United States District Court, D. South Dakota, Southern Division
ORDER DENYING MOTION TO APPOINT COUNSEL, DENYING
MOTIONS REQUESTING ORDERS, DENYING RULE 60 MOTION, AND
E. SCHREIER UNITED STATES DISTRICT JUDGE
Alexander Schroder Palomarez, is an inmate at the South
Dakota State Penitentiary in Sioux Falls. He filed a pro se
civil rights lawsuit under 42 U.S.C. § 1983, Docket 1,
and now moves the court to order defendants to allow him to
contact certain individuals outside of the prison and to
grant him relief from a state court judgment. For the
following reasons, the court denies Palomarez's motions
and directs service of his complaint.
complaint, Palomarez alleges that he has information
concerning two Rapid City Police Officers who were killed.
Docket 1 at 5. He alleges that he has tried to tell people
this information through the mail, but the police and
penitentiary do not want people to know what he has to say.
Id. Six months into his sentence, he was taken to
the special security office at the South Dakota State
Penitentiary and handcuffed to a chair. Id. at 4.
There, a special security officer ripped up Palomarez's
mail, including legal mail. Id. The officer told
Palomarez that he would not get his mail until he stopped
trying to tell people his “story.” Id.
When Palomarez asked the officer what his name was, he was
rebuffed, being told “that's not important.”
this episode, Palomarez has had difficulties with his mail.
Id. His envelopes have been brought back to his cell
opened, with all of the contents missing. Id. He has
tried different kinds of mail and postage, but nothing has
worked. Id. at 5. He also alleges that his habeas
claim is being interfered with as a result of the tampering
with his mail. Id.
November 7, 2016, Palomarez filed this complaint. He raised
claims that defendants violated his right to access the
courts, violated his rights to use the mail system, and
retaliated against him for accessing the courts and sending
mail. Id. at 4-5. He states that he did not appeal
his claims to the highest level of the prison grievance
system because defendants did not respond to his complaints
and only retaliated against him further. Id. As
relief, Palomarez requests the court to order defendants to
stop interfering with his mail and access to the courts.
Id. at 7.
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);
Parker v. Porter, 221 F.App'x 481, 482 (8th Cir.
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.”
Abdullah v. Minnesota, 261 F. App'x 926, 927
(8th Cir. 2008); Beavers v. Lockhart, 755 F.2d 657,
663 (8th Cir. 1985). Under 28 U.S.C. § 1915A, the court
must screen prisoner complaints and dismiss them if they are
“(1) 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
Screening Under § 1915A
Palomarez's Failure to Fully Grieve Claims
complaint, Palomarez states that he did not fully exhaust his
claims through the prison grievance process because
defendants did not answer his kites, he is retaliated against
because of his grievances, and he has tried to follow the
“chain of command, ” but it did not “do
[him] any good.” Docket 1 at 4. The Eighth Circuit
Court of Appeals has “excused inmates from complying
with an institution's grievance procedures when officials
have prevented prisoners from utilizing the
procedures[.]” Gibson v. Weber, 431 F.3d 339,
341 (8th Cir. 2005). “An inmate's subjective belief
that the ...