United States District Court, D. South Dakota, Southern Division
ORDER DISMISSING COMPLAINT
Lawrence L. Piersol, United States District Judge
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."
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.
Access to the Courts
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.
Right to Counsel
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.
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.
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).
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 ...