Wheeler v. Sayler et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
LeRoy K. Wheeler, 	)
)
Plaintiff, 	) 	REPORT AND RECOMMENDATION
)
vs. 	)
)
Warden James Sayler, et al., 	) 	Case No. 1:22-cv-038
)
Defendant. 	)
Plaintiff LeRoy K. Wheeler’s (“Wheeler”) has filed an Amended Complaint. In addition to
reiterating the claims contained his original Complaint, he requests court-appointed counsel. The
Court has referred this matter to the undersigned for initial review pursuant to 28 U.S.C. § 1915A.
For the reasons that follow, the undersigned recommends that Wheeler’s request for court-appointed
counsel be denied and that this action be dismissed for failure to state claims for which relief may
be granted.
I. 	BACKGROUND
Wheeler is an inmate at the North Dakota State Penitentiary (“NDSP”). He initiated this
action pro se with the filing of a paid Complaint on February 8, 2022. The undersigned screened
his Complaint and, finding it wanting, issued an order on February 21, 2023, giving him an
opportunity to show cause why his Complaint should not be dismissed or to file an Amended
Complaint. (Doc. No. 6).
On March 10, 2023, Wheeler filed an Amended Complaint. According to the Amended
Complaint, he sent certified letters with return receipts requested to ABC News, Fox News, and
NBC News in the summer of 2021. He received a signed return receipt (but apparently no
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substantive response) from Fox News. 	He did not receive signed return receipts or substantive
responses from either ABC News or NBC News. He wrote to Tracy Harter, the United States Postal
Service’s postmaster in Bismarck, North Dakota, asking how certified mail is supposed to work but
received no response. Believing that he did receive return receipts or substantive responses to his
correspondence because of tampering and/or censorship of his mail by NDSP staff, he filed multiple
grievances. His grievances were denied with the explanation that the North Dakota Department of
Corrections and Rehabilitation had no control over return receipts and that there was no evidence
that his certified mail had been mishandled, tampered with, interfered with, or censored.
Dissatisfied with the responses to his grievances, Wheeler initiated the above-captioned
action. 	He is suing the following individuals in their official and individual capacities: James
Sayler, the NDSP’s former Warden; Tammy Homan, an individual at the NDSP who apparently
processes prisoner mail; Tracy Harter, Postmaster for the United States Postal Service in Bismarck,
North Dakota; Captain Flanagan; Tracy Fischer, a unit manager at the NDSP; Dave Krabbenhoft,
Director of the North Dakota Department of Corrections and Rehabilitation; and an unnamed NDSP
employee who Wheeler refers to as John/Jane Doe. He claims that they censored and/or restricted
the “free flow” of his certified mail in violation of his First Amendment rights and denied him due
process in violation of the Fourteenth Amendment rights. 	He requests injunctive relief,
reimbursement for his costs and expenses, and an award of punitive damages.
II. 	STANDARD GOVERNING INITIAL REVIEW
The Prison Litigation Reform Act of 1995 (“PLRA”) requires an initial court screening of
all civil actions brought by prisoners that relate to prison conditions or that seek redress from a
governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The screening is required even
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when the prisoner has paid the filing fee. Lewis v. Estes, Case No. 00–1304, 242 F.3d 375 (table);
2000 WL 1673382, at *1 (8th Cir. Nov. 8, 2000) (unpublished per curiam). The purpose of the
screening requirement is to weed out claims that clearly lack merit with the hope that this will help
to lessen the burdens imposed by the ever-rising numbers of prisoner suits, which too often are
frivolous and without merit. Jones v. Bock, 549 U.S. 199, 202-03 (2007); Woodford v. Ngo, 548
U.S. 81, 83-84 (2006). In conducting the screening, the court must dismiss a complaint or portion
thereof if its claims are legally frivolous or malicious, fail to state a claim on which relief may be
granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915A(b); 42 U.S.C. § 1997e (c)(1).
