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Abdo v. Young

United States District Court, D. South Dakota, Southern Division

August 27, 2019

JOHN DAVID ABDO JR., Plaintiff,
v.
DARIN YOUNG, WARDEN; Defendant.

          ORDER DISMISSING COMPLAINT

          Lawrence L. Piersol, United States District Judge

         Plaintiff, John David Abdo Jr. is an inmate at the Mike Durfee State Prison in Springfield, South Dakota and filed a pro se lawsuit under 42 U.S.C. 1983. Docket 1. This Court granted leave to proceed in forma pauperis and granted Abdo's motion to file his "Second Amended Complaint." Dockets 11 and 16. Thus, this 28 U.S.C. 1915A screening is based on Abdo's "Second Amended Complaint."

         FACTUAL ALLEGATIONS

         Abdo argues that the Prison Litigation Reform Act ("PLRA") is unconstitutional because it violates his First Amendment (access to the courts) and Sixth Amendment (right to counsel) rights. Abdo claims that the PLRA is "repugnant" to the First Amendment and "prevents prisoners from petitioning the government for redress of grievances." Docket 13 at 2-4. Abdo refers to a visit with Attorney Shannon Falon on December 15, 2017. Docket 13 at 1. Falon allegedly told Abdo that he had not exhausted his administrative remedies. Abdo claims he sent Falon his argument as to why the PLRA was unconstitutional and she allegedly responded, "due to her bar card she could not file a claim she did not believe had a chance." Id. at 1.

         A. Access to the Courts

         Abdo claims that on November 4, 2017, he asked for guidance on how to fill out an application. Id. at, 4. He alleges that the unit coordinator told him where the forms were available but wrote that "we do not help you fill them out." Id. Abdo alleges that this fails the "bounds analysis." Id. Abdo claims that the cost of materials is also an issue. Id. at 5. He claims that while paying child support and having a facility job he is unable to maintain/aid his family as well as pay for paper-copying fees. Id. He claims that paying "$0.25 a copy is kind of deliberate indifference to the right of adequate access to the courts inflicting cruel and unusual punishment." Id. Abdo alleges that he lives in the "classification unit.. . [and it] has no access to [the] law library or any competent legal aid and the classification process takes around 4-8 weeks." Id. at 11. Abdo argues that "the lack of law library or legal aid hinder[s] one[']s ability to have meaningful access to the courts." Id.

         B. Right to Counsel

         Abdo claims that the Sixth Amendment right to counsel is inseparable from the First Amendment right of access to the courts. The "access to the courts means nothing without access to counsel, they are inseparable concepts and must run together." Id. at 5. Abdo argues that when a prisoner does not have counsel it is oppressive and forces the prisoner to "learn, without a teacher, what takes law students years to learn with a teacher, in a critical time which could cause irreparable injury and harm." Id. at 5. Abdo argues that this amounts to discrimination against prisoners and cruel and unusual punishment. Id. Abdo further argues that in order to make access to the courts meaningful, "prisoners need not only [have] the physical tools to create t and submit their complaints and petitions for relief, but more often than not, due to their own deficiencies in education or language skills, they also need the intellectual tools possessed by others." Id. at 6.

         C. Conspiracy Allegation

         Abdo alleges that Judge Bruce Anderson, prosecutor Scott Podhradsky and public defender Keith Goehring conspired against him in violation of 18 U.S.C. § 241. Id. at 9. Abdo claims there is evidence of conspiracy through the waiver of fees, and the lack of court costs, fines, and restitution. Id. Judge Anderson, Podhradsky, and Goehring are not named as defendants. Id. at 1.

         LEGAL BACKGROUND

         The court- must assume as true all facts well pleaded in the complaint. Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995). Civil rights and pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007); 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 Fed.Appx. 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 Fed.Appx. 481, 482 (8th Cir. 2007).

         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 it does not contain these bare essentials, dismissal is appropriate. Beavers v. Lockhart,755 F.2d 657, 663 (8th Cir. 1985); Bell Atl. Corp. v. Twombly,550 U.S. 544, 555 (2007). If it does not contain these bare essentials, dismissal is appropriate. Beavers, 755 F.2d at 663. Bell Atlantic requires that a complaint's factual allegations must be "enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true." Id. at 555; see also Abdullah v. Minnesota, 261 Fed.Appx. 926, 927 (8th ...


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