United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION TO AMEND, NOT ADOPTING REPORT AND RECOMMENDATION, AND DISMISSING CASE
KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE
Petitioner, Wade Elliot Bowles, an inmate at the Mike Durfee State Prison, filed a complaint pursuant to 42 U.S.C. § 1983 on April 9, 2015. Docket 1. The matter was referred to Magistrate Judge Veronica L. Duffy pursuant to 28 U.S.C. § 636(b)(1)(B) and this court’s October 16, 2014 standing order. Magistrate Judge Duffy screened Bowles’ complaint and recommends that it be dismissed for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Docket 8 at 1-2. Bowles objects to the report and recommendations and moves to amend his complaint. Docket 9. He also filed a supplemental brief in support of his claims. Docket 10. For the following reasons, the report and recommendation is not adopted, Bowles’ motion to amend is granted, and his amended complaint is dismissed.
According to his amended complaint, Bowles requested copies of his habeas appeal petition from Sonny Walters, the prison contract attorney at Mike Durfee State Prison, so he could file it in the Eighth Circuit Court of Appeals. Docket 9 at 1. One of the arguments raised in his habeas petition was that South Dakota was violating federal law by prosecuting American Indians, including Bowles, for crimes that were committed in Indian Country. Id. at 2.
Bowles’ petition was 52 pages long. Id. This included transcripts from his original court proceedings. Id. He claims he was forced to leave some of these transcripts out of his final petition so he could present his argument and receive copies for all of the parties he intended to “serve.” Id. Bowles wanted copies to send to the Eighth Circuit Court of Appeals, the Solicitor General, the Crow Creek Tribal Chairman, the Secretary of the Interior, Governor Dennis Daugaard, the Bureau of Indian Affairs (“BIA”), Attorney General Marty Jackley, U.S. Attorney General Eric Holder (now Loretta Lynch), and the President of the United States. Id. at 4. He also wanted a copy for himself. Id. When Bowles requested ten copies of his petition, Walters refused, saying those parties did not need a copy. Id. at 3. Bowles requested 520 pages of copies and was given 208. Id.
On April 9, 2015, Bowles filed this complaint. Docket 1. A month later, he filled out a § 1983 complaint form with the same information. Docket 3. He claims Walters denied him access to the courts by refusing to give him 10 complete copies of his petition. Id. All other defendants are sued only in their role as Walters’ supervisors. Docket 9 at 7.
The case was referred to Magistrate Judge Duffy for screening pursuant to 28 U.S.C. § 1915. Docket 8. Magistrate Judge Duffy recommends dismissal of all defendants except Walters because they were sued only in their supervisory roles, which § 1983 does not permit. Id. at 8. As to Walters, Magistrate Judge Duffy recommends that Bowles’ complaint be dismissed for failure to state a First Amendment claim because he did not show that a nonfrivilous legal claim was impeded or frustrated. Id. at 11. She also recommends dismissal of the complaint because Bowles failed to exhaust his claims. Id. at 13.
Bowles objects to these recommendations. He filed a document which he called a “Motion to Amend Civil Rights Complaint and Objections to Report and Recommendation.” Docket 9. Bowles does not clearly delineate between the sections which are meant to be a motion, an amended complaint, or objections.
The court must accept the well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014). Civil rights and pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). 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); Ellis v. City of Minneapolis, 518 F. App’x 502, 504 (8th Cir. 2013). Civil rights complaints cannot be merely conclusory. Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993).
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). “If a plaintiff cannot make the requisite showing, dismissal is appropriate.” Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985).
As an initial matter, Bowles moves to amend his complaint. A motion for leave to amend is committed to the sound discretion of the district court. Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998). “A party may amend its pleading once as a matter of course within . . . 21 days after serving it.” Fed.R.Civ.P. 15(a)(1)(A). Bowles’ complaint has not been served. The court grants Bowles leave to amend his complaint and accepts his filing, (Docket 9), as an amended complaint.
Bowles’ amended complaint is nearly identical to his original complaint. He explains why he wanted to send his petition to certain parties and expands his arguments, but his claim remains ...