Bordeaux v. State of South Dakota Law Enforcement et al

Filing 21

MEMORANDUM OPINION AND ORDER adopting 14 Report and Recommendation; denying 15 Motion to Void; overruling 16 Objection to Report and Recommendation, dismissing complaint without prejudice and assessing first strike for purposes of the three-strike rule under 28 USC 1915(g). Signed by U.S. District Judge Karen E. Schreier on 10/28/15. (TAL)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JEFFREY BORDEAUX,

5:15-CV-05029-KES

Plaintiff,
vs.
STATE OF SOUTH DAKOTA LAW
ENFORCEMENT, UNITED STATES
MARSHALS,

MEMORANDUM OPINION AND
ORDER DENYING MOTION TO
VOID, ADOPTING REPORT
AND RECOMMENDATION,
AND DISMISSING COMPLAINT

Respondent.
Plaintiff, Jeffrey Bordeaux, filed this lawsuit pursuant to 42 U.S.C.
§ 1983, naming the State of South Dakota Law Enforcement and the United
States Marshals as defendants. Docket 1. This matter was referred to
Magistrate Judge Veronica L. Duffy for handling pretrial matters pursuant to
28 U.S.C. § 636(b)(1) and this court’s standing order of October 16, 2014.
Magistrate Judge Duffy “screened” this case pursuant to 28 U.S.C. §§ 1915
and 1915A and recommends dismissal of all of Bordeaux’s claims for failure to
state a claim upon which relief may be granted pursuant to §§ 1915(e)(2)(B)(ii)
and 1915A(b)(1). Docket 14. Bordeaux objects to the recommendation. Docket
16. He also moves to “void” the report and recommendation. Docket 15. For
the reasons below, Magistrate Judge Duffy’s report and recommendation is
adopted, Bordeaux’s motion is denied, and the complaint is dismissed.

FACTUAL BACKGROUND
Bordeaux filed this complaint on April 22, 2015. Docket 1. Magistrate
Judge Duffy found that, liberally construed, the complaint “sets forth claims
for false arrest and false imprisonment in connection with his arrest on state
charges of trespassing, impersonation to deceive a law enforcement officer, and
criminal entry into a motor vehicle.” Docket 14 at 6 (citing Docket 1 at 5).
Magistrate Judge Duffy recommends these claims be dismissed under Heck v.
Humphrey, 512 U.S. 477 (1994). Docket 14 at 6-9. Bordeaux timely filed
objections to the report and recommendation. Docket 16. He moves to void the
court’s application of §§ 1915 and 1915A, essentially arguing that the statutes
are unconstitutional. Docket 15.
LEGAL STANDARD
Review of a magistrate judge’s report and recommendation is governed
by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure.
Pursuant to 28 U.S.C. § 636(b)(1), the court reviews de novo any objections
that are timely made and specific. See Fed. R. Civ. P. 72(b) (“The district judge
must determine de novo any part of the magistrate judge’s disposition that has
been properly objected to”).
DISCUSSION
Bordeaux does not raise any clear objections. The majority of his filing is
an explanation of government and liberty in general. He also reiterates the
contents of his complaint. In his objection, he touches on the two arguments
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that he raises more clearly in his motion to void. See Docket 16 at 1 and 2. He
argues that the constitution allows him to proceed in forma pauperis and avoid
§ 1915A’s screening procedure. Docket 15 at 1. He also claims that this court,
rather than a magistrate judge, should respond to his complaint. Id. at 1.
I.

