Goldsmith v. Dooley et al

Filing 13

ORDER Dismissing Case. Signed by Chief Judge Karen E. Schreier on 1/20/2012. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CHARLES KYLE GOLDSMITH, The
People of the Republic of the
Republic State of South Dakota ex
rel., relator for Charles Goldsmith;
Plaintiff,
vs.
ROBERT DOOLEY, Warden at Mike
Durfee State Prison;
JENNIFER STANWICK, Associate
Warden at Mike Durfee State Prison;
SUE JACOB, Associate Warden at
Mike Durfee State Prison; and
JOHN DOE, The New Staff Attorney
at Mike Durfee State Prison,
Defendants.

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Civ. 11-4181-KES

ORDER DENYING MOTIONS,
GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS,
AND DISMISSING COMPLAINT

Plaintiff, Charles Kyle Goldsmith, filed a pro se civil rights complaint
pursuant to 42 U.S.C. § 1983. In his complaint, Goldsmith alleges that the
defendants “acting in harmony” have deprived him of access to the courts in
violation of his constitutional rights. Goldsmith is incarcerated at the Mike
Durfee State Prison in Springfield, South Dakota. Goldsmith moves to recuse
Chief Judge Karen Schreier from this case. Goldsmith also moves for leave to
proceed in forma pauperis, seeks a permanent injunction regarding legal
copies, and moves to amend his complaint to add two additional defendants,
Diane Romkema and Tammy Doyle.

DISCUSSION
I.

Motion for Recusal
Goldsmith moves to recuse Judge Schreier from hearing his case.

Goldsmith asserts that Judge Schreier should recuse herself because she “has
a longstanding relationship with the South Dakota Attorney General Marty
Jackley and his family” and that relationship will cause Judge Schreier to
“show prejudice to relator/plaintiff.” Docket 5 at 1. Goldsmith also asserts that
recusal is appropriate because of a purported conflict of interest arising from
Attorney General Jackley’s service as United States Attorney and resulting
appearances in Judge Schreier’s court. Id. at 2. Goldsmith’s third allegation is
that he “can obtain affidavits from well known drug dealers who can attest to
the fact that certain members of the Jackley family (to be revealed in these
Affidavits) have received special favors/protection from Judge Schreier in
concert with Marty Jackley to overlook criminal wrong doing (drug deals).” Id.
Goldsmith did not submit any affidavits or allege any specific facts in support
of his allegations of bias.
28 U.S.C. § 455(a) requires a judge to recuse herself in “any proceeding
in which [her] impartiality might reasonably be questioned.” If the facts
Goldsmith alleges were true, that would certainly be the case. But “[a] judge is
not required to withdraw from hearing a case upon a mere suggestion that the
judge is disqualified to sit, and it is improper for the judge to do so unless the

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alleged cause of recusation is known by the judge to exist or is shown by proof
to be true in fact.” 48A C.J.S. Judges § 316 (emphasis added). Goldsmith’s
wild, untrue, and unsupported accusations that Judge Schreier conspired to
help members of the Jackley family avoid prosecution are insufficient to
disqualify Judge Schreier.
Section 455(b) also requires a judge to recuse herself where “[s]he has a
personal bias or prejudice concerning a party[.]” Goldsmith asserts that Judge
Schreier’s relationship with Attorney General Jackley would cause her to be
biased against Goldsmith. While the South Dakota Attorney General’s office
does represent Mike Durfee State Prison in some cases, Judge Schreier has no
personal relationship with Attorney General Jackley that would cause her to be
biased against Goldsmith. Most importantly though, Attorney General Jackley
is not a party to this case. “A showing of bias against a party as opposed to
counsel . . . is required under section 455.” Souder v. Owens-Corning Fiberglas
Corp., 939 F.2d 647, 653 (8th Cir. 1991). While bias for or against an attorney
can be imputed to a party in certain cases, the present case is not one of them.
Id. at n.6 (explaining that bias may be imputed if it is shown that the attorney
and party share a certain characteristic, such as race, that is the source of bias
and noting that courts require proof that the alleged bias against the attorney
also caused bias to the party). Accordingly, Goldsmith’s motion to recuse Judge
Schreier is denied.

