Rosado v. Wasko et al

Filing 7

1915A SCREENING OPINION AND ORDER Signed by Chief Judge Roberto A. Lange on 5/10/2024. MAILED to Alexander Rosado. (SAC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

ALEXANDER ROCK ROSADO,

5:23-CV-05069-RAL

Plaintiff,
1915A SCREENING

vs.

OPINION AND ORDER

SECRETARY KELLIE WASKO,in her

individual and official capacity; WARDEN
BRENT FLUKE,in his individual and official

capacity'; and CORRECTIONAL OFFICER
MATTFEW GEPPART,in his individual and
official capacity.
Defendants.

Plaintiff Alexander Roek Rosado, a former inmate at the Mike Durfee State Prison, filed a

pro se civil rights lawsuit under 42 U.S.C. § 1983. Doe. 1. Rosado filed a motion to leave to
proceed in forma pauperis, Doc. 2, which this Court granted, Doe. 5. Rosado paid his initial filing
fee. This Court now screens Rosado's complaint under 28 U.S.C. §§ 1915 and 1915A.
1.

1915A Screening

A.

Factual Background

Rosado claims that defendants violated his First and Eighth Amendment rights. Doc. 1 at

4-5. Rosado was incarcerated at the Rapid City Community Work Center(RCCWC)and was on

^ Rosado sues Fluke in his individual and official capacity. Fluke is no longer warden ofthe Mike
Durfee State Prison. Under Federal Rule of Civil Procedure 25(d), "[a]n action does not abate

when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to
hold office while the action is pending. The officer's successor is automatically substituted as a
party." Because Rosado's claims against Fluke are dismissed, substitution of Fluke's successor
for Rosado's official capacity claims is futile.

work release. Id. at 4. On April 5,2022, around 8:30 a.m., Correctional Officer Matthew Geppart
arrived at Perkins restaurant in Rapid City, South Dakota, to give Rosado a ride back to the
RCCWC. Id When Geppart was walking Rosado out the door ofPerkins,Rosado spit on Geppart.
Id. Rosado claims that Geppart became angry and allegedly grabbed Rosado "while [he] was
handcuffed and body-slammed [him]... on the ground and knocked [him] out as into a coma[.]"
Id. Rosado was in a coma for eight days at the Rapid City Hospital. Id Rosado's medical records

state that he was reported to have "passed out and fallen[,]" which Rosado claims was not true.
Id; Doc. I-l at 8. Rosado's medical records show that he was diagnosed with a brain bleed and

that he tested positive for alcohol. Doc. I-l at 4-6. Rosado claims that because of Geppart's
actions, he had serious injuries and continues to experience headaches and trouble thinking. Doc.
1 at 4.

Between August and September of 2023, Secretary of Corrections Kellie Wasko and
Warden Brent Fluke would not allow Rosado to receive legal assistance from another inmate. Id

at 5. Wasko and Fluke would not provide Rosado a classroom or library time to meet with Michael
Merrival, Jr., an inmate writ writer. Id Rosado and Merrival are in different housing units. Id
Rosado claims that he was denied access to the courts because he could not meet with Merrival

and could not get his "habeas corpus filed in state and federal court [and] ... cannot get [his]
Sentence Modification filed or any legal pleadings file [sic]." Id
Rosado sues the defendants in their individual and official capacities. Id at 2. Rosado

requests to have the defendants pay for his medieal and mental health treatment and medications
as well as $1,000,000 in "compensation damages to pay for the medical examines and mental
health treatments." Id at 7. He also requests the remaining time of his prison sentence or parole
be discharged. Id

B.

Legal Standard

A court when screening under § 1915A must assume as true all facts well pleaded in the

complaint. Est. of Rosenberg v. Crandell. 56 F.3d 35, 36 (8th Cir. 1995). Pro se and eivil rights
complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94(2007)(per curiam);
Bediako v. Stein Mart. Inc., 354 F.3d 835, 839(8th Cir. 2004)(citation omitted). Even with this

construction,"apro se complaint must contain specific facts supporting its conclusions." Martin
V. Sargent. 780 F.2d 1334, 1337 (8th Cir. 1985) (citation omitted); see also Ellis v. City of

Minneapolis- 518 F. App'x 502, 504 (8th Cir. 2013)(per euriam)(citation omitted). Civil rights
complaints cannot be merely conelusory. Davis v. Hall. 992 F.2d 151, 152(8th Cir. 1993)(per
curiam)(citation omitted); Parker v. Porter. 221 F. App'x 481, 482 (8th Cir. 2007)(per curiam)
(citations omitted).