The court is obligated to construe a pro se complaint 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). This does not mean that the court must accept everything or
anything that is filed by pro se prisoners, however. In enacting the screening requirement, Congress
obviously expected it to be more than 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). 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 Bell Atlantic, 550 U.S. at 555). And,
even though the complaint is to be liberally construed, it must also contain enough to satisfy Bell
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Atlantic’s “plausibility standard.” E.g., Ventura-Vera v. Dewitt, 417 F. App’x 591, 592, 2011 WL
2184269, *1 (8th Cir. 2011) (unpublished per curiam) (citing Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2007) for the appropriate post-Bell Atlantic standard); see also Stone v. Harry, 364 F.3d 912,
914 (8th Cir. 2004) (pro se complaints must allege sufficient facts to state a claim). Complaints that
offer nothing more than labels and conclusions or a formulaic recitation of the elements are not
sufficient. Frivolous claims are those that are clearly baseless, fanciful, fantastic, or delusional. See
Denton v. Hernandez, 504 U.S. 25, 32-34 (1992). Even though the court is obligated to construe
pro se complaints liberally, the court is not required to ignore facts that are pled by a prisoner when
they undermine the prisoner’s claim. The court may accept as true all facts pled in the complaint
and conclude from them that there is no claim as a matter of law. E.g., Thompson v. Ill. Dep’t of
Prof’l Regulation, 300 F.3d 750, 753-54 (7th Cir. 2002).
III. 	DISCUSSION
A. 	Wheeler’s Request for Court-Appointed Counsel
As noted above, Wheeler’s Amended Complaint includes a request for court-appointed
counsel. (Doc. No. 10).
Indigent civil litigants do not have a constitutional or statutory right to appointed counsel let
alone the appointment of their choice of counsel. Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013).
The court “may request an attorney to represent any person unable to afford counsel” and has
considerable discretion when deciding whether to do so. 	Id. at 924-43 (quoting 28 U.S.C. §
1915(e)(1)). A number of factors are relevant when deciding whether to appoint counsel, including
"the factual complexity of the case, the ability of the indigent to investigate the facts, the existence
of conflicting testimony, the ability of the indigent to present his claim and the complexity of the
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legal issues." Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991). Appointment of counsel
should be given serious consideration if the plaintiff has not alleged a frivolous or malicious claim.
Id.
Having reviewed the record in conjunction with the factors identified by the Eighth Circuit
in Abdullah, the undersigned recommends that the court deny Wheeler’s request for court appointed
counsel. 	First, this matter is neither factually nor legally complex. 	Second, Wheeler has
demonstrated an ability to present his claims and is an experienced litigant. Third, there is nothing
in the record to suggest that Wheeler is otherwise lacking legal resources. The undersigned shall
move on to the initial screening of Wheeler’s claims against Harter.
B. 	Wheeler’s Claim against Harter
Because Harter is employed by an enterprise operated by the federal government, the United
States Postal Service (“USPS”), she can be considered a federal official as opposed to a state actor.
Consequently, the court construes Wheeler’s putative claim against Harter as a Bivens claim. See
Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971); see also
Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007) (“A Bivens action is a judicially-created
remedy designed to provide individuals with a cause of action against federal officials who have
violated their constitutional rights.”).
A Bivens claim for money damages may not be brought against the United States, federal
agencies, or federal agent in their official capacities. See FDIC v. Meyer, 510 U.S. 471, 484-86
(1994) (confirming that under Bivens, a "direct action against the Government [is] not available,"
and further declining to recognize a "Bivens-type cause of action directly against a federal agency");
Kentucky v. Graham, 473 U.S. 159, 166 (1985) ("[A]n official capacity suit is, in all respects other
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than name, to be treated as a suit against the entity"); Robinson v. Overseas Military Sales Corp.,
21 F.3d 502, 510 (2d Cir. 1994) (a Bivens action "must be brought against the federal officers
involved in their individual capacities. Under the doctrine of sovereign immunity, an action for
damages will not lie against the United States absent consent. Because an action for money damages
against a federal agency or federal officers in their official capacities is essentially a suit against the
United States, such suits are barred under the doctrine of sovereign immunity, unless such immunity
is waived.").1 As a suit against Harter in her official capacity is akin to a suit against the United
States, Wheeler’s claim for monetary damages against Harter in her official is barred under the
doctrine of sovereign immunity.