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II.

In Forma Pauperis Motion
The Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915, requires

prisoners to make an initial partial filing payment where possible, even if in
forma pauperis status is sought. “When an inmate seeks in forma pauperis
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) (internal citations
omitted). Determination of the partial filing fee is calculated according to 28
U.S.C. § 1915(b)(1), which requires a payment of 20 percent of the greater of:
(A)
(B)

the average monthly deposits to the prisoner’s account; or
the average monthly balance in the prisoner’s account for
the 6-month period immediately preceding the filing of the
complaint or notice of appeal.

Goldsmith has indicated that his average monthly deposits equal $44.97 and
his average monthly balance is $15.60. Thus, Goldsmith must make an initial
partial payment of $8.99 which is 20 percent of $44.97. Accordingly, Goldsmith
is granted in forma pauperis status.
But the inquiry does not end there. The PLRA also requires this court to
“screen” Goldsmith's complaint to determine whether it should be dismissed.
Section 1915 provides an action must be dismissed if the court determines the
claim “(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.”
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The court must assume as true all facts well pleaded in the complaint.
Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995).
Also, “although liberally construed, a pro se complaint must contain specific
facts supporting its conclusions.” Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir.
1993) (citations omitted). A plaintiff’s 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
Atlantic 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). Twombly 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 1965;
Abdullah v. Minnesota, 261 Fed. App’x 926, 927 (8th Cir. 2008) (citing Twombly
and noting complaint must contain either direct or inferential allegations
regarding all material elements necessary to sustain recovery under some
viable legal theory).
It has long been recognized that “civil rights pleadings should be
construed liberally.” Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir.
1995). The complaint, however, must at the very least contain facts that state
a claim as a matter of law and must not be conclusory. Id. Broad and
conclusory statements unsupported by factual allegations are not sufficient.

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Ellingburg v. King, 490 F.2d 1270 (8th Cir. 1974). Finally, although pro se
complaints are to be construed liberally, “they must still 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 for a pro se plaintiff,
nor construct a legal theory that assumes facts which have not been pleaded.
Id. To state a claim for relief under § 1983, a plaintiff must allege sufficient
facts to show (1) that the defendants 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)
(internal citations omitted).
Goldsmith alleges that defendants “intentionally restricted his access to
use of the Prison Law Library” and that this restriction has “caused Plaintiff
difficulty in doing research and preparation of his writs of habeas corpus,
motions, and appeals.” Docket 1 at ¶ 3. Goldsmith asserts that the defendants
moved the law library from the Lawrence Library to the Science Hall and that
library hours are scheduled during his GED class and his working hours. Id.
Inmates have a constitutional right of meaningful access to the courts
and the legal system. Lewis v. Casey, 518 U.S. 343, 351 (1996). “Meaningful
access to the courts is the capability to bring ‘actions seeking new trials,
release from confinement, or vindication of fundamental civil rights.’ ” White v.
Kautzky, 494 F.3d 677, 680 (8th Cir. 2007) (quoting Bounds v. Smith, 430 U.S.

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817, 827 (1977)). In order to prevail on an access to the courts claim, an
inmate must demonstrate that he sustained an “actual injury” as a result of
the challenged policy. Moore v. Plaster, 266 F.3d 928, 933 (8th Cir. 2001). “To
prove actual injury, a prisoner must demonstrate that a nonfrivolous legal
claim had been frustrated or was being impeded.” Hartsfield v. Nichols, 511
F.3d 826, 832 (8th Cir. 2008). Merely alleging that the law library is inadequate
is insufficient to establish actual injury. As the Supreme Court explains:
Because [precedent] did not create an abstract, freestanding right
to a law library or legal assistance, an inmate cannot establish
relevant actual injury simply by establishing that his law library or
legal assistance program is subpar in some theoretical sense. . .
[T]he inmate must go one step further and demonstrate that the
alleged shortcomings in the library or legal assistance program
hindered his efforts to pursue a legal claim. He might show, for
example, that a complaint he prepared was dismissed for failure to
satisfy some technical requirement which, because of deficiencies
in the prison's legal assistance facilities, he could not have known.
Or that he had suffered actionable harm that he wished to bring
before the courts, but was so stymied by the inadequacies of the
law library that he was unable to even file a complaint.
Lewis, 518 U.S. at 351. Goldsmith has not made the requisite showing of
injury. He alleges that it is difficult to do legal research and prepare motions,
writs, and appeals under the library system at Mike Durfee State Prison. But
Goldsmith has not demonstrated that a nonfrivolous legal claim has been
frustrated or is being impeded. It does not appear that Goldsmith was hindered
in filing the present motions. Accordingly, Goldsmith has failed to state a claim

