Johnston v. Dooley et al

Filing 13

ORDER adopting in part and denying in part 7 Report and Recommendation. Signed by U.S. District Judge Lawrence L. Piersol on 4/11/2016. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

fILED
APR 1 1 2016

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~ CUD
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CIV 15-4126
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Plaintiff,
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vs.
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ORDER
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ROBERT DOOLEY, Warden,
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Mike Durfee State Prison, in his
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official and individual capacities;
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DENNIS KAEMINGK, Secretary of
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Corrections for the State of South Dakota, *
in his official and individual capacities;
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MARTY JACKLEY, Attorney General
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for the State of South Dakota, in his
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official and individual capacities;
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LARRY LOVREN, Brown County
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States Attorney, in his official and
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individual capacities;
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ED LIGHTENBERG, Director of the
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Board of Pardons and Paroles in his
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official and individual capacities;
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BRAD LEWANDOWSKI, Parole Officer *
for the South Dakota Board of
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Pardons and Paroles in his official
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and individual capacities; and
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CHRIS GROSS, Police Detective for the
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Aberdeen Police Department, in his
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official and individual capacities;
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Defendants.
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DAVID H. JOHNSTON,

Plaintiff David H. Johnston has requested that this case be held in abeyance pending the
outcome of the case that he presently has pending in South Dakota Circuit Court in Brown County,
South Dakota. The goal of the Brown County lawsuit is to meet the "favorable-termination" rule
from Heck v. Humphrey, 512 U.S. 477 (1994). Meeting that rule is necessary for this case to
proceed.

As the record now stands, and as Judge Duffy observed in her Report and

Recommendation, the September 18, 2014 decision of the South Dakota Board of Pardons and
Parole recognizing a three-year sentence computation error on a prior sentence is not the type of
decision which meets the requirements of the favorable termination rule.
The Court does therefore adopt the Report and Recommendation with one exception. It is
true that at this time Plaintiff Johnston's lawsuit does fail to state a cause of action. However, he is
now making an attempt to meet the favorable termination rule. This Court will not hold this lawsuit
in abeyance for however long it may be necessary to see what determination the South Dakota courts
make. The request for holding this action in abeyance is denied. However, given the present attempt
to meet the favorable-termination rule, this lawsuit is not considered to be a strike for purposes of
the Prison Litigation Report Act, 28 U.S.C. § 1915(g). In all other respects, the Report and
Recommendation is adopted.

IT IS ORDERED:
1.

That the Magistrate Judge's Report and Recommendation, Doc. 7, 1s
ADOPTED in part and denied in part.

2.

That Plaintiffs Complaint, Doc. 1, is DISMISSED without prejudice for
failure to state a claim upon which relief can be granted.

3.

That Plaintiff is advised that the dismissal of this lawsuit will not be
considered a "strike" for purposes of the Prison Litigation Reform Act. 28
U.S.C. § 1915(g).

4.

That Plaintiff remains responsible for payment of the balance of the $350.00
filing fee.

Dated this I Ith day of April, 2016.
BY THE COURT:

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ATTEST:
JOSEPH HAAS, CLERK
By:

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Depu

awrence L. Piersol
United States District Judge