Regardless of the capacity in which Wheeler is endeavoring to sue Harter, his claim against
Harter is frivolous on its face. 	See Cotten v. Schotten, No. 95-4085, 1997 WL 299386 at * 1 (6th
Cir. June 4, 1997) (“[T]here is no constitutional right to receive a return receipt in the mail.”). The
basis for Wheeler’s claim against Harter is that she did not respond to his correspondence and that
he suffered physical injury as a result. Specifically, Wheeler alleges:
Tracey Harter, Bismarck Postmaster, tacitly authorizes and condones or acquiesence,
the total censorship mentioned above, by refusing to respond to Wheeler’s questions
about the certified mail process and 	who stamps the return receipt, the USPS
employee, & who is responsible to complete the return receipt (Green Card), even
though a response was requested on both the 7-08-21 & 7-26-21 correspondences,
and pre-paid return postage was provided. Harter was notified that a Postal Service,
provided by the USPS & federal law to a state prisoner, LeRoy K. Wheeler, was a
complete failure, that certified mail option was sold to Wheeler, on multiple
occasions, & the return receipts, both white & green, where not being returned as the
service required. Its just bad business to sell a service & refuse to provide it, mail
fraud. Harter is the supervisor & has failed to properly train & supervise Harters
subordinates, even after notice, because its still happening in 2023, & by failing to
1 The USPS is immune from suit for the loss, miscarriage, or negligent transmission of letters
or postal matter. See 28 U.S.C. § 2680(b) (postal matter exception to the Federal Tort Claims Act).
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respond to Wheeler’s demand to correct these issues shows deliberate indifference
to Wheeler’s rights and is tacitly authorizing the intentional acts that deprive W of
his rights to communicate through the mail, through a service that is supposed to
guarantee the mail gets to where it is supposed to go.
(Doc. No. 6) (errors in original).
The purported poor customer service of the USPS and a failure on Harter’s part to respond
to Wheeler’s letter is not tantamount to a violation of Wheeler’s First Amendment rights and does
not constitute the basis for a cognizable Bivens claim against Harter. Wheeler does not have a right
under the First Amendment to compel a response from Harter. 	As for Wheeler’s assertion that
Harter authorized or condoned the alleged censorship of his mail by NDSP staff, it is, frankly,
absurd. Harter has no authority and control over NDSP staff. Consequently, the alleged actions of
staff cannot be logically attributed to her. In any event, it is well-settled that theories of vicarious
liability cannot support a Bivens action. See e.g., Webb v. Hedrick, 409 F. App'x 33, 35 (8th Cir.
2010) (“Bivens liability cannot be established solely on a theory of respondeat superior.”).
The court is convinced that Wheeler has presented the best case he could have under the
circumstances against Harter, and that further amendment of the pleadings as they pertain to Harter
would serve no useful purpose. Accepting all of Wheeler’s allegations as true as they pertain to
Harter, the court can conclude that Wheeler has failed to state a claim against Harter for which relief
may be granted and that Wheeler’s claim against Harter is otherwise frivolous on its face.
Consequently, the court should dismiss Wheeler’s claim against Harter with prejudice. 	The
undersigned shall turn to Wheeler’s claims against Homan, Flanagan, Fisher, Sayler, and Doe
(collectively the "State Defendants").
C. 	Wheeler’s Claims Against the State Defendants
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The court construes Wheeler’s claims against the State Defendants as § 1983 claims.
Section 1983 provides a vehicle for redressing the violation of federal law by those acting under
color of state law. Nelson v. Campbell, 541 U.S. 637, 643 (2004). To prevail on a § 1983 claim, the
plaintiff must prove that a person acting under the color of state law deprived him of a right secured
by the Constitution or laws of the United States. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48
(1988).
