claim pursuant to §
1915(e)(2), courts generally rely on the standards
articulated pursuant to Federal Rule of Procedure 12(b)(6).
Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.
1997); see also Atkinson v. Bohn, 91 F.3d 1127,
1128-29 (8th Cir. 1996) (applying Rule 12(b)(6) standard to a
dismissal under 28 U.S.C. § 1915(e)(2). An action fails
to state a claim upon which relief can be granted if it does
not plead “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Pursuant to §
1915(e)(2), a court may review the complaint and dismiss sua
sponte those claims that fail “to raise a right to
relief above the speculative level, ” Id. at
555., or that are premised on meritless legal theories or
clearly lack any factual basis, see Neitzke, 490
U.S. at 325.
INITIAL REVIEW ANALYSIS
first case, C18-0117-LTS, is brought, in part, pursuant to
Bivens v. Six Unknown Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971).
As a general rule, Bivens claims and § 1983
claims are almost identical and involve the same analysis.
See Gordon, 168 F.3d at 1113 (“An action under
Bivens is almost identical to an action under
section 1983, except that the former is maintained against
federal officials while the latter is against state
officials.” (citation omitted)); Duffy v.
Wolle, 123 F.3d 1026, 1037 (8th Cir. 1997) (recognizing
that the § 1983 body of law applies to Bivens
Solomon v. Petray, 795 F.3d 777, 789 fn.7 (8th Cir.
2015); see also Wright v. United States, 813 F.3d
689, 695 (8th Cir. 2015) (applying excessive force standards
in a Bivens action against the U.S. Marshals
§ 1983 Standard
remainder of the claims in the two cases are brought pursuant
to 42 U.S.C. § 1983, which provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory . . .
subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress . . .
§ 1983 was designed to provide a “broad remedy for
violations of federally protected civil rights.”
Monell v. Dep't of Soc. Servs., 436 U.S. 658,
685 (1978). However, 42 U.S.C. § 1983 provides no
substantive rights. See Albright v. Oliver, 510 U.S.
266, 271 (1994); Graham v. Conner, 490 U.S. 386,
393-94 (1989); Chapman v. Houston Welfare Rights
Org., 441 U.S. 600, 617 (1979). “One cannot go
into court and claim a ‘violation of [42 U.S.C.] §
1983' - for [42 U.S.C.] § 1983 by itself does not
protect anyone against anything.” Chapman, 441
U.S. at 617. Rather, 42 U.S.C. § 1983 provides a remedy
for violations of all “rights, privileges, or
immunities secured by the Constitution and laws [of the
United States].” 42 U.S.C. § 1983; see also
Albright, 510 U.S. at 271 (42 U.S.C. § 1983
“merely provides a method for vindicating federal
rights elsewhere conferred.”); Graham, 490
U.S. at 393-94 (same); Maine v. Thiboutot, 448 U.S.
1, 4 (1980) (“Constitution and laws” means 42
U.S.C. § 1983 provides remedies for violations of rights
created by federal statute, as well as those created by the
Constitution.). To state a claim under 42 U.S.C. § 1983,
a plaintiff must establish: (1) the violation of a right
secured by the Constitution or laws of the United States and
(2) the alleged deprivation of that right was committed by a
person acting under color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988).
Claims in C18-0117-LTS
first case, Beckett makes a relatively straightforward
excessive force claim. Beckett alleges that following a
high-speed chase, he was taken into custody by the Cedar
Rapids Police Department and U.S. Marshals Service, who
handcuffed him and placed him on the ground. Beckett alleges
that after he was on the ground, the arresting officers
allowed a K-9 unit to bite him, and those bites resulted in
serious medical issues.
Supreme Court has set a high bar for dismissing excessive
force claims brought by pretrial detainees claims on initial
review. Reversing a grant of summary ...