Walck v. Bertsch et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Mitchell Lee Walck, 	) 	ORDER VACATING DISMISSAL AND
) 	REPORT AND RECOMMENDATION
) 	RE: § 1915A SCREENING
Plaintiff, 	)
)
vs. 	)
)
Leann K. Bertsch, et al., 	)
) 	Case No.: 1:16-cv-343
Defendants. 	)
_____________________________________________________________________________
On February 20, 2020, this action was dismissed with prejudice. (Doc. No. 13). As the
plaintiff did not consent to the jurisdiction of the magistrate judge, this order of dismissal is
hereby VACATED. The undersigned makes the below recommendations.
I. 	BACKGROUND.
Before the Court is Walck’s Complaint (Doc. No. 5). Judge Hovland has referred this
matter to the Magistrate Judge for preliminary consideration. The Court now conducts an initial
screening pursuant to 28 U.S.C. § 1915A.
II. 	STANDARDS GOVERNING INITIAL REVIEW.
Congress enacted the Prison Litigation Reform Act of 1995 (“PLRA”) to address the
burden imposed by prisoner suits that are too often frivolous and without merit. Jones v. Bock,
549 U.S. 199, 203-04 (2007); Woodford v. Ngo, 548 U.S. 81, 84 (2006). 	One of the reforms
enacted as part of the PLRA for cases in which prisoners are seeking to sue a governmental
entity, officer, or employee requires courts to conduct an early screening to weed out claims that
clearly lack merit. 	28 U.S.C. § 1915A. 	In conducting the screening, the court is required to
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identify any cognizable claims and to dismiss the Complaint, or any part of it, that is frivolous,
malicious, fails to state a claim, or seeks monetary relief from an immune defendant. Id.
In screening a pro se prisoner Complaint, the court is obligated to construe it liberally and
hold it to a less stringent standard than what normally would be required of attorneys. 	Id.; see
also Federal Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008); 	Solomon v. Petray, 795
F.3d 777, 787 (8th Cir. 2015) (“When we say that a pro se complaint should be given liberal
construction, we mean that if the essence of an allegation is discernible . . . then the district court
should construe the complaint in a way that permits the layperson's claim to be considered within
the proper legal framework.”) (internal quotation marks omitted). 	This does not mean that the
court must accept everything or anything that is filed by a prisoner proceeding pro se, however.
In enacting the screening requirement, Congress obviously expected it to be more than an a
ritualistic exercise and that courts would only allow to go forward those claims that are
cognizable, that seek relief from a non-immune party, and that are not obviously frivolous or
malicious.
To meet the minimal pleading requirements of Rule 8(a)(2) for stating a cognizable
claim, something more is required than simply expressing a desire for relief and declaring an
entitlement to it. 	See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007)
(“Twombly”). The complaint must state enough to “‘give the defendant fair notice of what the . .
. claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Twombly, 550 U.S. at 555). 	Also, it must state enough to satisfy the “plausibility
standard” for stating a cognizable claim as established in Twombly and further amplified by the
Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 678-84 (2009) (“Iqbal”). And, even though a
pro 	se 	prisoner 	Complaint 	is 	entitled 	to 	a 	liberal 	construction, 	these 	minimal 	pleading
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requirements must still be satisfied. 	E.g., Story v. Foote, 782 F.3d 968, 969 (“To state a claim, .
. . [the pro se prisoner’s] complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”) (internal quotation marks omitted and citing
Twombly and Iqbal). 	Complaints that offer nothing more than labels and conclusions or a
formulaic recitation of the elements are not sufficient. 	Twombly, 550 U.S. at 555; Iqbal, 556
U.S. at 680-81. 	Frivolous claims are those that are clearly baseless, fanciful, fantastic, or
delusional. See Denton v. Hernandez, 504 U.S. 25, 32-34 (1992).
To state a claim under 42 U.S.C. § 1983, a plaintiff must normally allege a violation of a
right secured by the Constitution or the laws of the United States and that the alleged deprivation
was committed by a person acting under color of state law. 	West v. Atkins, 487 U.S. 42, 48
(1988); Walker v. Reed, 104 F.3d 156, 157 (8th Cir. 1997). 	Even under liberal pleading
standards, a pro se litigant, at the very least, must invoke rights under the Constitution or federal
law in order to plead a § 1983 claim. Walker v. Reed, 104 F.3d at 157-58. Also, the pleading
must allege a sufficient causal link between the alleged violation and the basis upon which the
particular defendant is to be held responsible, keeping in mind that persons sued in their
individual capacities must be personally involved or directly responsible since § 1983 does not
impose respondeat superior liability. 	Iqbal, 556 U.S. at 676-77; Gordon v. Hansen, 168 F.3d
1109, 1113 (8th Cir. 1999).
III. 	ANALYSIS.
Walck brings his claims under 42 U.S.C. § 1983, regarding injuries he allegedly suffered
during his time in the North Dakota state prison. He brings the suit against seven separate
defendants and groups of defendants: Leann K. Bertsch, Director of North Dakota Department of
Corrections; Warden Schmalenberger, also of the North Dakota Department of Corrections;
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Elizabeth Sundberg, a doctor at the North Dakota Department of Corrections Infirmary; John J.
Hagan, another doctor there; Jessica Wilkins, a nurse at the same facility; Dave Krabbenhoft,
Director of the North Dakota Department of Corrections; the Department of Corrections itself,
and finally, all administrators employed there. (Doc. No. 5).
All defendants are employees of the state of North Dakota through its Department of
Corrections. Furthermore, Walck states explicitly that he is suing each defendant in his or her
official capacity, and not in his or her individual capacity. (Id. at ¶ C through ¶ I). Under “Prayer
for Relief,” Walck seeks “compensation for his damages” in the amount of $1.2 million. He does
not appear to seek any injunctive or other prospective relief.
Walck’s claims are defective on their face. A suit for damages against a state official in
his official capacity is a suit against the State, and the State is not a person under § 1983.
Calzone v. Hawley, 866 F.3d 866, 872 (8th Cir. 2017), citing Will v. Mich. Dep't of State Police,
491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Such actions do not state a claim under
§ 1983 and are prohibited by the Eleventh Amendment, absent a waiver of sovereign immunity.
Glasgow v. Nebraska, 819 F.3d 436, 441 (8th Cir. 2016).
No such waiver is present here. Walck’s complaint against these defendants fails to state
a claim under § 1983. As such, I recommend that his complaint be dismissed, with prejudice,
pursuant to § 1915A.
NOTICE OF RIGHT TO FILE OBJECTIONS
Plaintiff 	shall 	have 	until 	April 	17, 	2020, 	to 	file 	objections 	to 	this 	Report 	and
Recommendation. See D.N.D. Civil L.R. 72.1(D)(3). Failure to file appropriate objections may
result in the recommended action being taken.
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Dated this 26th day of March, 2020.
/s/ Clare R. Hochhalter
Clare R. Hochhalter
United States Magistrate Judge
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