1. 	Official Capacity Claims for Damages
As a preliminary matter, the court finds that Wheeler’s claim for damages against State
Defendants in their official capacities is barred. First, state officials sued in their official capacities
for money damages are not "person[s]" subject to suit under § 1983.” See Will v. Mich. Dep't of
State Police, 491 U.S. 58, 71 (1989). Second, official-capacity claims for damages against state
officials are barred by the Eleventh Amendment to the United States Constitution. Id.; Kentucky
v. Graham, 473 U.S. 159, 169 (1985) ("This [Eleventh Amendment] bar remains in effect when State
officials are sued for damages in their official capacity."). Consequently, Wheeler’s claim for
monetary damages against Defendants in their official capacities should be dismissed.
2. 	Individual Capacity Claims for Injunctive Relief
Wheeler’s claim for injunctive relief against Defendants in their individual capacities should
also be dismissed as it is well-settled that a plaintiff cannot, in the context of § 1983 action, maintain
a claim for injunctive relief against defendants in their individual capacities. See Hafer v. Melo, 502
U.S. 21, 30 (1991) (under Section 1983, plaintiffs may sue individual-capacity defendants only for
money damages and official-capacity defendants only for injunctive relief); Brown v. Montoya, 662
F.3d 1152, 1161 n. 5 (10th Cir. 2011) (same). The undersigned shall now move on to address the
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substance of Wheeler’s First Amendment claim.
3. 	Claim No. 1 - First Amendment
A prisoner retains First Amendment protections to send and receive mail, but that right may
be restricted for legitimate penological reasons. Thornburgh v. Abbott, 490 U.S. 401, 407 (1989);
Turner v. Safley, 482 U.S. 78, 89 (1987); Moore v. Schuetzle, 354 F. Supp. 2d 1065, 1078 (D.N.D.
2005), aff'd, 172 F. App'x 133 (8th Cir. 2006). With regard to non-legal incoming mail, a prison’s
regulations or practices affecting a prisoner’s receipt of non-legal mail must be reasonably related
to a legitimate penological interest. In order to state a claim for interference with incoming non-
legal mail, the inmate will have to show a pattern and practice of interference rather than showing
an isolated incident without the legitimate penological interest. See Davis v. Goord, 320 F.3d 346,
351 (2nd Cir. 2003) (finding isolated incidents of mail tampering insufficient to state a constitutional
claim).
a. 	Homan
Wheeler surmises that he did not receive return receipts for all of his certified letters because
Homan restricted, tampered with, or otherwise confiscated his certified letters in violation of his
First Amendment rights. Specifically, he alleges:
Tammy Homan, mail personnel is enforcing a de facto total plan on plaintiffs, LeRoy
K. Wheeler (Wheeler)’s, 1st Amendment right of free speech to communicate with
those outside prison that includes the news media through certified mail, a right
under 28 CFR § 540.22(a)(c), to ABC News on 7-26-21, and again on 8-9-21, to Fox
News on 7-19-21, (someone taped something over the Fox News address & when it
was returned whatever it was removed & peeled off part of the intended address on
the Green Card) most likely sent to a wrong address intentionally and I still
governmental interference. 	Then to NBC News on 8-11-21, the signed return
receipts were requested & never returned (except for the Fox News one), and no
responses were ever received, though requested & return postage paid for. (even if
officials communicated with the intended recipients by mail, phone or in person to
inhibit any response to Wheeler is still Governmental interference). Then by regular
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mail to Bismarck Postmaster, Tracey Harter, on 7-8-21, & also by Certified Mail on
7-26-21, & no responses were ever received. This censorship includes to Attorney’s
on 11-2-20 & 11-18-21, & even to President of the U.S., Biden on 5-17-21, an on
going practice for many years, without any penological purpose involved, & also to
maintain these policies &/or practices that produces this result. This suppression of
expression prevents Wheeler from doing any further investigation, (even personal
mail disappears if they don’t like the content), or collecting any more information in
any of these circumstances, in this whole complaint, & violates 1st & 14th
Amendment rights under the U.S. Constitution, and 18 U.S.C. 1341, 1346, 1702, &
1708, these laws apply to all Defendants actions. NDSP mail staff offer certified
mail when inmates complain their personal mail disappears, at a much higher price
than regular mail, for a service that Homan never intends to fulfill, Governmental
overreach, thus deprives Wheeler of his property without due process of law without
any state post deprivation remedy. 	Homan offers only conclusory statements &
blames USPS for the failure.
