Hillyer v. State of South Dakota et al

Filing 9

MEMORANDUM OPINION AND ORDER denying as moot 5 Motion to Appoint Counsel; granting 8 Motion to Remand (Construed as Motion to Dismiss); granting 2 Motion for Leave to Proceed in forma pauperis. Signed by U.S. District Judge Charles B. Kornmann on 3/22/2024. MAILED to Mr. Hillyer and SD State Penitentiary on 3/27/24. (SAC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

RICHARD LEE HILLYER,

5:23-CV-05031-CBK

Plaintiff,
MEMORANDUM OPINION
vs.

AND ORDER

STATE OF SOUTH DAKOTA,R.C.P.D.,
and GRANT SCANE,
Defendants.

Plaintiff was a state court pretrial detainee at the Pennington County, South
Dakota,jail at the time he filed this complaint. He is now residing at the South Dakota
State Penitentiary. He has filed a complaint pursuant to 42 U.S.C. § 1983 and a motion

for leave to proceed informa pauperis without the prepayment of the filing fee. Plaintiff
has made the requisite showing under 28 U.S.C. § 1915. Under the Prison Litigation
Reform Act,"if a prisoner brings a civil action or files an appeal in forma pauperis, the
prisoner shall be required to pay the full amount of a filing fee." 28 U.S.C. § 1915(b)(1).
Plaintiff must pay the full $350 filing fee notwithstanding whether or not the matter is
subsequently dismissed as frivolous after review under 28 U.S.C. § 1915(e)(2).

A prisoner must pay, as an initial partial filing fee, 20% of the greater ofthe
average monthly deposits to the prisoner's account or the average monthly balance of the
prisoner's account for the last six months. 28 U.S.C. § 1915(b)(1)(A) and (B). The

Court finds that plaintiff is not required to make an initial partial filing fee.
The Prison Litigation Reform Act requires the Court to screen prisoner complaints
and dismiss any complaint that is "(1)frivolous, malicious, or fails to state a claim upon
which relief may be granted or(2)seeks monetary relief from a defendant who is
immune from such relief." 28 U.S.C. § 1915A(b). I am required to give the plaintiffs

pro se complaint liberal construction and identify any discemable cognizable claim.
Solomon v. Petrav. 795 F.3d 777, 787(8th Cir. 2015). I have conducted an initial review
as required by § 1915A.
"To state a claim under § 1983, a plaintiff must allege the violation of a right

secured by the Constitution or laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law." West v. Atkins.
487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55, 101 L. Ed. 2d 40(1988).

Plaintiff states in his pro so pleadings that, on October 11, 2021, defendant Grant
Seane used excessive force by using a "choke hold" upon plaintiff, resulting in serious
bodily injury and life-threatening harm to plaintiff. Plaintiff also contends that he was
wrongfully convicted in his October 25, 2022, state court criminal trial, which claimed

wrongful conviction was "for the purpose of prejudicing his police brutality claim.
Finally, plaintiff claims that, on April 7, 2023, his legal mail was unlawfully opened.
Plaintiff seeks to have officer Seane removed from the Rapid City Police force and
placed under arrest,just compensation, and to "expunge" the 10-25-2022 trial."
Plaintiffs complaint makes little sense without reference to his state court

criminal records. I take judicial notice ofthe records of South Dakota's Unified Judicial
System, which are available on the ecourts portal.

Defendant was arrested on October 11, 2021, in Pennington County, South
Dakota, and charged with aggravated assault against a law enforcement officer,

possession of methamphetamine, possession of alprazolam, obstructing police,jailer, or
firefighter, and displaying another's license as one's own. A habitual offender
information was also filed. 51CRI21-004457. The jury trial was held on October 25,
2022, and defendant was convicted of all counts but assault against a law enforcement
offieer. He admitted the habitual offender information. He was sentenced on August 17,

2023, to concurrent terms of 15 years and ten years on the drug charges, and 1 year on

each of the other charges. He did not appeal these convictions or sentences to the South
Dakota Supreme Court. He filed his federal complaint after his trial but prior to
sentencing.
2

While defendant was awaiting trial in the above ease, he was charged on October
25, 2022 with possession of unauthorized articles in jail and making a false report to
authorities. A habitual offender information was also filed. 51CRI22-004275. That case

was tried on July 7, 2023, on the unauthorized articles in jail count only and defendant
was convicted of that offense. He admitted the habitual offender information. He was

sentenced on August 17, 2023, to 25 years imprisonment, concurrent with the sentences
imposed in 51CRI21-004457. He appealed that conviction and sentence to the South
Dakota Supreme Court and that case is still pending.
The United Sates Supreme Court has held that "a prisoner in state custody cannot
use a § 1983 action to challenge 'the fact or duration of his confinement.'" Wilkinson
V. Dotson. 544 U.S. 74, 78, 125 S. Ct. 1242, 1245, 161 L. Ed. 2d 253 (2005){quoting
Preiser v. Rodriguez. 411 U.S. 475, 489, 93 S.Ct. 1827, 36L.Ed.2d439(1973)).

