Lewandowski v. Turner et al

Filing 9

ORDER Dismissing Case. Signed by U.S. District Judge Karen E. Schreier on 4/8/2013. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
GREGORY ALLEN LEWANDOWSKI,
Plaintiff,
vs.
COUNTY OF DAY;
COURT EMPLOYEES OF PUBLIC
DEFENDER’S OFFICE;
PUBLIC PROSECUTOR’S OFFICE;
CLERK OF COURT’S OFFICE;
RANDY TURNER,
Court appointed attorney,
Day Co. Public Defender’s Office;
CURT EWINGER,
Court appointed attorney,
Day Co. Public Defender’s Office;
DANNY R. SMEINS,
Public prosecutor,
Day Co. Prosecutor’s Office; and
SUSAN COMPAN, Clerk,
Day Co. Clerk of Court’s Office,
Defendants.

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Civ. 13-3011-KES

ORDER DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING COMPLAINT

Plaintiff, Gregory Allen Lewandowski, is an inmate at the South Dakota
State Penitentiary in Sioux Falls, South Dakota. Lewandowski has filed a pro
se civil rights lawsuit pursuant to 42 U.S.C. § 1983 and has requested leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Docket 1; Docket 3.
Under the Prison Litigation Reform Act (PLRA), a prisoner who “brings a
civil action or files an appeal in forma pauperis . . . shall be required to pay the
full amount of a filing fee.” 28 U.S.C. § 1915(b)(1). The court may, however,

accept partial payment of the initial filing fee where appropriate. Therefore,
“ ‘[w]hen an inmate seeks pauper status, the only issue is whether the inmate
pays the entire fee at the initiation of the proceedings or over a period of time
under an installment plan.’ ” Henderson v. Norris, 129 F.3d 481, 483 (8th Cir.
1997) (quoting McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997)).
Significantly, the PLRA prohibits a prisoner from requesting in forma
pauperis status in an action or appeal
if the prisoner has, on 3 or more prior occasions, while incarcerated
or detained in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may
be granted, unless the prisoner is under imminent danger of serious
physical injury.
§ 1915(g) (emphasis added). Lewandowski has previously proceeded in forma
pauperis in three other cases that were dismissed pursuant to the screening
procedures of § 1915. See Lewandowski v. Day Cnty. Cir. Ct. et al., Civ. 094089; Lewandowski v. Flemmer, Civ. 11-4125; Lewandowski v. Day Cnty. Cir.
Ct., Civ. 11-4106. Moreover, Lewandowski has not established that he is under
imminent danger of serious physical injury. Accordingly, the court denies
Lewandowski’s request to proceed in forma pauperis. Docket 3. Lewandowski
must pay the requisite $350 filing fee.
But the inquiry does not end there. The PLRA requires the court to
screen Lewandowski’s complaint to determine whether any claims should be
dismissed. Pursuant to the PLRA, the court must dismiss an action or any

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portion thereof if the prisoner has raised a claim that “(i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.”
§ 1915(e)(2)(B)(i)–(iii).
STANDARD OF REVIEW
A claim “is frivolous where it lacks an arguable basis in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). The court may, therefore,
dismiss a claim as frivolous when it is “based on an indisputably meritless
legal theory” or where the factual contentions “are clearly baseless.” Id. at 327.
The court may dismiss a complaint for failure to state a claim when “it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46 (1957).
In reviewing a complaint under this standard, “[t]he court must presume that
the factual allegations in the complaint are true and accord all reasonable
inferences from those facts to the [pleader].” Valiant-Bey v. Morris, 829 F.2d
1441, 1443 (8th Cir. 1987) (citing Holloway v. Lockhart, 792 F.2d 760, 762 (8th
Cir. 1986)).
Pro se complaints, “ ‘however inartfully pleaded,’ [are] held to ‘less
stringent standards than formal pleadings drafted by lawyers.’ ” Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)); see also Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995)
(noting that “civil rights pleadings should be construed liberally”). Nonetheless,
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a pro se complaint must comply with the minimal requirements set forth in the
Federal Rules of Civil Procedure, which specifically require pleadings to contain
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). Moreover, although a pro se complaint need not
contain detailed factual allegations, it must “allege facts sufficient to support
the claims advanced.” Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). The
court is not required to “supply additional facts, nor will [it] construct a legal
theory that assumes facts that have not been pleaded.” Id. (citing Dunn v.
White, 880 F.2d 1188, 1197 (10th Cir. 1989)). Finally, a pro se complaint must
contain “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 the complaint does not contain these bare essentials,
dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir.
1985).
DISCUSSION
“[T]o state a claim for relief under § 1983, a plaintiff must allege
sufficient facts to show ‘(1) that the defendant(s) acted under color of state law,
and (2) that the alleged wrongful conduct deprived the plaintiff of a
constitutionally protected federal right.’ ” Zutz v. Nelson, 601 F.3d 842, 848
(8th Cir. 2010) (quoting Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th
Cir. 2009)). In the instant case, Lewandowski claims that defendants “allowed
[t]he 5th Judicial Circuit Court to impose enhanced penalties of [p]rincipal
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offence, provisions hidden meritless in the Part II (prior conviction charge) of
[various docketed judgments].” Docket 1 at 3. Lewandowski therefore alleges
that he has been falsely imprisoned for seven-and-one-half years “in a form of
manstealing.” Id. To remedy the alleged violation, Lewandowski requests that
the court vacate the illegal sentence and award him $7.5 million in damages.
Id. at 4.
The primary issue raised by Lewandowski’s complaint relates to the
legality of his confinement.1 As the United States Supreme Court has noted,
“habeas corpus is the exclusive remedy for a state prisoner who challenges the
fact or duration of his confinement and seeks immediate or speedier release,
even though such a claim may come within the literal terms of § 1983.” Heck v.
Humphrey, 512 U.S. 477, 481 (1994) (citing Preiser v. Rodriguez, 411 U.S. 475,
488–90 (1973)). Therefore, insofar as Lewandowksi seeks to invalidate his
allegedly illegal sentence, his sole remedy is a writ of habeas corpus.
With respect to Lewandowski’s request for damages, the Supreme Court
has held that
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,

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Lewandowski has raised such issues twice before. See Lewandowski v.
Day Cnty. Cir. Ct. et al., Civ 09-4089; Lewandowski v. Day Cnty. Cir. Ct., Civ 114106. In each case, the court dismissed Lewandowski’s complaint for failure to
state a claim upon which relief may be granted.
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declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance
of a writ of habeas corpus.
Heck, 512 U.S. at 486–87. Because Lewandowski has not alleged that his
conviction has been invalidated, the court finds that he has failed to state a
claim upon which relief may be granted. Accordingly, it is
ORDERED that Lewandowski’s motion for leave to proceed in forma
pauperis (Docket 3) is denied. Lewandowski must pay the $350 filing fee to the
Clerk, U.S. District Court.
IT IS FURTHER ORDERED that Lewandowski’s complaint (Docket 1) is
dismissed for failure to state a claim upon which relief may be granted
pursuant to 28 U.S.C. § 1915. Lewandowski is notified that he may not file any
additional civil cases in forma pauperis unless he is “under imminent danger of
serious physical injury” as set forth at 28 U.S.C. § 1915(g). Lewandowski may
still file civil cases if the complaint is accompanied by the $350 filing fee
applicable to civil actions.
Dated April 8, 2013.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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