United States District Court, D. South Dakota, Western Division
OPINION AND ORDER
CHARLES B. KORNMANN United States District Judge
is incarcerated at the South Dakota State Penitentiary. He
pleaded guilty to first degree rape and was sentenced in 2013
to 50 years custody. He filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, 5:15-CV-05007-JLV,
challenging that conviction and sentence. The petition was
denied based upon procedural default.
instituted an action under 42 U.S.C. § 1983 in the
Southern Division against Warden Young and others,
4:16-CV-04156-KES, claiming defendants violated his right to
access to the courts and access to use the U.S. Postal
Service in retaliation for his attempts to give information
to the public, the media, and the families concerning the
2011 deaths of two Rapid City police officers. He claimed
that he was denied the use of the prison grievance procedures
to exhaust his administrative remedies. He contended that
defendants' actions interfered with his habeas case and
his ability to report the information he possesses in
exchange for relief in his criminal case. Following initial
screening, plaintiff moved to dismiss that case, contending
that he had filed the § 1983 action in anger because his
habeas petition was denied. He stated in his motion to
dismiss that he was instead corresponding with the South
Dakota Attorney General and the Department of Criminal
Investigation concerning his claimed information about the
police officer deaths. The motion was granted and that case
seven months later, plaintiff instituted the instant §
1983 claim, which is nearly identical to the claims made in
the previous case.
after filing this § 1983 claim, he filed a second
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, 5:17-cv-05070-JLV. A report and recommendation
for dismissal based upon lack of subject matter jurisdiction
for failure to obtain permission from the Court of Appeals is
pending in that case.
filed in this case an application to proceed without the
prepayment of the filing fee. Under the Prison Litigation
Reform Act, "if a prisoner brings a civil action or
files an appeal in forma pauperis, the prisoner
shall be required to pay the full amount of a filing
fee." 28 U.S.C. § 1915(b)(1). Plaintiff must pay
the full $350 filing fee notwithstanding whether or not the
matter is subsequently dismissed as frivolous after review
under 28 U.S.C. § 1915(e)(2). A prisoner must pay, as an
initial partial filing fee, 20% of the greater of the average
monthly deposits to the prisoner's account or the average
monthly balance of the prisoner's account for the last
six months. 28 U.S.C. § 1915(b)(1)(A) and (B). The Court
finds that plaintiff is required to make an initial partial
filing fee of $26.64.
Prison Litigation Reform Act requires the Court to screen
prisoner complaints and dismiss any complaint that is
"(1) frivolous, malicious, or fails to state a claim
upon which relief may be granted or (2) seeks monetary relief
from a defendant who is immune from such relief" 28
U.S.C. § 1915A(b). I am required to give the plaintiff s
pro se complaint liberal construction and identify
any discernable cognizable claim. Solomon v. Petrav,
795 F.3d 777, 787 (8th Cir. 2015). I have conducted an
initial review as required by § 1915 A.
Claims Against Judges and Clerks.
outset, plaintiffs claims against the United States District
Court Judge and Clerk and the 7th Judicial Circuit Court
Judges and Clerks must be dismissed. Plaintiff alleges in his
complaint that defendants violated his right to use the U.S.
Mail to contact his family members, attorneys, or various law
enforcement agencies "who may be able to assist"
him with "this matter involving the collusion from the
D.C.I., State Penitentiary, U.S. District Court, and
Pennington County 7th Judicial Circuit." Plaintiffs
complaint is a vague reference to the claimed failure of the
state and federal courts to address his claims. As such, he
is suing these defendants in their capacity of officers of
the court. The doctrine of judicial immunity bars suits
against judges performing judicial functions.
r See Mireles v. Waco. 502 U.S. 9,
9, 112 S.Ct. 286, 287, 116 L.Ed.2d 9 (1991). The
United States Court of Appeals for the Eighth Circuit has
"specifically held that clerks of court are entitled to
immunity the same as judges." Davis v. McAteer.
431 F.2d 81, 82 (8th Cir. 1970). Further, any claims against
state court judges or clerks are barred by the
Rooker-Feldman doctrine. Dist. of Columbia Court
of Appeals v. Feldman. 460 U.S. 462, 486 (1983),
Edwards v. City of Jonesboro, 645 F.3d 1014, 1018
(8th Cir. 2011).
Claims Against Prison Officials.
alleges that the prison official defendants interfered with
his regular U.S. Mail, preventing him from disseminating
information concerning the death of two police officers
killed in the line of duty. Prisoners have a First Amendment
right to send and receive mail, subject to inspection and
censorship to protect legitimate governmental interests.
Thongvanh v. Thalacker, 17 F.3d 256, 258 (8th Cir.
1994), Wolff v. McDonnell. 418 U.S. 539, 575, 94
S.Ct. 2963, 2984, 41 L.Ed.2d 935 (1974).
further claims that defendants interfered with his legal
mail. In order to protect an inmate's Sixth Amendment
right to counsel and state law attorney-client privilege, the
law may require that confidential legal mail must be opened
in the presence of the prisoner and only inspected for the
presence of contraband. Harrod v. Halford, 773 F.2d
234, 235 (8th Cir. 1985). Plaintiffs claims as to
interference with his legal mail are in the nature of claims
that defendants have interfered with his access to the
courts. "Prisoners have a constitutional right of access
to the courts." Bounds v. Smith, 430 U.S. 817,
821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (U.S. 1977).
"The right of access to the courts is satisfied if the
prisoner has 'the capability of bringing contemplated
challenges to sentences or conditions of confinement before
the courts."' Zink v. Lombardi. 783 F.3d
1089, 1108 (8th Cir. 2015) (quoting Lewis v. Casey,
518 U.S. 343, 356, 116 S.Ct. 2174, 2182, 135 L.Ed.2d 606
outset, a prisoner claiming a violation of the right to
access the courts must allege standing, that is, an actual
injury. White v. Kautzkv. 494 F.3d 677, 680 (8th
Cir. 2007). Plaintiff must show "the hindrance of a
nonfrivolous and arguably meritorious underlying legal
claim." Id. In other words, plaintiff must
allege "that a nonfrivolous legal claim had been
frustrated or was being impeded." Id. Plaintiff
has failed to allege that the interference with his mail
interfered with him bringing a meritorious legal claim. What
he claims is that prison officials have interfered with his
ability to disseminate the information he has concerning the
death of two police officers. That is not sufficient to state
a claim for violation of the right to access the courts.
plaintiff s requested relief in this matter is "do not
let me die in here." In other words, he is requesting
relief as to the length of his incarceration. The exclusive
remedy for a state prisoner seeking to attack the fact or
length of his custody is an action pursuant to 28 U.S.C.
§ 2254. In the papers filed since the complaint,
plaintiff contends that he pleaded guilty to a crime he did
not commit, that he was promised extreme leniency, that he is
in prison because prison officials, law enforcement, and the
courts are all colluding to prevent him from disseminating
his information to deceased police officers' families,
that he was working with law enforcement as to the underlying
facts surrounding the deaths of the two police officers, that
he is innocent, that he has exculpatory evidence, and that
defendants are colluding to violate his Constitutional ...