Johnson v. Weets

• Court: District Court, D. South Dakota
• Decided: May 17, 2019
• Docket: 4:18-cv-04165
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

CHARLES RAY JOHNSON, 4:18-CV-04164-RAL 4:18-CV-04165-RAL □ Plaintiff, 4:18-CV-04166-RAL □ vs.

OPINION AND ORDER BROOKINGS POLICE DEPARTMENT, DAMIAN WEETS, IN HIS OFFICIAL □ CAPACITY, AND JOHN MCQUISTION; Defendants.

Plaintiff Charles Ray Johnson (Johnson) filed three closely related pro se civil rights lawsuits in succession under 42 U.S.C. § 1983. These suits appear to arise out of the same facts Johnson alleged in cases this Court previously screened: namely, 4:1 8-CV-04098-RAL, 4:18-CV-

04099-RAL, 4:18-CV-04100-RAL, and 4:18-CV-04140-RAL. In the instant suits, Johnson alleges, without providing any factual background, that his constitutional rights were violated when police officer Damian Weets (Officer Weets) demanded that Johnson show him his ID and when his probation officer John McQuistion (McQuistion) subsequently detained him for having been ticketed for failing to so provide his ID. Johnson further alleges that the Brookings Police Department has an unconstitutional policy of requiring police officers to ask for ID. Johnson requests that he be discharged from probation, that Officer Weets undergo anger management training, that the Brookings Police Department revise their policies requiring whether police officers may ask for ID, and $3.5 million in damages.

In opinions dated November 2 and November 14, 2018, this Court set forth the factual background underlying these claims: □□

_ Johnson states that police officer Damian Weets (Officer Weets), having been called to investigate Johnson’s activities as he sat with □ a woman in a car outside a residential housing unit for five hours, brandished his weapon and pointed it at Johnson after Johnson failed to provide the officer his identification. Johnson claims that the □ officer had no probable cause to investigate Johnson’s activities and believes that police were called by residents whom Johnson had =| '- previously reported to the police for failure to supervise a toddler. . . Officer Weets ultimately arrested Johnson for False Impersonation to Deceive Law Enforcement, and Johnson, who was on state probation or parole, spent approximately one week in the South si. Dakota Department of Correction’s Jameson Annex as a result of the arrest. ° _ Johnson v. Brookings Police Dep’t., 2018 WL 5729913, *1 (D.S.D. 2018). Since Johnson has

_ alleged no factual -background in his current lawsuits such as would survive dismissal under the screening procedure required by 28 U.S.C. § 1915(e)(2), this Court infers, based on the virtually identical nature of the claims and the requirement to construe pleadings liberally, that the "circumstances that led to Johnson’s prior suits also underlie his current claims. In either case, this

_ dismisses Johnson’s. Complaints in accordance with the screening procedure required by 28 US.C.§1915(e)(2).

Standard of Review — oe

Suits brought in forma pauperis are subject to a two-step screening process, which first

requires the plaintiff to demonstrate financial eligibility to proceed without prepayment of fees. Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th Cir. 1982); see e. g., Lundahl v. JP Morgan Chase Bank, 2018 WL 3682503, *1 (D.S.D. 2018). A person may be granted permission to proceed in forma pauperis if he or she “submits an affidavit that includes a statement of all assets such [person] possesses [and] that the person is unable to pay such fees or give security therefor.”

. . 2 .

USC. § 1915(a\(1). The litigant is not required to demonstrate absolute destitution, and determination of whether a litigant is sufficiently impoverished to qualify to so proceed is committed to the court’s discretion. Lee v. McDonald ' Corp., 231 F.3d 456 (8th Cir. 2000); Cross Gen. Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983); see, e.g., Babino ». Janssen & Son, 2017 WL 6813137, SD. 2017), In light of the information Johnson has provided in his financial affidavits, this Court finds that he may proceed in forma pauperis. .

_ Nonetheless, given that J ohnson has now filed seven lawsuits against the same defendants based on the same facts, with other lawsuits against different defendants pending, it is incumbent □ upon this Court to inform J ohnson that “the decision whether to grant or deny in forma pauperis status is within the sound discretion of the trial court.” Cross v. General Motors Corp. T1F2d 1152,.1157 (8th Cir. 1983) (internal citations omitted). A judge, “after weighing the relevant factors” may “properly determine[] that a litigant’s abusive conduct merits a prefiling injunction.” Inre Pointer, 345 Fed.Appx. 204, 205 (8th Cir. 2009). Plaintiffs “who in bad faith consistently □ abuse the judicial process and privilege of litigating at public expense” may be subject to pre-filing

review procedures “restricting the availability of cost-free access to court.” Bennett y. Miller, 2014 WL 60092, *7 (D.S.D. 2014) (quoting Peck v. Hoff, 660 F.2d 371, 374 (8th Cir. 1981)). Johnson’s multiple frivolous lawsuits may ultimately support such an injunction should he continue to file meritless suits. □ □□ □