(Doc. No. 8) (errors in original). He claims to have suffered a physical injury as a result Homan’s
actions.
The undersigned concludes that Wheeler has failed to state a cognizable claim against
Homan. First, Wheeler’s assertion that he has suffered a physical injury gives his claim an air of
frivolity. Second, Wheeler’s assertion that he has been effectively banned from communicating with
the press is undermined by his acknowledgment that he received a return receipt from Fox News.
The Court is not required to ignore facts that are pled by Wheeler when they undermine his claim.
Rather, the court may accept as true all facts pled in the complaint and conclude from them Wheeler
has stated no claim against Homan as a matter of law. Third, it appears on the face of the complaint
that incidents about which Homan complains–three instances when he did not receive a return
receipt–appear isolated. As noted above, isolated incidents of mail tampering are insufficient to
state a constitutional claim. 	See Davis, 320 F.3d at 351; see also Sanderson v. Lopez, No.
4:17CV00174 JLH/PSH, 2017 WL 4020428, at *2 (E.D. Ark. Aug. 21, 2017) (“Neither an isolated
incidence of mail tampering nor short delays in receiving mail violate a prisoner's First Amendment
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right of free speech to send and receive mail.”); Gillard v. Burge, No. 9:03-CV-1537 TJM/RFT,
2007 WL 1074789, at *8 (N.D.N.Y. Apr. 5, 2007) (“In order to state a claim for interference with
incoming non-legal mail, the inmate will have to show a pattern and practice of interference, rather
than merely showing an isolated incident, without the legitimate penological interest.”).
Wheeler, in a attempt to demonstrate an existence of a pattern, alludes to three additional
pieces of mail he sent to attorneys and/or to President Biden between November 2020 and
November 2021. The undersigned simply notes that the pleadings do not indicate that the
aforementioned correspondence to attorneys and President Biden were sent via certified mail.
b. 	Flanagan, Fischer, Sayler, and Krabbenhoft
Wheeler’s claim against Flanagan, Fischer, Sayler, and Krabbenhoft is predicated upon their
adoption, ratification, and acquiescence to Homan’s violation of his First Amendment rights insofar
as they failed to adequately investigate his grievances, failed to respond to his grievances, or
otherwise denied his grievances.
There is no constitutionally created entitlement to grievance procedures or access to any such
procedures voluntarily established by a state. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.
1993) (no constitutional violation in failing to process all of the grievances submitted by the
prisoner); Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (per curium) (“When the claim
underlying the administrative grievance involves a constitutional right, the prisoner's right to petition
the government for redress is the right of access to the courts, which is not compromised by the
prison's refusal to entertain his grievance.”); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (opining
that the Constitution creates no entitlement to grievance procedures or access to any such procedure
voluntarily established by a state); see e.g., Dickens v. Taylor, 464 F. Supp.2d 341, 354 (D. Del.
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2006) (concluding that a prisoner "cannot maintain constitutional claims based upon an inadequate
grievances system, that grievances were denied, that he was not provided a hearing upon the filing
of a grievance, or that his grievances were not addressed."). It therefore follows that Wheeler cannot
maintain a claim against Flanagan, Fischer, Sayler, and Krabbenhoft for their denial of their
grievances or for their alleged failure to act. See Cotten, No. 95-4085, 1997 WL 299386 at * 1
(finding frivolous a prisoner’s claim predicated upon prison officials’, postmasters’, and a
prosecutor’s alleged failure to investigate after prisoner did not receive a return receipt card in the
mail); Lomholt v. Holder, 287 F.3d 683, 684 (8th Cir. 2002) (finding that a plaintiff failed to state
First Amendment claims relating to his grievances “because defendants’ denial of his grievances did
not state a substantive constitutional claim.”); see also Grinter v. Knight, 532 F.3d 567, 576 (6th Cir.
