Abdo v. Young

Filing 19

ORDER Dismissing Complaint. Signed by U.S. District Judge Lawrence L. Piersol on 8/27/2019. (CLR)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

JOHN DAVID ABDO JR.,

4:17-CV-04140-LLP

Plaintiff,
ORDER DISMISSING COMPLAINT

vs.

DARIN YOUNG,WARDEN;
Defendant.

Plaintiff, John David Abdo Jr. is an inmate at the Mike Durfee State Prison in

Springfield, South Dakota and filed a pro se lawsuit under 42 U.S.C. 1983. Docket 1. This Court
granted leave to proceed in forma pauperis and granted Abdo's motion to file his "Second

Amended Complaint." Dockets 11 and 16. Thus, this 28 U.S.C. 1915A screening is based on
Abdo's "Second Amended Complaint."
FACTUAL ALLEGATIONS

Abdo argues that the Prison Litigation Reform Act("PLRA")is unconstitutional because
it violates his First Amendment(access to the courts) and Sixth Amendment(right to counsel)
rights. Abdo claiihs that the PLRA is "repugnant" to the First Amendment and "prevents
prisoners from petitioning the government for redress of grievances." Docket 13 at 2-4. Abdo
refers to a visit with Attorney Sharmon Falon on December 15, 2017. Docket 13 at 1. Falon
I

allegedly told Abdo that he had not exhausted his administrative remedies. Abdo claims he sent
Falon his argument as to why the PLRA was unconstitutional and she allegedly responded,"due
to her bar card she could not file a claim she did not believe had a chance." Id. at 1.

A. Access to the Courts

Abdo claims that on November 4, 2017, he asked for guidance on how to fill out an
application. Id. at 4. He alleges that the unit coordinator told him where the forms were available

but wrote that"we do not help you fill them out."Id. Abdo alleges that this fails the "bounds
analysis."Id. Abdo claims that the cost of materials is also an issue. Id. at 5. He claims that while

paying child support and having a facility job he is unable to maintain/aid his family as well as
pay for paper-copying fees. Id. He claims that paying "$0.25 a copy is kind of deliberate
indifference to the right of adequate access to the courts inflicting cruel and unusual
punishment."Id. Abdo alleges that he lives in the "elassifieation unit.. .[and it] has no access to
[the] law library or any competent legal aid and the classification process takes around 4-8
weeks."Id. at 11. Abdo argues that "the lack oflaw library or legal aid hinder[s] one[']s ability
to have meaningful access to the eourts." Id.
B. Right to Counsel

Abdo elaims that the Sixth Amendment right to counsel is inseparable from the First
Amendment right of access to the courts. The "access to the courts means nothing without access

to counsel, they are inseparable concepts and must run together." Id. at 5. Abdo argues that when
a prisoner does not have counsel it is oppressive and forces the prisoner to "learn, without a
teaeher, what takes law students years to learn with a teacher, in a critical time which could
A

cause irreparable injury and harm."Id. at 5. Abdo argues that this amounts to discrimination
against prisoners and cruel and unusual punishment. Id. Abdo further argues that in order to
make access to the courts meaningful,"prisoners need not only[have] the physieal tools to create
\

and submit their complaints and petitions for relief, but more often than not, due to their own

deficiencies in education or language skills, they also need the intellectual tools possessed by
others."Id at 6.
l'

C. Conspiracy Allegation

Abdo alleges that Judge Bruce Anderson, prosecutor Scott Podhradsky and public
defender Keith Goehring conspired against him in violation of 18 U.S.C. § 241. Id. at 9. Abdo
claims there is evidence of conspiracy through the waiver offees, and the lack of court costs,

fines, and restitution. Id. Judge Anderson, Podhradsky, and Goehring are not named as
defendants. Id. at 1.
LEGAL BACKGROUND

The court- must assume as true all facts well pleaded in the complaint. Estate of
.