Further,"a state prisoner's claim for damages is not cognizable under 42 U.S.C. § 1983
if'a judgment in favor of the plaintiff would necessarily imply the invalidity of his
conviction or sentence,' unless the prisoner can demonstrate that the conviction or
sentence has previously been invalidated." Karsiens v. Piper. 845 F.3d 394,406 (8th
Cir. 2017)(auotins Edwards v. Balisok. 520 U.S. 641,643, 117 S.Ct. 1584, 1586, 137

L.Ed.2d 906(1997)). Plaintiffs claims that he was "wrongfully convicted" are seeking
to challenge his state court convictions and sentence and are not cognizable in a § 1983
action. He must seek appropriate state court habeas relief instead. Wilkinson v.
Dotson. 544 U.S. at 78, 125 S.Ct. at 1245.

Plaintiff has failed to state a claim under 42 U.S.C. § 1983 for violation of a
constitutionally protected right in connection with the claimed wrongful convictions.
Plaintiff claims his legal mail was opened outside his presence. The United States

Court of Appeals for the Eighth Circuit has set forth the standard to be applied to inmate
complaints alleging legal mail was opened.
In the prison context, we have observed that privileged prisoner mail, that is
mail to or from an inmate's attorney and identified as such, may not be
opened for inspections for contraband except in the presence ofthe
prisoner. But we have never held or suggested that an isolated, inadvertent

instance of opening incoming confidential legal mail will support a § 1983
damage action. Instead, we have found that an isolated incident, without

any evidence ofimproper motive or resulting interference with the inmate's
right to counsel or to access to the courts, does not give rise to a
constitutional violation.

Beaulieu v. Ludeman.690 F.Bd 1017, 1037(8th Cir. 2012)(quotations and citations
omitted).

In this case, plaintiff has alleged an isolated incidence of opening incoming mail.
He claims the mail was from the American Civil Liberties Union ("ACLU"). It is not
clear that such mail was in fact legal mail. Plaintiff has not alleged that he suffered any
actual injury as a result ofthe isolated instance of opening his legal mail outside his
presence. Plaintiff has not alleged that the opening of his legal mail interfered with his
then-pending state criminal case. Absent any claim of"improper motive or resulting
interference with the inmate's right to counsel or to access to the courts," an isolated
incident "does not give rise to a constitutional violation." Gardner v. Howard, 109 F.3d

427,431 (8th Cir. 1997), citing Morgan v. Montanve. 516 F.2d 1367, 1372(2nd Cir.

1975)(absent any claim that counsel's effectiveness in representing plaintiff was

impaired or that plaintiffs right of access to the courts was chilled, plaintiffs complaint
is properly dismissed).

Plaintiff has failed to state a claim under 42 U.S.C. § 1983 for violation of a
constitutionally protected right in connection with the claimed isolated incident of

opening his legal mail outside his presence.

Plaintiff has filed a motion to remand this case to the Seventh Circuit, Pennington
County. This case was not removed from state court so no remand is authorized.

However, plaintiffs request is in the nature of a motion to dismiss to allow him to pursue
his excessive force claim, along with any other state law claims, in state court. It will be
construed as a motion to dismiss his federal court claims.

Based upon the foregoing,
IT IS ORDERED:

1. Plaintiffs application, Doc. 2, to proceed without the prepayment ofthe filing
fee is granted.

2. Whenever the amount in plaintiffs trust account exceeds $10.00, the institution
having custody ofthe plaintiff is hereby directed to forward monthly payments that equal
20% ofthe funds credited the preceding month to the plaintiffs trust account to the U.S.

District Court Clerk's office pursuant to 28 U.S.C. § 1915(b)(2), until the $350.00 filing
fee is paid in full.
3. The Clerk of Court shall send a copy of this order to the appropriate official at
plaintiffs institution.
4. Plaintiffs motion. Doc. 5,to appoint counsel, is denied as moot.
5. Defendant's motion to dismiss and allow him to pursue his claim in state court.
Doc. 8, is granted.
6. This matter is dismissed without prejudice.

DATED this ^g^day of March, 2024.
BY THE COURT:

CHARLES B. KORNMANN

United States District Judge