Cochrun et al v. Chipowsky et al

Filing 19

ORDER Dismissing Case. Signed by U.S. District Judge Karen E. Schreier on 6/2/2014. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DEAN ALLEN COCHRUN;
JAMIE LYNN COCHRUN;
G.D.C; and
T.M.C.
Petitioners,
vs.
ROBIN CHIPOWSKY;
ANDREW CHIPOWSKY; and
VARIOUS STATE AGENTS and
AGENCIES,
Respondents.

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Civ. 13-4092-KES

ORDER DISMISSING COMPLAINT

Petitioner, Dean Allen Cochrun, an inmate at the South Dakota State
Penitentiary, filed a pro se document styled as a “Writ of Habeas Corpus.”
Docket 1. In the petition, Cochrun alleges that he and Jamie Lynn Cochrun
were falsely imprisoned as part of a conspiracy between his in-laws and state
and federal agents to kidnap his children, TC and GC. Cochrun asks that he
and Jamie Lynn Cochrun be released from custody, awarded ten million dollars
in damages, and given a jury trial. Cochrun further requests that his children
be returned to his custody. The court referred Cochrun’s case to Magistrate
Judge John E. Simko who recommended that the court reclassify the
complaint as a civil rights action pursuant to 42 U.S.C. §1983. Magistrate
Judge Simko further recommended that the court dismiss Cochrun’s complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) for failure

to state a claim upon which relief may be granted. Lastly, Magistrate Judge
Simko recommended that all other pending motions be denied as moot.
Cochrun objects to Magistrate Judge Simko’s findings. For reasons set forth
herein, the court adopts the magistrate judge’s report and recommendation.
DISCUSSION
The court must make a de novo review of all objections that are timely
made and specific. See Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990). Here,
Cochrun has specifically objected to reclassification of his complaint as a
§ 1983 action and to the subsequent dismissal of his complaint. Cochrun
contends that he filed a joint petition for Writ of Habeas Corpus and a § 1983
civil rights action.
While the court appreciates Cochrun’s concern for convenience, Rule 2(d)
of the Rules Pertaining to Section 2254 Cases requires a petitioner to file a
petition in substantially the same form as appended to the rules or as
prescribed by a local district court rule. The prescribed forms do not allow
Cochrun to file both a Writ of Habeas Corpus and a § 1983 civil rights action in
the same document.
In the alternative, if the court were to construe Cochrun’s complaint as a
habeas petition in part, the court agrees with Magistrate Judge Simko that
Cochrun’s pleading is procedurally flawed in three ways. First, Cochrun fails to
name his custodian, the warden of South Dakota State Penitentiary, as a

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Respondent. Rule 2 of Rules Pertaining to Section 2254; see also Piercy v.
Parratt, 579 F.2d 470, 472 (8th Cir. 1978). Second, the pleading does not
provide information to satisfy Cochrun’s burden of showing that all state
habeas remedies have been exhausted. 28 U.S.C. § 2254(b)(1)(A); see also
Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir. 1998). Third, the Supreme
Court has found that “[i]f a state prisoner is seeking damages, he is attacking
something other than the fact or length of his confinement, and he is seeking
something other than immediate or more speedy release–the traditional
purpose of habeas corpus. In the case of a damages claim, habeas corpus is
not an appropriate or available federal remedy.” Preiser v. Rodriguez, 411 U.S.
475, 494 (1973). Therefore, because Cochrun is seeking ten million dollars in
damages, a § 1983 remedy is the appropriate action.
With regard to Cochrun’s § 1983 action, the court similarly rejects
Cochrun’s objection claiming that his complaint was sufficiently specific.
Pursuant to 28 U.S.C. § 1915A, the court must identify clear and specific
claims or must dismiss the complaint if it is frivolous, malicious, or fails to
state a claim upon which relief may be granted. The court may dismiss a
complaint for failure to state a claim when the plaintiff fails to plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. V.
Twombly, 550 U.S. 544, 570 (2007). In reviewing a complaint for failure to state
a claim, “[t]he court must presume that the factual allegation in the complaint

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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)). Although a pro se complaint need
not contain detailed factual allegations, it must contain “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555. Simply stated, a pro se complaint must
“allege facts sufficient to support the claims advanced.” Stone v. Harry, 364
F.3d 912, 914 (8th Cir. 2004).
More specifically, to state a § 1983 claim against a private actor for
conspiracy, the petitioner must “establish not only that a private actor caused
a deprivation of constitutional rights, but that the private actor willfully
participated with state officials and reached a mutual understanding
concerning the unlawful objective of conspiracy.” Crawford v. Van Buren Cnty.,
678 F.3d 666, 670 (8th Cir. 2012).
Here, Cochrun’s allegations that the Chipowskys conspired with
government agents to kidnap his children and terminate his parental rights are
conclusory and do not include specific facts showing that the conspirators had
a meeting of the minds to kidnap his children and terminate his parental
rights. Cochrun attributes his lack of information about the conspiracy to a
large cover-up, but he fails to show sufficient facts to substantiate his claim.
Because the court is not required to “supply additional facts, nor will [it]
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construct a legal theory that assumes facts that have not been pleaded,” the
court finds that dismissal is appropriate. Id. (Citing Dunn v. White, 880 F.2d
1188, 1197 (10th Cir. 1989)).
Lastly, Cochrun objects to Magistrate Judge Simko’s finding that
Cochrun has at least two prior “strikes” for failure to state a claim. Cochrun,
however, has no legal basis for his objection. See Civ. No. 12-6068 and Civ. No.
11-5097. This court finds that the instant action amounts to the third strike
against Cochrun. Accordingly, in the future, Cochrun may not “bring a civil
action or appeal a judgment in a civil action or proceeding under [forma
pauperis]. . . unless he can show he is under imminent danger of serious
physical harm.” 28 U.S.C. § 1915(g). It is therefore
ORDERED that Magistrate Judge Simko’s report and recommendation
(Docket 15) is adopted. The court rejects Cochrun’s objections to Magistrate
Judge Simko’s report and recommendation (Docket 16) and dismisses without
prejudice Cochrun’s action (Docket 1) for failure to state a claim upon which
relief may be granted.
IT IS FURTHER ORDERED that the petitioner’s motion for appointment
of counsel (Docket 6) is denied as moot.
IT IS FURTHER ORDERED that the petitioner’s motion for appointment
of a guardian ad litem (Docket 7) is denied as moot.

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IT IS FURTHER ORDERED that the petitioner’s motion for “Trinity Rule”
(Docket 12) is denied as moot.
Dated June 2, 2014.
BY THE COURT:

/s/

Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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