Mayer v. Feickert

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
BRIGHTON ALLEN MAYER,
Plaintiff,
vs.
ARIEL RAYNE FEICKERT,
Defendant.
5:22-CV-05016-JLV
ORDER GRANTING PLAINTIFF LEAVE
TO PROCEED IN FORMA PAUPERIS
AND 1915A SCREENING ORDER FOR
DISMISSAL
Plaintiff Brighton Allen Mayer, appearing pro se, initiated this action
against defendant Ariel Rayne Feickert. 	(Docket 1). 	Mr. Mayer moves for leave
to proceed in forma pauperis and provides the court with his financial
information. 	(Docket 3). 	Mr. Mayer also moves to appoint counsel. 	(Docket 4).
A federal court may authorize the commencement of suit without
prepayment of fees when an applicant files an affidavit stating he is unable to
pay the costs of the lawsuit. 	28 U.S.C. § 1915. 	Determining whether an
applicant qualifies to proceed in forma pauperis under § 1915 is committed to
the court's discretion. 	Cross v. Gen. Motors Corp., 721 F.2d 1152, 1157 (8th
Cir. 1983). 	“In forma pauperis status does not require a litigant to
demonstrate absolute destitution.” 	Lee v. McDonald’s Corp., 231 F.3d 456,
459 (8th Cir. 2000). 	The court finds Mr. Mayer is indigent and grants his
motion to proceed in forma pauperis.
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Because Mr. Mayer proceeds in forma pauperis, the court must screen
the complaint pursuant to 28 U.S.C. § 1915. That statute provides:
Notwithstanding any filing fee, . . . the court shall dismiss the case at
any time if the court determines that--
. . .
(B) the action or appeal--
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from
such relief.
28 U.S.C. § 1915(e)(2). 	Subsection (e)(2) allows the court sua sponte to review a
complaint filed with an in forma pauperis application to determine if the action
is frivolous, malicious, fails to state a claim, or seeks monetary relief against a
defendant or defendants who are immune from such relief. 	In evaluating the
complaint, the court must construe plaintiff’s pro se complaint liberally. 	See
Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). 	This means “that if the
essence of an allegation is discernible, even though it is not pleaded with legal
nicety, then the district court should construe the complaint in a way that
permits the layperson’s claim to be considered within the proper legal
framework.” 	Jackson v. Nixon, 747 F.3d 537, 544 (8th Cir. 2014) (internal
quotation marks omitted). 	The complaint “still must allege sufficient facts to
support the claims advanced.” 	Stone, 364 F.3d at 914. 	A[P]ro se complaints
are to be construed liberally . . . .@ Id. (referencing Estelle v. Gamble, 429 U.S.
97, 106 (1976).
Mr. Mayer, a Native American man, seeks custody of his daughter and
brings this complaint against his daughter’s mother. 	(Docket 1 at pp. 1 & 4).
He claims that on or around February 10, 2022, Ms. Feickert overdosed on
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depression medication and was taken to the hospital. 	Id. 	He further claims
his daughter was in the same room when this occurred. 	(Docket 7 at p. 1).
Mr. Mayer alleges his daughter is now living in a one-bedroom apartment with
five people, and he believes he could provide a stable home for her. 	(Docket 1
at p. 4).
Mr. Mayer fails to assert a basis for subject-matter jurisdiction. 	“In every
federal case the court must be satisfied that it has jurisdiction before it turns
to the merits of other legal arguments.” 	Carlson v. Arrowhead Concrete Works,
Inc., 445 F.3d 1046, 1050 (8th Cir. 2006) (citations omitted). 	Under Federal
Rule of Civil Procedure 12(h)(3), this court must dismiss an action “if [it]
determines at any time that it lacks subject-matter jurisdiction[.]” 	If this court
lacks both diversity of citizenship jurisdiction under 28 U.S.C. § 1332 and
federal question jurisdiction under 28 U.S.C. § 1331, dismissal for lack of
subject-matter jurisdiction is appropriate. 	See Auto-Owners Ins. Co. v. Tribal
Ct., 495 F.3d 1017, 1020 (8th Cir. 2007).
Because Mr. Mayer and Ms. Feickert are both citizens of South Dakota,
this court does not have diversity of citizenship jurisdiction over Mr. Mayer’s
complaint. 	Further, Mr. Mayer does not assert that his claim arises “under the
Constitution, laws, or treaties of the United States” as required for federal
question jurisdiction. 	See 28 U.S.C. § 1331. 	Congress provided a federal
remedy for certain violations of the Indian Child Welfare Act (ICWA): “[A]ny
parent or Indian custodian from whose custody [an Indian] child was removed
. . . may petition any court of competent jurisdiction to invalidate such action
upon a showing that such action violated any provision of sections 1911, 1912,
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and 1913 of [ICWA].” 	25 U.S.C. § 1914; see also Jumping Eagle v. Warren, CIV
18-4131, 2021 WL 462644, at *7 (D.S.D. Feb. 9, 2021) (finding that federal
courts are courts of competent jurisdiction under § 1914). 	Mr. Mayer does not
allege that his daughter was removed from his custody in violation of ICWA.
See Docket 1 at p. 4; Docket 7 at p. 1. 	Thus, this court has no jurisdiction
under ICWA.
This court lacks both diversity of citizenship jurisdiction and federal
question jurisdiction, and Mr. Mayer’s complaint must be dismissed for lack of
subject-matter jurisdiction. 	Mr. Mayer’s claims against Ms. Feickert are
dismissed without prejudice, pursuant to Federal Rule of Civil Procedure
12(h)(3), 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a
claim upon which relief may be granted.
Based on the analysis above, it is
ORDERED that plaintiff’s motion for leave to proceed in forma pauperis
(Docket 3) is granted.
IT IS FURTHER ORDERED that plaintiff’s complaint is dismissed without
prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel
(Docket 4) is dismissed as moot.
Dated May 31, 2022.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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