I

Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995). Civil rights and pro se
complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bediako v.
Stein Mart, /«c., 354 F.3d 835, 839 (8th Cir. 2004). Even with this construction, "a pro se
complaint must contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d

1334, 1337 (8th Cir. 1985); Ellis v. City ofMinneapolis, 518 F. App'x 502, 504 (8th Cir. 2013).
Civil rights complaints cannot be merely conclusory. Davis v. Hall, 992 F.2d 151, 152 (8th Cir.
1993); Parker v. Porter, 221 F. App'x 481,482(8th Cir. 2007).
A 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 Atl. 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); Bell
K

Atl. Corp. V. Twombly, 550 U.S. 544, 555 (2007). If it does not contain these bare essentials,
dismissal is appropriate. Beavers,!55 F.2d at 663. Bell Atlantic 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 555; see also Abdullah v.
Minnesota, 261 Fed. Appx. 926, 927 (8th Cir. 2008)(citing Bell Atlantic noting complaint must
contain either direct or inferential allegations regarding all material elements necessary to sustain
s

recovery under some viable legal theory).
ANALYSIS

A.

Failure to Exhaust Administrative Remedies

The PLRA provides that an inmate must exhaust all available administrative remedies
before bringing an action with respect to prison conditions under either section 1983 of this title,
or any other federal law. 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 741 (2001).

This mandatory exhaustion requirement applies broadly to "all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they allege

excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002); see also,

Jones V. Bock, 549 U.S. 199, 211 (2007)("There is no question that exhaustion is mandatory
under the PLRA and that unexhausted claims cannot be brought in [federal] court."). The PLRA

requires "immediate dismissal" of all unexhausted claims. Gibson v. Weber, 431 P.3d 339, 341
(8th Cir. 2005).

Before filing this action, Abdo was required to fully and properly exhaust his
administrative remedies as to each claim in the complaint. See Johnson v. Jones, 340 F.3d 624,

627-28 (8th Cir. 2003) ("If exhaustion was not completed at the time of filing, dismissal is
mandatory."). The prisoner must exhaust his administrative remedies even if the precise relief he
seeks is not available through the prison grievance system." Booth, 532 U.S. at 739-41. In order
to properly exhaust administrative remedies, Abdo is required to "tak[e] advantage of each step

the prison holds out for resolving the claim internally and by following the critical procedural
rules of the prison's grievance process." Rothman v. Lombardi, No. 4:1 l-CV-639 CEJ,2012 WL
j;

639713 at *2(E.D. Mo. Feb. 27,2012)(internal quotation marks and quotation omitted).
Here, failure to exhaust is apparent from the face of the complaint. Abdo alleges that he
filed a "kite-request slip" concerning access to the courts. Docket 13-1. Abdo fails to allege that
he exhausted administrative remedies with his right to counsel and conspiracy claims. Therefore,
dismissal is appropriate for these claims (right to counsel and conspiracy) because Abdo has not
exhausted his administrative remedies. This Court now screens Abdo's access to court's claim

pursuant to § 1915A. Even though Abdo's claims about right to counsel and conspiracy are

dismissed due to lack of exhaustion of administrative remedies, this Court will now address why
these claims fail to survive § 1915A screening.
B. Access to the Courts

Abdo fails to state a claim that the defendants violated his right of access to the courts. "The
Constitution guarantees prisoners a right to access the courts." White v. Kautzky, 494 F.3d 677,
679 (8th Cir. 2007)."'The fundamental constitutional right of access to the courts requires
prison authorities to assist inmates in the preparation and filing of meaningful legal papers by
)!

providing prisoners with adequate law libraries or , adequate assistance from persons trained in
the law.'"Entzi v. Redmann, 485 F.3d 998, 1004 (8th Cir. 2007)(quoting Bounds v. Smith, 430
U.S. 817, 828 (1977)(There is no freestanding right to a law library.)). "[P]rison officials must
provide inmates with 'meaningful access to the courts,' ... an inmate alleging a constitutional
violation must show an 'actual injury' by 'demonstrat[ing] that the alleged shortcomings in the

library or legal assistance program hindered his efforts to pursue a legal claim.' Entzi, 485 F.3d
at 1005 (quotingTeww v. Casey, 518 U.S. 343, 351 (1996)).