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upon which relief may be granted and his complaint is dismissed pursuant to
28 U.S.C. § 1915.
III.

Permanent Injunction and Motion to Amend Complaint.
Goldsmith also moves for a permanent injunction and for leave to amend

his complaint. These motions stem from the same incident. Goldsmith
requested that prison employees “make copies of his ‘Affidavit of Citizenship,
Domicile, and Tax Status’ that he needed to serve upon this Honorable Court
and the Defendants. [They] refused to make these Legal copies for the Plaintiff
as she made a Legal determination that it was not a legal document.” Docket
10, Motion for Permanent Injunction. Goldsmith also asserts that there is no
indication that any of the prison employees mentioned “hold[] a bar license
which is required of any ‘person’ within the corporate state of South Dakota,
prior to practicing Law, and making Legal Determinations as a Corp. Officer of
said Corporation.” Id. at 2. Goldsmith asserts that these actions have
“intentionally and willfully depriv[ed] Plaintiff of exercising his Right to have
free and unrestricted access to the Court.” Id. Goldsmith’s amended complaint
attempts to assert a similar access to the courts claim against several prison
employees. Docket 11, Motion to Add Defendants to Lawsuit.
But as discussed above, Goldsmith has failed to show that he has
suffered any actual prejudice to a nonfrivolous legal claim. Thus, he lacks
standing to bring an access to the courts claim. See Lewis, 518 U.S. at 349.

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See also Klinger v. Dep’t of Corr., 107 F.3d 609, 617 (8th Cir. 1997) (“In Lewis v.
Casey, the Supreme Court held, based on principles of standing, that actual
injury must be proven in order to prevail on an access-to-courts claim). An
inmate is required to identify a specific injury from the alleged lost opportunity
to litigate; speculative injuries- i.e. injures that might occur, or could have
occurred- are not sufficient. See Hartsfield, 511 F.3d at 833. Because
Goldsmith’s proposed amended complaint fails to state a claim upon which
relief may be granted, it is denied. Goldsmith’s motion for a permanent
injunction is similarly deficient. Thus, it is denied and Goldsmith’s case is
dismissed pursuant to 28 U.S.C. § 1915. Therefore, it is
ORDERED that Goldsmith’s motion to recuse Judge Schreier (Docket 6)
is denied.
IT IS FURTHER ORDERED that Goldsmith’s motion for a permanent
injunction (Docket 10) and motion to amend his complaint (Docket 11) are
denied.
IT IS FURTHER ORDERED that Goldsmith’s motion to proceed in forma
pauperis (Docket 9) is granted. Goldsmith will make an initial partial filing
fee of $8.99 before February 17, 2012, made payable to the Clerk, U.S.
District Court.

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IT IS FURTHER ORDERED that Goldsmith’s complaint is dismissed for
failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.
§ 1915.
IT IS FURTHER ORDERED that the institution having custody of the
plaintiff is directed that whenever the amount in plaintiff’s trust account
exceeds $10, monthly payments that equal 20 percent of the funds credited to
the account the preceding month will be forwarded to the United States District
Court Clerk’s office pursuant to 28 U.S.C. § 1915(b)(2), until the filing fee of
$350 is paid in full.
Dated January 20, 2012.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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