A complaint"does not need detailed factual allegations ...[but] requires more than labels
and conclusions, and a formulaic recitation ofthe elements ofa cause of action will not do[.]" Bell
Atl. Corp. V. Twomblv. 550 U.S. 544, 555(2007)(internal citation omitted). If a complaint does
not contain these bare essentials, dismissal is appropriate. S^ Beavers v. Lockhart. 755 F.2d 657,

663-64 (8th Cir. 1985) (citation omitted). Twomblv requires that a complaint's "[f]actual

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[.]" 550 U.S. at 555 (internal citation and footnote

omitted); see also Abdullah v. Minnesota. 261 F. App'x 926, 927 (8th Cir. 2008)(noting that a
complaint "must contain either direct or inferential allegations respecting all material elements
necessary to sustain recovery under some viable legal theory" (citing Twomblv, 550 U.S. at

553-63)). Further,"a well-pleaded complaint may proceed even if it strikes a savvy judge that
actual proof of the facts alleged is improbable, and that a recovery is very remote and unlikely."

Braden v. Wal-Mart Stores. Inc.. 588 F.3d 585, 594 (8th Cir. 2009)(internal quotation removed)

(quoting Twombly. 550 U.S. at 556). Under 28 U.S.C. § 1915A, the court must screen prisoner
complaints and dismiss them if they "(1)[are] frivolous, malicious, or fail[] to state a claim upon
which relief may be granted; or(2) seek[] monetary relieffrom a defendant who is immune from
such relief." 28 U.S.C. § 1915A(b).
C.

Rosado's Causes of Action

1.

Official Capacity Claims for Money Damages

Rosado brings claims against all defendants in their official capacities for money damages.
Doc. 1 at 2, 7. All defendants are employees of the State of South Dakota. See generally id As

the Supreme Court of the United States has stated, "a suit against a state official in his or her
official capacity is not a suit against the official but rather is a suit against the official's office."
Will V. Mich. Den't of State Police. 491 U.S. 58,71 (1989)(citing Brandon v. Holt. 469 U.S. 464,

471 (1985)). Thus,it is a suit against the state itself. Id. While "[§] 1983 provides a federal forum
to remedy many deprivations of civil liberties,... it does not provide a federal forum for litigants
who seek a remedy against a State for alleged deprivations of civil liberties." Id, at 66.
The Eleventh Amendment generally acts as a bar to suits against a state for money damages

unless the state has waived its sovereign immunity. Id, Here, Rosado seeks both money damages

and injunctive relief. Doc. 1 at 7. The State of South Dakota has not waived its sovereign
immunity. Thus, Rosado's claims against all defendants in their official capacities for money
damages are dismissed with prejudice under 28 U.S.C §§ 1915(e)(2)(B)(iii) and 1915A(b)(2).
2.

Claims for Injunctive Relief

The only injunctive relief that Rosado requests is "that all remaining time left on

imprisonment or parole be discharged." Doc. 1 at 7. A district court cannot grant release from

confinement in a § 1983 action; a federal habeas petition is the proper method of seeking release
from confinement. Preiser v. Rodriguez. 411 U.S. 475, 484-85 (1973); Heck v. Humphrey. 512

U.S. 477, 481 (1994). Because this Court is unable to grant the only injunetive relief Rosado
requests, Rosado's elaims for injunetive relief against all defendants are dismissed without
prejudiee under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
3.

Individual Capacity Claims
a.

Eighth Amendment Excessive Force

Rosado claims that Geppart violated his Eighth Amendment right to be free from cruel and

unusual punishment. Doc. 1 at 4. The Eighth Amendment protects prisoners from "unnecessary
and wanton inflietion of pain." Hudson v. McMillian. 503 U.S. 1, 5 (1992). In determining
whether excessive foree was used, the "eore judicial inquiry ...[is] whether foree was applied in

a good-faith effort to maintain or restore discipline, or malieiously and sadistieally to cause harm."
wnkinsv Gnddv. 559 U.S. 34, 37(2010)(quoting Hudson. 503 U.S. at 7). To determine ifforce

was reasonable and in good faith, eourts may eonsider the need for applying force,the relationship
between that need and the amount of foree utilized, the threat the responsible offieials reasonably

perceived, any efforts used to diminish the severity of a forceful response, and the extent of the
injury inflieted. Walker v. Bowersox. 526 F.3d 1186,1188 (8th Cir. 2008)(per euriam).
Here, Rosado elaims that Geppart slammed him to the ground and knoeked him out after

Rosado spit on him. Doe. 1 at 4. Rosado was taken to the hospital and suffered a brain bleed. Id,
Thus, Rosado alleges suffieient faets for his Eighth Amendment excessive foree claim against

Geppart in his individual eapaeity for money damages to survive § 1915A screening.

b.

First Amendment Access to the Courts

Rosado claims that Fluke and Wasko violated his First Amendment right to access the

courts because he was denied the opportunity to meet with an inmate writ vwiter. Doc. 1 at 5.