The second step of the in forma pauperis screening process requires a district court to determine whether a pro se civil action against a governmental entity or employee should be dismissed as “frivolous, malicious, or fail[ing] to state a claim upon which relief may be granted” or for “seek[ing] monetary relief from a defendant who is immune from such relief.” 28 U:S.C. □ § 1915(6)(2); Martin-T rigona, 691 F.2d at 857; see also Lundahl, at *1. Pro se complaints must

be liberally construed. Erickson v. Pardus, 551 USS. 89, 94 (2007); see also Native Am. Council of Tribes v. Solem, 691 F.2d 382 (sth Cir. 1982). Notwithstanding its liberal construction, a pro se complaint may be dismissed as-frivolous “where it lacks an arguable basis either in law or in fact;” that is, where the claim is “based on an indisputably meritless legal theory” or where, having “pierce[d] the veil of the complaint’s factual allegations,” the court determines those facts are

“fantastic or delusional.” Neitzke v. Williams, 490 i9, 325, 327-28 (1989) (internal citations omitted); see also Denton y. Hernandez, 504 U.S. 25, 33 (1992). Complaints are “malicious” where the plaintitt knows that such complaint is based on falsé allegations. In re Tyler; 839 F.2d 1290, 1293 (8th Cir. 1988) (intemal citations omitted).

A court may dismiss a complaint for failure to state a claim “asa matter of lawif it is clear

that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Neitzke, 490 U.S. at 327 (1989) (internal citations omitted). To avoid dismissal, a complaint “must show that the plaintiff ‘is entitled to relief, vee by alleging ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Torti v. Hoag, 868 □

666, 671 (8th Cir. 2017) (quoting In re Pre-Filled Propane Te ank Antitrust Litig., 860 F.3d

1063 (8th Cir. 2017) (en banc), Fed. R. Civ. P. 8(a)(2), and Ashcroft v. Igbal, 556 US. 662,

678 (2009)). To determine whether aclaim is plausible on its face is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679:(2009)..A complaint must allege “more than labels and conclusions.” Torti, 868 F.3d

. at 671 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). IL. Constitutional Claims Against Brookings Police Department . This Court has ruled in J ohnson’s prior case against Brookings Police Department that“[ijJt well-settled law that police departments, sheriff s offices, and jails are not persons within the .

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meaning of 42 U.S.C. § 1983 and are thus not amenable to suit.” Johnson v. Brookings Police Dep’t., 2018 WL 5729913, *2 (D.S.D. 2018). As such, Johnson’s claims of false arrest and conspiracy to deprive him of his civil rights against the Brookings Police Department should be dismissed.. . oe □ III. . Constitutional Claims Against Officer Weets

. Johnson claims that Officer Weets conspired to deprive Johnson of his civil rights and unlawfully detained him when he ultimately arrested Johnson for False Impersonation to Deceive Law Enforcement for failing to show his ID. J ohnson has filed his suit against Officer Weets in

his official capacity. As this Court previously articulated

_. . Aclaim brought against a state official in his or her official capacity - is treated as a suit against the state or political subdivision itself. . - Kentucky v. Graham, 473 U.S. 159, 165 (1985). In an official . _ capacity suit, the plaintiff must demonstrate that a policy or custom of the governmental entity of which the official was an agent | motivated the alleged constitutional violation. Jd. at 166; see.also □ Hafer v. Melo, 502 U.S. 21, 25 (1991). State officials may only be sued in their official capacity for injunctive relief, not for damages. See Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n.24 (1997); and Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n.10 (1989). . . To establish a claim for such custom liability, plaintiff must — | demonstrate the following: . . (1) The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity’s employees; . , (2) Deliberate indifference to or tacit authority of such conduct □ ‘by the governmental entity’s policymaking officials after notice to the officials of that misconduct; . . (3) That plaintiff was injured by acts. pursuant -to the governmental entity’s custom, i.e., that the custom was a moving ‘force behind the constitutional violation. . . Johnson v. Douglas County Medical Dept., 725 F.3d 825, 827 (8th __ Cir. 2013). Governmental entities may be sued for constitutional ~ □□ violations that arise via governmental custom “even though sucha

