Getzlaff v. Westby et al
ORDER dismissing 7 Complaint filed by Bowe Bently Getzlaff without prejudice. By Magistrate Judge Charles S. Miller, Jr. (BG) Distributed on 2/7/2017 (jt). (Main Document 9 replaced on 2/7/2017) (jt).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Bowe Bently Getzlaff,
Tim Westby, et. al.,
ORDER OF DISMISSAL
Case No. 1:16-cv-373
The plaintiff, Bowe Bently Getzlaff (“Getzlaff”), is an inmate at the James River
Correctional Center (“JRCC”). He initiated the above-entitled civil rights action pro se in late
October 2016, with the submission of an application to proceed in forma pauperis, which the court
granted in an order dated November 11, 2016, and a complaint. On November 18, 2016, Getzlaff
filed notice of his consent to the undersigned’s exercise of jurisdiction. This matter is now before
the undersigned for an initial screening as mandated by 42 U.S.C. § 1915A.
My #31 moler tooth was broken beyond repare, and subsequently cut out by a dentist
due to a piece of metal I bit into located inside an oatmeal creme pie. The creme pie
was purchased by me and distributed by TW Vending.
I am seeking relief of $500,000 due to ongoing fear and anxiety concerns. I have
great trouble eating after broken tooth extraction.
(Docket No. 7) (errors in original).
Notably, Getzlaff neglects to mention when or where he purchased the oatmeal creme pie
in question. Given that he has named Ward County as a defendant, the court shall assume for the
purposes of its initial review that he purchased the oatmeal creme pie from the commissary while
in custody at the Ward County Jail.
STANDARD GOVERNING INITIAL REVIEW
The Prison Litigation Reform Act of 1995 (“PLRA”) requires an initial court screening of
all civil actions brought by prisoners that relate to prison conditions or that seek redress from a
governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The screening is required even
when the prisoner has paid the filing fee. Lewis v. Estes, Case No. 00–1304, 242 F.3d 375 (table);
2000 WL 1673382, at *1 (8th Cir. Nov. 8, 2000) (unpublished per curiam). The purpose of the
screening requirement is to weed out claims that clearly lack merit with the hope that this will help
to lessen the burdens imposed by the ever-rising numbers of prisoner suits, which too often are
frivolous and without merit. Jones v. Bock, 549 U.S. 199, 202-03 (2007); Woodford v. Ngo, 548
U.S. 81, 83-84 (2006). In conducting the screening, the court must dismiss a complaint or portion
thereof if its claims are legally frivolous or malicious, fail to state a claim on which relief may be
granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915A(b); 42 U.S.C. § 1997e (c)(1).
Neither 42 U.S.C. § 1983 nor the PLRA imposes any heightened pleading requirements.
Jones v. Bock, 549 U.S. at 211-12. Consequently, in order to state a cognizable claim, the complaint
need only meet the minimum requirements of Fed. R. Civ. P. 8(a)(2), which are that it contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (per curiam).
The court is obligated to construe a pro se complaint liberally and hold it to a less stringent
standard than what normally would be required of attorneys. Id.; see also Federal Express Corp. v.
Holowecki, 552 U.S. 389, 402 (2008). This does not mean that the court must accept everything or
anything that is filed by pro se prisoners, however. In enacting the screening requirement, Congress
obviously expected it to be more than an a ritualistic exercise and that courts would only allow to
go forward those claims that are cognizable, that seek relief from a non-immune party, and that are
not obviously frivolous or malicious.
To meet the minimal pleading requirements of Rule 8(a)(2) for stating a cognizable claim,
something more is required than simply expressing a desire for relief and declaring an entitlement
to it. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007). The complaint must state
enough to “‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.’” Erickson v. Pardus, 551 U.S. at 93 (quoting Bell Atlantic, 550 U.S. at 555). And, even
though the complaint is to be liberally construed, it must also contain enough to satisfy Bell
Atlantic’s “plausibility standard.” E.g., Ventura-Vera v. Dewitt, 417 F. App’x 591, 592, 2011 WL
2184269, *1 (8th Cir. 2011) (unpublished per curiam) (citing Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2007) for the appropriate post-Bell Atlantic standard); see also Stone v. Harry, 364 F.3d 912,
914 (8th Cir. 2004) (pro se complaints must allege sufficient facts to state a claim). Complaints that
offer nothing more than labels and conclusions or a formulaic recitation of the elements are not
sufficient. Frivolous claims are those that are clearly baseless, fanciful, fantastic, or delusional. See
Denton v. Hernandez, 504 U.S. 25, 32-34 (1992).
To state a cognizable claim under § 1983, a plaintiff must normally allege a violation of a
right secured by the Constitution or the laws of the United States and that the alleged deprivation
was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988);
Walker v. Reed, 104 F.3d 156, 157 (8th Cir. 1997). Even under liberal pleading standards, a pro
se litigant, at the very least, must invoke rights under the Constitution or federal law in order to
plead a § 1983 claim. Walker v. Reed, 104 F.3d at 157-58.
Finally, even though the court is obligated to construe pro se complaints liberally, the court
is not required to ignore facts that are pled by a prisoner when they undermine the prisoner’s claim.
The court may accept as true all facts pled in the complaint and conclude from them that there is no
claim as a matter of law. E.g., Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753-54
(7th Cir. 2002) (citing other cases).
To be clear, Getzlaff neither takes issue with the extraction of his cracked tooth nor
otherwise complains about the dental care he has received while in custody. Rather, he asserts a
claim arising out of the consumption of an allegedly defective food product that he presumably
purchased from a jail commissary. This is problematic.
Getzlaff initiated this action pursuant to 42 U.S.C. § 1983. However, he does not assert that
any of the named defendants violated his Constitutional rights. Rather, he is asserting what can only
be construed as common law tort claims for negligence. See e.g., McGowan v. Hulick, 612 F.3d
636, 640 (7th Cir. 2010) ( "[N]egligence, even gross negligence, does not violate the
Constitution.").1 Consequently, he cannot proceed under § 1983.2
As an aside, it should be noted that all of the named defendants save Ward County are private actors. Section
1983 authorizes lawsuits for monetary damages or injunctive relief against those acting under the color of state law who
violate a citizen's constitutional rights. Actions taken by private actors are generally not deemed to be the actions of a
state actor for § 1983 purposes unless the state has so directed or dominated the activity that it functionally becomes a
state action. See DeBauche v. Trani, 191 F.3d 499, 507 (4th Cir. 1999).
Even if the court were to simply overlook the fact that Getzlaff initiated this action under § 1983 and treat
this as a common law torts action, it would still be subject to dismissal albeit on different grounds. As this matter does
not involve a federal question, the court’s jurisdiction would hinge in part upon there being complete diversity of
citizenship between the parties. As plead by Getzlaff, there is no such diversity here.
Getzlaff's complaint is devoid of any cognizable § 1983 claim. Consequently, the
above-entitled action is DISMISSED without prejudice.
IT IS SO ORDERED.
Dated this 7th day of February, 2017.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court
Case 1:16-cv-00373-CSM Document 9 Filed 02/07/17 Page 6 of 6
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