"The Constitution guarantees prisoners a right to access the eourts." White v. Kautzky, 494 F.3d

677, 679 (8th Cir. 2007). The United States Supreme Court has held that "the fundamental
constitutional right of access to the eourts requires prison authorities to assist inmates in the

preparation and filing of meaningful legal papers by providing prisoners with adequate law
libraries or adequate assistanee from persons trained in the law." Bounds v. Smith. 430 U.S. 817,

828 (1977). The right to access the eourt "entitles inmates to receive legal assistance from fellow
inmates unless prison offieials provide reasonable alternative assistanee." Gassier v. Ravk 862
F.2d 706, 707 (8th Cir. 1988)(eiting Johnson v. Averv. 393 U.S. 483, 490 (1969)). "Prison

officials are required to permit inmates to seek the assistance ofother inmates only when there are
no other reasonable alternatives to provide the inmates with meaningful aecess to the courts."
Little V. Norris. 787 F.2d 1241,1244(8th Cir. 1986)(citing Johnson. 393 U.S. at 488).
To succeed on a claim for denial of aecess to the eourts, a plaintiff must show that he

suffered actual injury as a result of the defendants' aetions. Lewis v. Casev. 518 U.S. 343, 349

(1996). In order to satisfy the aetual injury requirement, a plaintiff must "demonstrate that a
nonfrivolous legal claim had been frustrated or was being impeded." Johnson v. Missouri. 142
F.3d 1087,1089(8th Cir. 1998)(quoting Lewis. 518 U.S. at 353 (footnotes omitted)). The actual

injury requirement is a high threshold. Hartsfield v. Nichols.511 F.3d 826,831—32(8th Cir. 2008).
"Actual injury" means "aetual prejudiee with respeet to eontemplated or existing litigation, such
as the inability to meet a filing deadline or to present a elaim." Lewis. 518 U.S. at 348. "The right
of access to the courts is satisfied if the prisoner has 'the eapability of bringing eontemplated

challenges to sentences or conditions of confinement before the courts.'" Zink v. Lombardi, 783
F.3d 1089, 1108 (8th Cir. 2015)(quoting Lewis, 518 U.S. at 356).
Here, Rosado claims that between August and September 2023, Fluke and Wasko would

not let him receive legal assistance from Merrival, an inmate writ writer, for Rosado's habeas

petition and this § 1983 case. Doc. 1 at 5. Rosado claims that Wasko and Fluke would not provide
him time to meet with Merrival to receive legal assistance. Id Rosado claims that because he
cannot meet with Merrival, he "cannot get [his] habeas corpus filed in State and federal court.

[He] cannot get [his] Sentence Modification filed or any legal pleadings file [sic]." Id Although
Rosado claims that he was not allowed to meet with Merrival to prepare his habeas petition and

§ 1983 complaint, Rosado does not allege that he was denied reasonable alternatives, such as
access to a law library or other legal resources, to prepare meaningful legal filings. See Doc. 1.
And an inmate does not have a right to meet with other inmates, nor can a non-attomey inmate

represent as if an attorney another inmate. S^ Kinsev v. Se. Corr. Ctr., 2022 WL 4299810, at *3

(Sept. 19, 2022)(citing Moodv v. Corv. 2010 WL 147268, at *2(D. Kan. Jan. 11, 2010)). Thus,
Rosado's First Amendment access to the courts claims against Wasko and Fluke are dismissed

without prejudice for failure to state a claim upon which relief may be granted under 28 U.S.C.
§§ 1915(e)(2)(B)(ii)and 1915A(b)(l).
II.

Conclusion

Accordingly, it is

ORDERED that Rosado's claims against all defendants in their official capacities for

money damages are dismissed with prejudice under 28 U.S.C §§ 1915(e)(2)(B)(iii) and
1915A(b)(2). It is further

ORDERED that Rosado's claims for injunctive relief against all defendants are dismissed

without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l). It is further
ORDERED that Rosado's Eighth Amendment claim against Geppart in his individual
capacity for money damages survives § 1915A sereening. It is further
ORDERED that Rosado's First Amendment access to the eourts elaims against Wasko and

Fluke are dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l). It
is further

ORDERED that the Clerk shall send a blank summons form and United States Marshals

Service Form(Form USM-285)to Rosado so that he may eomplete the form to cause the complaint
to be served upon defendant Geppart. It is further
ORDERED that Rosado shall complete and send the Clerk of Court a summons and USM-

285 form for Geppart. Upon receipt of the completed summons and USM-285 forms, the Clerk
of Court will issue the summons. Ifthe completed summons and USM-285 form are not submitted
as directed, the complaint may be dismissed. It is further
ORDERED that the United States Marshals Service shall serve the completed summons,

together with a copy ofthe complaint. Doc. I, and this order upon defendant Geppart. It is further
ORDERED that defendants will serve and file an answer or responsive pleading to the

amended complaints and supplement on or before 21 days following the date ofservice or 60 days
if the defendant falls under Fed. R. Civ. P. 12(a)(2) or (3). It is finally

ORDERED that Rosado will keep the court informed of his current address at all times.

All parties are bound by the Federal Rules of Civil Procedure and by this Court's Civil Local Rules
while this case is pending.

DATED May

2024.
BY THE COURT:

ROBERTO A. LANGE
CHIEF JUDGE

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