“custom has not received formal approval through the body’s official ee □ decisionmaking channels.” Monell v. Dep’t.of Soc. Servs.,436US. 0 658, 691 (1978). Claims based on a theory of vicarious liability,”, a "however, may not be brought under § 1983. Aschcroft v. Iqbal, 556 . □□ Johnson v. Brookings Police Dep't., 2018 WL 5729913, *2 (D'S.D. 2018).Here, unlike in his previous lawsuit, Jonson claims that Office Weets’ actions were the result of “the policies and □□ training he received which required an officer to ask for ID.” However, Johnson has alleged no : . facts to support finding that either-a policy or custom of the Brookings Police Department deprived him of his constitutional rights, Tohnson has provided no evidence. that the Brookings Police Department maintains ‘an. unconstitutional wtitten policy or training regarding Terry stops □

‘conducted by its officers. “MeGautha v. Jackson. County, Missouri Collections Department

36 F.3d 53, 56 (8th Cir. 1994). Nor has he. provided any evidence of a-custom depriving multiple - individuals of their constitutional rights or multiple incidents depriving him of his constitutional. tights. Johnson v. Douglas County Medical Dept., 75 B3d 825, 829 (8th Cir. 2013) (internal □□ citations. omitted). Indeed, single deviation from a written, official policy does not prove a conflicting custom.” Id (quoting Wedemeier City of Ballwin, Mo., 931 F.2d 24, 26 (Sth

Having presented insufficient evidence to satisfy the first prong of a claim for custom liability, this Court notes that the facts alleged in Johnson’s complaint also fail the second prong of a custom liability claim: he has alleged no instance of deliberate indifference or tacit authorization of unconstitutional. conduet by the Brookings Police Department’s policymaking officials. Jt is clear, then, that: Jobnson has not alleged sufficient facts to establish 4 claim for □□ custom liability. Moreover, the raonetary damages Johnson seeks are not available against Officer

Weets in his official capacity. Johnson’s claim against Officer Weets should therefore be dismissed. IV. Constitutional Claims Against John McQuistion

Plaintiff claims that his probation officer, John McQuistion, unlawfully detained him following his arrest for False Impersonation to Deceive Law Enforcement, even though J ohnson alleged his innocence. Johnson spent approximately one week in the South Dakota Department of

Correction’s Jameson Annex. This Court previously addressed identical claims brought by Johnson against John McQuistion. Johnson v. Johnson, 201 8 WL5983508, *2 (D.S.D. 2018). As

_ articulated there .

Both §§ 1983 and 1985(3) require the violation of a right protected under the Constitution or federal law as a predicate. Gatlin ex. rel. Estate of Gatlin v. Green, 362 F.3d 1089, 1093 (8th Cir. 2004) (internal citations omitted); Federer v. Gephardt, 363 F.3d 754, 758 . (8th Cir. 2004). Plaintiff has pled no such violation. Even construing Plaintiffs Complaints liberally, Plaintiff has not pled facts to support a constitutional or federal law violation. Plaintiff has not alleged, for instance, that his arrest was conducted without a - warrant, nor that such warrant was unlawfully executed in violation of the Fourth Amendment. U.S. v. Mims, 812 F.2d 1068, 1072 (8th . Cir. 1987). Plaintiff himself alleges violations of his probation that would have been sufficient grounds to establish probable cause for □ his arrest—such as failing to pass a drug test. Jd. (“The task of a magistrate in determining whether probable cause exists for issuing a warrant is simply to make a practical, common-sense decision whether ... the defendant has committed a crime.”). Nor has Plaintiff =~ claimed that the detention following his arrest was extended, such as to trigger a Due Process Clause claim. Luckes v. County of Hennepin. Minn., 415 F.3d 936, 939 (8th Cir. 2005).. Johnson has pled no new facts—and this Court sees no reason to liberally construe Johnson’s Complaint to infer any new facts—such as to support a prima facie case of a constitutional violation of his rights by John McQuistion. Johnson has alleged a new claim that his parole was

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unlawfully extended by his probation officer; however, he has provided no factual basis to support such a fantastical claim. V. Claims for Intentional and Negligent Infliction of Emotional Distress As with this Court’s prior rulings, Johnson’s claims for intentional and negligent infliction of emotional distress are state law claims. Although this Court could exercise supplemental jurisdiction over these claims under 28-U.S.C. § 1367 pursuant to a § 1983 action, where, as here, the federal claims upon which jurisdiction over the state law claims are dismissed, the state law claims should also be dismissed. Johnson may file infliction of emotional distress claims in state court. VI. Order Accordingly, it is hereby ORDERED 1. Johnson’s motions for leave to proceed in forma pauperis, Doc. 2, 18-CV-4164-RAL; Doc. 2, 18-CV-4165-RAL; and Doc. 2, 18-CV-4166-RAL, are granted. 2. Johnson’s Complaints, Doc. 1, 18-CV-4164-RAL; Doc. 1, 18-CV-4165-RAL; and Doc. 1, 18-CV-4166-RAL, are dismissed without prejudice. DATED May 2019. BY THE COURT:

UNITED STATES DISTRICT JUDGE .-