Pawneeleggins v. Kim

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ARDEN WENDELL PAWNEELEGGINS,
Plaintiff,
vs.
KIM, Hiring Manager at Qdoba Mexican
Grill, in her individual and official
capacity,
Defendant.
4:22-CV-04120-KES
ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS AND 1915A
SCREENING FOR DISMISSAL
Plaintiff, Arden Wendell Pawneeleggins, an inmate at the South Dakota
State Penitentiary at the time he initiated this lawsuit, filed a pro se civil rights
lawsuit under 42 U.S.C. § 1983. Docket 1. Pawneeleggins moves for leave to
proceed in forma pauperis and included a prisoner trust account report.
Dockets 2, 3. Pawneeleggins also moves for the appointment of counsel. Docket
5.
I. 	Motion for Leave to Proceed in Forma Pauperis
Pawneeleggins reports average monthly deposits of $7.35 and an average
monthly balance of $5.39. 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,
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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 Pawneeleggins’s prisoner trust account,
the court grants Pawneeleggins 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, Pawneeleggins 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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Id. 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
Pawneeleggins’s former institution. Pawneeleggins 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 Pawneeleggins’s complaint are: that he was denied
employment at a Qdoba Mexican Grill in Sioux Falls, South Dakota, because of
racial discrimination. See Docket 1 at 4-5. Pawneeleggins claims that he had
an interview with Kim, the hiring manager, on February 9, 2021. Id. at 4. He
claims that he used to work at a Qdoba in Sioux Falls and that he has
experience cooking. Id. Pawneeleggins alleges that Kim told him he would not
be hired because he and his girlfriend “were throwing stuff around in [the]
store” the week before. Id. He alleges that he told Kim that this could not have
been him because he was locked down at the St. Francis House the previous
week. Id. He alleges that Kim was “racially profiling [him] because [he is] half
black.” Id. He also alleges that Kim told him to leave the store and that he was
not getting interviewed. Id.
Pawneeleggins claims that Kim discriminated against him, engaged in
racial profiling, and retaliated against him. Id. at 4-5. He claims that he can’t
pay his bills or work and that his mental health has suffered as a result of this
incident. Id. at 4-5. He seeks compensatory damages of $300,000, punitive
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damages of $80,000, and $100,000 for his pain and suffering and mental
anguish. Id. at 7. He also asks for Kim’s position at Qdoba. 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
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).
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 and footnote omitted); see also Abdullah v.
Minnesota, 261 F. App’x 926, 927 (8th Cir. 2008) (per curiam) (noting that a
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“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
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. 	42 U.S.C. § 1983 Claims
Pawneeleggins brings claims against Kim under 42 U.S.C. § 1983,
alleging violations of his civil rights. Docket 1 at 1, 4-5. “[T]o state a claim for
relief under § 1983, a plaintiff must allege sufficient facts to show ‘(1) that the
defendant(s) acted under color of state law, and (2) that the alleged wrongful
conduct deprived the plaintiff of a constitutionally protected federal right.’ ”
Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010) (emphasis added) (quoting
Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009)). Kim is not a
public official, and Qdoba Mexican Grill is a private entity. See Docket 1 at 4-5.
The [United States] Supreme Court has recognized a number of
circumstances in which a private party may be characterized as a
state actor, such as where the state has delegated to a private party
a power traditionally exclusively reserved to the State, where a
private actor is a willful participant in joint activity with the State or
its agents, and where there is pervasive entwinement between the
private entity and the state. These particular circumstances are
merely examples and not intended to be exclusive.
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Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir. 2007)
(internal quotations and citations omitted).
Here, Pawneeleggins alleges no facts that would support a finding
that Kim is a state actor. See Docket 1 at 4-5. Thus, Pawneeleggins’s
§ 1983 claims against Kim are dismissed without prejudice under 28
U.S.C. §§ 1915(e)(B)(ii) and 1915A(b)(1).