2008) (“The denial of administrative grievances or the failure to act by prison officials does not
subject supervisors to liability under § 1983.” (internal quotation marks omitted)); Alder v. Corr.
Med. Servs., 73 F. App'x 839, 841 (6th Cir.2003) (“The mere denial of a prisoner's grievance states
no claim of constitutional dimension.”); Lee v. Mich. Parole Bd., 104 F. App'x 490, 493 (6th Cir.
2004) (“Section 1983 liability may not be imposed simply because a defendant was denied an
administrative grievance or failed to act based upon information contained in a grievance.”);
Simpson v. Overton, 79 F. App'x 117, 120 (6th Cir.2003) (“[T]he denial of an appeal cannot in itself
constitute sufficient personal involvement to state a claim for a constitutional violation.”).
Moreover, Wheeler cannot maintain a claim against Krabbenhoft, Fischer, Flanagan, or
Sayler in their personal capacity as supervisors. See Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995)
(there is no respondeat superior liability under § 1983); see also Camberos v. Branstad, 73 F.3d 174,
176 (8th Cir. 1995) (“[A] general responsibility for supervising the operations of a prison is
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insufficient to establish the personal involvement required to support liability.”).
c. 	John/Jane Doe
Wheeler claims that John/Jane Doe denied him his First Amendment rights by either advising
Harter not to respond to his inquiries or, in the alternative, by altering his correspondence to Harter.
Specifically, he asserts:
There is an employee at NDSP, Jane or John Doe, involved in the Postmaster Tracey
Harter, delivery of the certified mail because, although the Green Card was signed
and returned it was not sent through the USPS Postal machinery to put marks on the
card when its processed and the tracking number was never listed in the tracking
information. [1] It must have been hand delivered, got signed, and returned without
any proof it was ever mailed by this Jane or John Doe, without any penological
purpose and denying due process, & he or she probably told Harter not to respond,
or altered the mail contents to the level Harter didn’t know to respond or what to
respond to, it still is mail interference & censorship if “Wheeler’s” communication
was not received by Harter, that ultimately deprived Wheeler of a direct
communication from Harter personally, violating 1st Amendment rights, USCA.
[1] The white receipt was never returned.
(Doc. No. 1) (footnote and errors in original).
Wheeler’s assertions regarding John/Jane Doe are inconsistent with his assertions regarding
Harter. It begs the question why is Wheeler asserting a claim against Harter if he believes that she
did not receive his letters because of John/Jane Doe or that John/Jane Doe altered his letters so as
to make them incomprehensible to her.
Regardless of this inconsistency, Wheeler’s assertions regarding John/Jane Doe are not
enough to raise a right of relief above the speculative level. 	Bell Atl. Corp. v. Twombly, 550 U.S.
544, 562 (2007). The notion that an anonymous NDSP staff member hand delivered Wheeler’s
certified letter to Fox News instead of posting it, collected the return receipt and brought it back to
the NDSP for Wheeler, and then either took steps to prevent Harter from receiving Wheeler’s
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correspondence or otherwise convinced Harter not to respond to Wheeler’s correspondence borders
on the fantastic. See e.g, Every v. Jindal, No. 09-CV-671, 2011 WL 2182047, at *3 (W.D. La. May
13, 2011), report and recommendation adopted, No. 09-CV-671, 2011 WL 2182721 (W.D. La. June
3, 2011) (finding a prisoner’s allegations of forged certified mail return cards to not only be
conclusory, but borderline on the delusional).
