Johnston v. Dooley et al
Filing
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ORDER for Service and denying 10 Motion for Attorney Fees; denying 17 Motion for Bill of Costs. Signed by US Magistrate Judge Veronica L. Duffy on 12/10/2014. (JLS)
FILED
UNITED STATES DISTRICT COURT
DEC 10 2014
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DAVID H. JOHNSTON,
4: 14-CV-04125-LLP
Plaintiff,
ORDER FOR SERVICE AND DENYING
MOTIONS FOR ATTORNEY'S FEES
(DOCKET # 10 AND 17)
vs.
ROBERT DOOLEY, WARDEN; AND
DENNIS KAEMINGK, SD SECRETARY
OF CORRECTIONS;
Defendants.
INTRODUCTION
Plaintiff, David H. Johnston ("Johnston") is an inmate at the Mike Durfee
State Prison ("MDSP") in Springfield, South Dakota. He has filed a pro se
lawsuit pursuant to 42 U.S.C. § 1983, alleging the defendants have violated his
civil rights.
On August 11,2014, plaintiff, filed his Complaint in this matter along
with a motion for leave to proceed inJannapauperis. Dockets 1,3 & 4. On
August 13, 2014, the court granted Johnston leave to proceed inJanna
pauperis and assessed an initial partial filing fee pursuant to 28 U.S.C.
§ 1915(b)(I). Docket 8. The court ordered Johnston to pay an initial partial
filing fee of $21.96 by September 30,2014. Though no payments were made
before September 30, Johnston has paid $22.50 toward the filing fee.
Thereafter, the court ordered Johnston to re-file his Complaint on the standard
form. See Docket 13. Johnston has now complied and filed his Complaint on
the standard form. Docket 14.
DISCUSSION
A.
Screening Pursuant to 28 U.S.C. § 1915A
28 U.S.C. § 1915A requires the court to "screen" prisoner complaints. It
states as follows:
§ 1915A. Screening
(a) Screening.-The court shall review, before docketing, if
feasible, or in any event, as soon as practicable after docketing,
a complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officer or employee of a
governmental enti ty.
(b) Grounds for dismissal.-On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of
the complaint, if the complaint
(1) is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
(c) Definition.-As used in this section, the term "prisoner" means
any person incarcerated or detained in any facility who is
accused of, convicted of, sentenced for, or adjudicated
delinquent for, violations of criminal law or the terms and
conditions of parole, probation, pretrial release, or diversionary
program.
B.
Johnston's Complaint survives screening
Liberally construed, Johnston's Complaint alleges the defendants have
deprived him of his First Amendment right of access to the courts. Johnston
asserts he has been injured by the defendants' denial of his access to the
courts because the alleged inadequacy of the legal resources at the MDSP
caused his inability to file an adequate and/ or timely state habeas action.
Johnston claims his prison sentence has been or will be extended because he
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was unable to file an adequate and/ or timely state habeas action. As such, his
First Amendment claim is sufficient to survive screening pursuant to 28 U.S.C.
§ 1915 and 1915A.
C.
Johnston's Motions for Fees and Costs (Docket # 10 and 17) are
Premature
Johnston has filed two motions requesting an award of attorney's fees
.and costs. Docket 10 and 17. In both motions, Johnston requests and Order
awarding him "court costs, filing fees $350.00 and preparation costs in the
amount of $3,600.00." Johnston provided the court with a prepared Order
directing deposit of the funds in a Wells Fargo banking account, complete with
account and routing numbers.
A party may be awarded attorney's fees in a § 1983 civil rights suit if he
is a "prevailing party" who "obtains at least some relief on the merits of his
claim." Casey v. City of Cabool, Missouri. 12 F.3d 799, 804 (8th Cir. 1994).
See 42 U. S. C. § 1988 ("In any action or proceeding to enforce a provision of
section ... 1983 ...the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney's fee as part of the costs.").
Likewise, costs may be awarded to the prevailing party in a civil suit under
Fed. R. Civ. P. 54(d). Unless and until Johnston becomes the prevailing party,
however, his motions for attorney's fees and costs are premature.
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CONCLUSION and ORDER
The Complaint has been screened as required by the Prison Litigation
Reform Act ("PRLA"), 28 U.S.C. § 1915. The Court has determined the
Complaint is sufficient to survive screening. Therefore, it is ORDERED:
1. The United States Marshal shall serve a copy of the Complaint (Doc. 14),
Summons, and this Order upon defendants as directed by plaintiff. All
costs of service shall be advanced by the United States.
2. Plaintiff shall serve upon defendants, or if appearance has been entered
by counsel, upon their attorney, a copy of every further pleading or other
document submitted for consideration by the Court. He shall include
with the original paper to be filed with the Court a certificate stating the
date a true and correct copy of any document was mailed to defendants
or their counsel. Any paper received by a district judge or magistrate
judge which has not been filed with the Clerk or which fails to include a
certificate of service will be disregarded by the Court.
3. Johnston's Motions for Attorney's Fees and Costs (Docket # 10 and 17)
are DENIED without prejudice as premature.
.{'l'\
DATED this
1D. day of December, 2014.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate
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