Kurtenbach v. Bertsch et al

Filing 17

ORDER determining in forma pauperis status and ORDER Dismissing Case. Signed by Chief Judge Jeffrey L. Viken on 5/8/13. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
MATTHEW C. KURTENBACH,
Plaintiff,
vs.
LEANN BERTSCH,
STEVE FOSTER,
JOSH BEARFIELD,
CATHY JENSEN,
DENNIS KAEMINGK,
RICK LESLIE,
MELINDA JOHNSON,
ROBERT LAMPERT,
CARL VOIGTBERGER,
KYA GALLO, and
MELODY NORRIS,
Defendants.

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CIV. 12-5077-JLV

ORDER DETERMINING IN
FORMA PAUPERIS STATUS
AND ORDER DISMISSING
CASE

On March 8, 2013, plaintiff Matthew C. Kurtenbach, a prisoner in the
custody of the State of Wyoming appearing pro se, filed an amended
complaint (1) pursuant to 42 U.S.C. §§ 1983, 1985 and 1986 asserting
various violations of his civil rights and (2) pursuant to 28 U.S.C. §§ 2201
and 2202 seeking declaratory relief relating to the length of an unexpired
Wyoming state court sentence. (Docket 14). Mr. Kurtenbach also filed a
motion for leave to proceed in forma pauperis. (Docket 3).
Section 1915 of Title 28 of the United States Code, as amended by the
Prison Litigation Reform Act (PLRA), governs proceedings filed in forma

pauperis. When a prisoner files a civil action in forma pauperis, the PLRA
requires a prisoner to pay an initial partial filing fee when possible. See
28 U.S.C. § 1915(b)(1). The initial 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) the average monthly deposits to the prisoner’s account; or
(B) 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.
Id. In support of his motion, Mr. Kurtenbach provided a copy of his
prisoner trust account report signed by an authorized prison official.
(Docket 4). In his motion, Mr. Kurtenbach declares he has no assets or
income of any kind and has existing financial obligations for three minor
children which are not being paid at this time because of his incarceration.
Based on these representations, the court finds Mr. Kurtenbach is indigent
and qualifies for in forma pauperis status. This finding does not discharge
the $350 filing fee, but rather allows a prisoner the opportunity to pay the
filing fee in installments. See 28 U.S.C. § 1915(b) (“[I]f a prisoner brings a
civil action or files an appeal in forma pauperis, the prisoner shall be
required to pay the full amount of the filing fee.”).
Under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, the court must review a
complaint and identify cognizable claims or dismiss the complaint if it is

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frivolous, malicious, or fails to state a claim upon which relief may be
granted. This screening process “applies to all civil complaints filed by [a]
prisoner[], regardless of payment of [the] filing fee.” Lewis v. Estes, 242 F.3d
375 *1 (8th Cir. 2000) (unpublished) (citing Carr v. Dvorin, 171 F.3d 115,
116 (2d Cir. 1999). “[A] complaint, containing as it does both factual
allegations and legal conclusions, is frivolous where it lacks an arguable
basis either in law or in fact. . . . § 1915(d)’s term ‘frivolous,’ when applied to
a complaint, embraces not only the inarguable legal conclusion, but also the
fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
A complaint fails to state a claim upon which relief can be granted under
§ 1915(e) “if construing the allegations in the light most favorable to the
plaintiff it appears beyond doubt that the plaintiff cannot prove any set of
facts which would entitle him to relief.” Goodroad v. Bloomberg, 129 F.3d
121 at *1 (8th Cir. 1997) (unpublished table opinion).
“In general, exhaustion of state remedies ‘is not a prerequisite to an
action under § 1983,’ . . . even an action by a state prisoner . . . .” Heck v.
Humphrey, 512 U.S. 477, 480 (1994) (citing Patsy v. Board of Regents of
Florida., 457 U.S. 496, 501 & 509 (1982) (emphasis in original). However, a
habeas corpus proceeding brought pursuant to 28 U.S.C. § 2254 “is the
exclusive remedy for a state prisoner who challenges the . . . duration of his
confinement and seeks immediate or speedier release, even though such a

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claim may come within the literal terms of § 1983.” Id. at 481 (citing Preiser
v. Rodriguez, 411 U.S. 475, 488-90 (1973)). “Preiser did not create an
exception to the ‘no exhaustion’ rule of § 1983; it merely held that certain
claims by state prisoners are not cognizable under that provision, and must
be brought in habeas corpus proceedings, which do contain an exhaustion
requirement.” Id. (emphasis in original). In Heck, the court held:
[I]n order to recover damages for allegedly unconstitutional . . .
imprisonment . . . a § 1983 plaintiff must prove that the . . .
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus . . . . A claim for
damages bearing that relationship to a . . . sentence that has not
been so invalidated is not cognizable under § 1983. Thus, when
a state prisoner seeks damages in a § 1983 suit, the district court
must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his . . . sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate
that the . . . sentence has already been invalidated.
Id. at 486-87 (referencing 28 U.S.C. § 2254) (emphasis in original).
By his complaint, Mr. Kurtenbach asserts he sought relief regarding
the consecutive-concurrent sentence issue (which is the crux of his
complaint) before the Wyoming Medium Correctional Facility as a grievance,
but the facility concluded his claim was not a grievable issue. (Docket 1 at
p. 13). However, there is no assertion that he sought relief and prevailed on
the sentencing issue before the United States District Court for the District
of Wyoming which imposed the original sentence, from the Wyoming

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Supreme Court on direct appeal, or by habeas corpus relief from the same
district court. Despite failing to exhaust these remedies regarding the
length of his Wyoming sentence, Mr. Kurtenback in the present action seeks
money damages for his “incarceration beyond February 22, 2013 (the date
that all of his sentences should have expired).” Id. at p. 16. “The plain
language of the complaint demonstrates [Mr. Kurtenbach] is challenging the
duration of his confinement, i.e., if he were to prevail in his section 1983
suit, the result would necessarily imply the invalidity of his continued
confinement.” Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995).
The United States Supreme Court has made clear “[w]e do not engraft
an exhaustion requirement upon § 1983, but rather deny the existence of a
cause of action. Even a prisoner who has fully exhausted available state
remedies has no cause of action under § 1983 unless and until the . . .
sentence is reversed, expunged, invalidated, or impugned by the grant of a
writ of habeas corpus.” Heck, 512 U.S. at 489. Dismissal of the complaint
without prejudice for failure to state a claim is the only proper result. Heck,
512 U.S. at 489; see also Schafer, 46 F.3d at 45 (“under Heck, 42 U.S.C.
§ 1983 [is] unavailable for claims of unconstitutional deprivations of good
time credits . . . . dismissal to be without prejudice so that Shafer can refile
his complaint should he succeed in challenging the legality of his continued
confinement through appropriate state or federal remedies . . . .”);

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Gautreaux v. Sanders, 395 Fed. Appx. 311, 312 (8th Cir. 2010) (“dismissal
of Heck-barred claim should be without prejudice so plaintiff can refile if he
satisfies Heck requirement . . . .”) (citing Shafer, 46 F.3d at 45).
Accordingly, it is hereby
ORDERED that Mr. Kurtenbach’s motion for leave to proceed in forma
pauperis (Docket 3) is granted.
IT IS FURTHER ORDERED that the amended complaint (Docket 14) is
dismissed without prejudice.
IT IS FURTHER ORDERED that Mr. Kurtenbach’s motions seeking a
ruling in this case (Dockets 10, 11, 12, 13, 15 & 16) are denied as moot.
Dated May 8, 2013.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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