The Eighth Circuit held that even if an inmate can show a "complete and systematic
denial of access to a law library or legal assistance," he must still"'demonstrate that the alleged

shortcomings in t^e library or legal assistance program hindered his efforts to pursue a legal
J

claim.'"Klingerv. Department of Corr., 107 F.3d 609, 617 (8th Cir. 1997)(quoting

518

U.S. at 351). To succeed on a claim for denial of access to the courts, a plaintiff must show that
he suffered actuafinjury as a result of the defendants' actions. Lewis, 518 U.S. at 353. In order to
satisfy the actual? injury requirement, a plaintiff must "demonstrate that a nonfnvolous legal
claim had been fhistrated or was being impeded." Johnson v. Missouri, 142 F.3d 1087,1089 (8th
Cir. 1998)(quotingZeww, 518 U.S. at 353).
Here, Abdo claims that the unit he lives on does not have access to the law library or
legal aid. Docket at 11. Further he claims that paying twenty-five cents for a copy amounts to

"deliberate indifference." Id. at 5. Abdo claims a complete denial of access to a law library and
legal aid, however he has not demonstrated that the denial of access has "hindered his efforts to

pursue a legal claim." Klinger, 106 F.3d at 617. Because Abdo does not allege an injiny due to
the denial of access to the law library or legal aid, his access to the courts claim is dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i-ii).
C. Right to Counsel

The Eighth Circuit has held "[a] pro se litigant has no statutory or constitutional right to have
counsel appointed in a civil case." Stevens v. Redwing, 146 F.3d 538, 546(8th Cir. 1998). Abdo
has filed a civil case under 42 U.S.C. § 1983. Docket 13. Abdo claims that his right to access the
court is meaningless without the right to counsel, however, in this case he has no statutory or

constitutional right to counsel. Therefore, this Court finds that Abdo's right to counsel claim is
;r

dismissed for failure to exhaust administrative remedies and pursuant to 28 U.S.C. §
1915(e)(2)(B)(i-ii).
p. Conspiracy

Abdo alleges that Judge Bruce Anderson, prosecutor Scott Podhrasky, and public defender
Keith Goehring have conspired against him, however none of these individuals are named
defendants. Even if these individuals were named defendants these individuals are either immune

from suit or are not acting under the color ofthe state for § 1983 purposes. See Stump v.
)

Sparkman,435 U.S. 349, 98(1978)(Judges are immune from civil rights cases when they are
acting in their judicial capacities); Imbler v. Pachtman,424 U.S. 409, 431 (1975)(Prosecutors
are immune for their actions in "initiating a prosecution and presenting the state's case.");
Harkins v. Eldredge, 505 F.2d 802(1974)(Public defenders are not acting under the color of the
state and cannot be sued pursuant to § 1983.).
Even if these individuals were properly named defendants, Abdo does not establish facts of
"mutual understanding or meeting of the minds." Cooper v, Delo, 997 F.2d 376m 377(8th Cir.

1993); Holbird V. Armstrong-Wright,949 F.2d 1019,1020(8th Cir. 1991)(If allegations of

conspiracy are inadequate dismissal is appropriate). For the above stated reasons, this Court finds
a

Abdo's conspiracy claim is dismissed for failure to exhaust administrative remedies and pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i-ii).
Accordingly, it is ORDERED

1. That Abdo's access to the courts claim is dismissed pursuant to 28 U.S.C.

1915(e:)(2)(B)(i-ii).
2. That Abdo's conspiracy claim is dismissed for failure to exhaust administrative

remedies and pursuant to 28 U.S.C. § 1915(e)(2)(B)(i-ii).
7

3. That Abdo's right to counsel claim is dismissed for failure to exhaust administrative
remedies and pursuant to 28 U.S.C. § 1915(e)(2)(B)(i-ii).

4. That pursuant to § 1915(e)(2)(B)(ii), Abdo's complaint (Docket 13) is dismissed
without prejudice for failure to state a claim upon which relief may be granted.

DATED August

"A ,2019.
BY THE COURT:

ATTEST:

MATTHEW W. THELEN,CLERK

Lawrence L. Piersol

United States District Judge

--fit.