Holzer v. Lamphere et al
Filing
9
OPINION AND ORDER Dismissing Complaint and denying as moot 8 MOTION to Appoint Counsel. Signed by U.S. District Judge Roberto A. Lange on 12/9/2015. (JLS)
UNITED STATES DISTRICT COURT
FILED
DISTRICT OF SOUTH DAKOTA
DEC 0 9 2015
WESTERN DIVISION
~4rn
BRIAN MICHAEL HOLZER,
Plaintiff,
5: 15-CV-05085-RAL
vs.
FRED LAMPHERE, HEATHER
PLUNKETT, RON WHITE, DOUG
PARROW, UNKNOWN BUTTE COUNTY
SHERIFF'S DEPUTIES, UNKNOWN
MEADE COUNTY SHERRIFF'S
DEPUTIES, UNKNOWN SOUTH
DAKOTA ASSISTANT ATTORNEY
GENERALS,
OPINION AND ORDER DISMISSING
COMPLAINT AND DENYING MOTION
TO APPOINT COUNSEL
Defendants.
Plaintiff Brian Michael Holzer ("Holzer") filed this lawsuit pursuant to 42
U.S.C. § 1983. Doc. 1. Holzer is an inmate at Mike Durfee State Prison in
Springfield, South Dakota. The Court has "screened" this case pursuant to 28
U.S.C. § 1915A. For the following reasons, the complaint does not survive
screening.
I.
FACTS ALLEGED IN THE COMPLAINT
In August 2012, Holzer gave Wes Neuenschwander permission to sell his
assets. Doc. 1 at iI 8. Holzer was arrested in Iowa on rape charges and later
transferred to Butte County Jail in South Dakota. Id. at ilil 16, 35. Holzer
revoked his permission to Neuenschwander and signed power of attorney to his
sister and mother. Id. at il 18. Neuenschwander took some of Holzer's property
and sold it. Id. at il 10. Holzer told law enforcement in Butte, Meade, and
Perkins counties about the situation and that he did not want
Neuenschwander selling his property. Id. at ilil 13, 19, 24. He also asked the
South Dakota Attorney General's office for assistance, but they did not
respond. Id. at ilil 63-65.
Holzer filed a civil suit in state court in September 2014. Id. at il64. In
August 2015, he filed a motion for default judgment in Butte County, South
Dakota. Id. at il75. The default judgment was granted. Id. at il76. Holzer is
currently attempting to execute the default judgment. Id. at i180.
Holzer filed this complaint on November 23, 2015. Doc. 1. He argues that
defendants did not prosecute Neuenschwander and others for what he alleges
was a theft of his possessions. Id. at ilil 88-89. He claims that the defendants
violated his rights under the Fifth and Fourteenth Amendments and
specifically the equal protection clause. Id. In relief, he requests a declaratory
judgment stating that defendants violated his rights as well as money damages.
Doc. 1 at I-III. Holzer also moves this court to appoint counsel. Doc. 8.
II.
LEGAL STANDARD
The court must accept the well-pleaded allegations in the complaint as
true and draw all reasonable inferences in favor of the non-moving party.
Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014). Civil rights
and pro se complaints must be liberally construed. Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citation omitted); Bediako v. Stein Mart, Inc., 354 F.3d 835,
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839 (8th Cir. 2004). Even with this construction, "a prose complaint must
contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985); Ellis v. City of Minneapolis, 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 a plaintiff cannot make the requisite showing, dismissal is
appropriate." Abdullah v. Minnesota, 261 F. App'x 926, 927 (8th Cir. 2008);
Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985).
III.
DISCUSSION
The complaint mentions the Fifth and Fourteenth Amendments as well
as the equal protection clause, but does not set forth facts under any theory for
a viable claim under the Fifth or Fourteenth Amendments. Holzer is not a
member of a class or being discriminated against. He does not allege a process
claim.
Instead of setting forth a viable cause of action under the Fifth or
Fourteenth Amendments, Holzer's complaint essentially takes issue with the
investigation of the alleged crime committed by Neuenschwander. Even if
Holzer was constitutionally protected from this failure to investigate, the
attachments to his complaint show fairly extensive investigations by the Butte
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and Meade county sheriff's departments. The attachments also show that
defendants took numerous steps to stop a potential crime from being
committed. Defendants told Neuenschwander not to take Holzer's assets.
Doc. 1 at
ifif
11, 20, 25. The Butte County Sherriff's Department catalogued
Holzer's possessions. Id. at if 22. Lamphere went to the Meade County Jail,
spoke with Holzer, and called Neuenschwander to keep him from taking
Holzer's possessions. Id. at
ifif
36-37. These documents also show defendants
had a legitimate reason for failing to prosecute: they believed Neuenschwander
had permission to sell the property.
Holzer's complaint at its core concerns a question over ownership of
property and reimbursement for property taken by Neuenschwander. This is an
issue for the state civil court. Holzer already has obtained a judgment in that
court. Id. at
if
76.
While Holzer's complaint contains extensive facts, he does not allege a
legal theory necessary to show how these defendants allegedly violated his
constitutional rights. Holzer fails to state a claim upon which relief may be
granted. His complaint is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 19 15A(b)( 1).
The court considers dismissal of this lawsuit 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
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be granted, unless the prisoner 1s under imminent danger of
serious physical injury.
IV.
ORDER
Accordingly, it is ORDERED
1. Holzer's complaint, Doc. 1, is dismissed without prejudice for failure
to state a claim upon which relief may be granted pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
2. Because the complaint is dismissed, Holzer's motion to appoint
counsel, Doc. 8, is denied as moot.
3. This action constitutes the first strike against Holzer for purposes of
the three-strike rule under 28 U.S.C. § 1915(g).
Dated December q~, 2015.
BY THE COURT:
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