2. 	42 U.S.C. § 1981 Claim
Construing his complaint liberally, Pawneeleggins brings a claim under
42 U.S.C. § 1981, a federal statute that “protects ‘identifiable classes of
persons who are subjected to intentional discrimination solely because of their
ancestry or ethnic characteristics.’ ” Torgerson v. City of Rochester, 643 F.3d
1031, 1052 (8th Cir. 2011) (en banc) (quoting St. Francis Coll. v. Al-Khazraji,
481 U.S. 604, 613 (1987)). This court construes Pawneeleggins’s claim as being
brought against both Kim and Qdoba Mexican Grill.
The Eighth Circuit Court of Appeals has explained that the same
analysis applies to “claims of discrimination . . . under Title VII [of the Civil
Rights Act of 1964] and 42 U.S.C. § 1981.” Takele v. Mayo Clinic, 576 F.3d 834,
838 (8th Cir. 2009) (citations omitted). Pawneeleggins must first “establish a
prima facie case of discrimination.” Torgerson, 643 F.3d at 1046 (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). A plaintiff
establishes a prima facie case by showing that “(1) she is in a protected class;
(2) she was qualified for an open position; (3) she was denied that position; and
(4) the [employer] filled the position with a person not in the same protected
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class.” Id. (alteration in original) (quoting Dixon v. Pulaski Cnty. Special Sch.
Dist., 578 F.3d 862, 867-68 (8th Cir. 2009)). Once a prima facie showing of
discrimination is made, the burden “shifts to [the defendant] to ‘articulate a
legitimate, nondiscriminatory reason for not hiring’ ” the plaintiff. Id. (quoting
Dixon, 578 F.3d at 868). “[T]he ultimate burden [then] falls on [the plaintiff] to
produce evidence sufficient to create a genuine issue of material fact regarding
whether [the defendant’s] proffered nondiscriminatory justifications are mere
pretext for intentional discrimination.” Id. (first and second alterations in
original) (quoting Pope v. ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005)).
Here, Pawneeleggins fails to state a claim for which relief can be granted
for employment discrimination under 42 U.S.C. § 1981. He alleges that he is a
member of a protected class, that he was qualified for an open position, and
that he was denied that position. Docket 1 at 4. But he makes no allegations
regarding the person that Qdoba ultimately hired for the open position. See id.
at 4-5. Thus, he fails to allege that Qdoba “filled the position with a person not
in the same protected class” as is required under Torgerson. See 643 F.3d at
1046 (citing Dixon, 578 F.3d at 867-68). Pawneeleggins’s claim under 42 U.S.C.
§ 1981 is dismissed without prejudice under 28 U.S.C. §§ 1915(e)(B)(ii) and
1915A(b)(1).
D. 	Strike Under 28 U.S.C. § 1915(g)
The court finds that Pawneeleggins’s complaint fails to state a claim
upon which relief may be granted. Section 1915(g) states as follows:
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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 Pawneeleggins’s complaint is dismissed for failure
to state a claim upon which relief may be granted, this dismissal will count as
a strike.
Thus, it is ORDERED:
1. 	That Pawneeleggins’s motion for leave to proceed in forma pauperis
(Docket 2) is granted.
2. 	That the institution having custody of Pawneeleggins is directed that
whenever the amount in Pawneeleggins’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 	Pawneeleggins’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 $402 filing fee is paid.
3. 	That Pawneeleggins’s complaint (Docket 1) is dismissed without
prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
4. 	That 	this 	action 	constitutes 	a 	strike 	against 	Pawneeleggins 	for
purposes of the three-strikes rule under 28 U.S.C. § 1915(g).
5. 	That judgment is entered in favor of Kim, Hiring Manager at Qdoba
Mexican Grill, and against Pawneeleggins.
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6. 	That Pawneeleggins’s motion for appointment of counsel (Docket 5)
is denied as moot.
Dated January 4, 2023.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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