§ 1915A Is Constitutional

Bordeaux argues that he has the right to petition the government, and
§§ 1915 and 1915A violate that right. “[T]he Petition Clause protects the right
of individuals to appeal to courts and other forums established by the
government for resolution of legal disputes.” Borough of Duryea, Pa. v.
Guarnieri, 131 S. Ct. 2488, 2494 (2011). This right is not violated by § 1915,
which allows the court to dismiss a complaint before service, or §1915A, which
requires the court to screen prisoners’ complaints. The Eighth Circuit Court of
Appeals has rejected constitutional objections to § 1915. See Christiansen v.
Clarke, 147 F.3d 655 (8th Cir. 1998) (§ 1915 challenged under the due process
and equal protections clauses).
The claim also fails under the First Amendment. The filing of an inmate
lawsuit is a protected First Amendment activity. Haynes v. Stephenson, 588
F.3d 1152, 1155-56 (8th Cir. 2009) (quoting Lewis v. Jacks, 486 F.3d 1025,
1029 (8th Cir. 2007)). Bordeaux filed this lawsuit; his right has been exercised.
Bordeaux essentially challenges the process by which the court dismisses the
lawsuit. That process does not infringe upon his First Amendment rights.
Therefore, this objection is overruled.
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II.

Magistrate Judge Duffy Has the Authority to Issue a Report
and Recommendation

Bordeaux argues that the district court rather than a magistrate judge
should respond to his complaint. He challenges Magistrate Judge Duffy’s
authority in this case. The case was referred to Magistrate Judge Duffy
pursuant to 28 U.S.C. § 636(b)(1)(B) and this court’s October 16, 2014 order.
Under § 636(b)(1)(B), “[A] judge may also designate a magistrate judge to . . .
submit to a judge of the court proposed findings of fact and recommendations
for the disposition, by a judge of the court . . . of prisoner petitions challenging
conditions of confinement.” “The consent of the parties is not required under
this section.” Newsome v. E.E.O.C., 301 F.3d 227, 230 (5th Cir. 2002). The
referral was valid under § 636(b)(1)(B).
Bordeaux objects, arguing that the date of the court’s order precedes the
acts in his complaint. The order, however, is a standing order from this court
referring prisoner § 1983 cases to Magistrate Judge Duffy. This matter was
properly referred to Magistrate Judge Duffy. Bordeaux’s objection is overruled.
Bordeaux’s objections are styled as a complaint. He raises no objection
to Magistrate Judge Duffy’s application of the Heck doctrine, does not attempt
to refine his claims, and does not explain why he disagrees with the report and
recommendation. Bordeaux presents essentially the same arguments in his
motion as his objections. For this reason and the reasons explained above, his
objections are overruled, and his motion is denied.

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III.

Bordeaux’s Filing Fee.

If Bordeaux’s suit had been allowed to proceed and he prevailed on the
merits, he would have recovered the filing fee. The legislative history and the
case law interpreting the Prison Litigation Reform Act (PLRA), however,
instruct that unsuccessful prison litigants, like any other litigants, do not get
their filing fees back if their cases are dismissed. The fact that Bordeaux’s case
is dismissed under the screening procedures of §§ 1915 and 1915A does not
negate his obligation to pay the fee. See Ashley v. Dilworth, 147 F.3d 715, 716
(8th Cir. 1998) (Under the PLRA prisoners are required to pay filing fees in full.
The only issue is whether the inmate pays the entire filing fee at filing or in
installments). “[T]he PLRA makes prisoners responsible for their filing fees the
moment the prisoner brings a civil action or files an appeal.” In re Tyler, 110
F.3d 528, 529-30 (8th Cir. 1997). Bordeaux remains responsible for the
$350.00 filing fee.
Bordeaux is advised that the dismissal of this lawsuit will be considered
a first “strike” for purposes of the Prison Litigation Reform Act. 28 U.S.C.
§ 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may
be granted, unless the prisoner is under imminent danger of
serious physical injury.
Therefore, it is ORDERED
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1. Bordeaux’s motion to void (Docket 15) is denied.
2. Bordeaux’s objections (Docket 16) to the report and recommendation
are overruled.
3. The magistrate judge’s report and recommendation (Docket 10) is
adopted and Bordeaux’s § 1983 complaint (Docket 1) is dismissed
without prejudice.
4. This action constitutes the first strike against Bordeaux for purposes
of the three-strike rule under 28 U.S.C. § 1915(g).
Dated October 28, 2015.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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