Finally, if Wheeler cannot identify John/Jane Doe, his claims against him/her are subject
to dismissal pursuant to Fed. R. Civ. P. 4(m). See Fed. R. Civ. P. 4(m) (if service of summons and
complaint is not made within 120 days of filing complaint, the court, upon motion or its own
initiative and after notice to plaintiff, shall dismiss action without prejudice as to that defendant, or
direct that service be effected within specified time); see e.g., Lewis v. Pulaski Cnty. Sheriff's Off.,
No. 4:18-CV-00143-KGB, 2022 WL 990351, at *1 n.2 (E.D. Ark. Mar. 31, 2022) (dismissing
plaintiffs’ claims against unidentified John Doe defendants pursuant to Fed. R. Civ. P. 4(m));
Basham v. Harrison, No. 4:19-CV-4099, 2019 WL 5929275, at *3 (W.D. Ark. Nov. 12, 2019)
(giving plaintiff 30 days to identify a John Doe Defendant before dismissing the claim against him
without prejudice).
3. 	Claim No. 2 - Due Process
Wheeler’s second claim is that Homan denied him due process under the Fourteenth
Amendment by violating the NDSP’s mail policies and procedures. His stated basis for this claim
is as follows:
Wheeler was denied the due process of law without an penological purpose involved.
Wheeler has a right to be free from mail censorship and the free flow of mail. 1st
and 14th Amend. USC. If there is a good reason to reject the content of the mail,
NDSP has a rejection of mail policy & Tammy Homan refused to use this policy she
is denying Wheeler’s due process rights to respond to any grounds to reject his mail
being sent out, instead has altered the contents of Wheeler’s mail that has resulted
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in Wheller not getting any responses from the recipients of the mail. Certified return
receipt is supposed to guarantee Wheeler’s mail was received by the intended
recipient & has not been received because even the media would want to learn of
Governmental corruption, as shown above.
(Doc. No. 1) (errors in original).
An internal NDSP policy does not create a constitutional right, nor does a prison official's
failure to follow such a policy rise to the level of a § 1983 claim. See Kennedy v. Blankenship, 100
F.3d 640, 643 (8th Cir.1996) (no federal constitutional liberty interest in having state officers follow
state law); see also Smith v. Rucker, 259 F.3d 933 (8th Cir. 2001) (per curiam) (inmate's allegation
that prison officials violated his due process rights by failing to follow administrative regulations
did not state a claim; the due process clause does not federalize state-law procedural requirements);
Hughes v. Lee County Dist. Court, 9 F.3d 1366, 1367 (8th Cir. 1993) (assertion that state violated
its own procedural guidelines does not state a federal claim); Valiant-Bey v. Morris, 829 F.2d 1441,
1444 n. 5 (8th Cir. 1987) (§ 1983 claim cannot be premised on violation of state regulation).
Consequently, Homan’s alleged failure to follow NDSP policy does not constitute the basis for
cognizable constitutional claim.
4. 	Claim No. 3 - Due Process
Wheeler’s third claim is that he was deprived of property–the money he spent on
postage–without due process of law. He alleges:
On all failed certified letter’s Wheeler sent out (about 15), in claim #1, comes with
a price of $6.95 each letter. Thus a deprivation of Wheeler’s property interests
without due process of law and no state law post deprivation remedy available, & no
penological purpose involved. Tammy Homan takes credit for the deprivation &
Wheeler did request a refund of all monies taken for his failed service of selling
certified mail to Wheeler and was denied by all defendants & constitutes mail fraud
under 18 U.S.C. 1341, 1346, 1702, & 1708 plus the 14th Amendment. 18 USC 1346
authorizes prosecution of Government officials, a right to plaintiffs. Wheeler also
enclosed a postage stamp in each envelope to pay for a postage paid response form
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the intended mail recipient to add to Wheeler’s costs.
(Doc. No. 1) (errors in original).
Wheeler’s claim appears to be frivolous on its face. Wheeler asserts that he was deprived
of property without due process. However, throughout his complaint he discusses the process that
he did receive as he references various responses to his grievances. For example, on page 13 of his
amended complaint, he quotes Flanagan’s responses to his grievances. 	On pages 14 and 15 he
quotes Krabbenhoft’s responses to his grievances.2
In regard to Wheeler’s assertions regarding mail fraud, the undersigned simply notes that the
criminal statutes to which he cites create no private right of action. Wisdom v. First Midwest Bank,
of Poplar Bluff, 167 F.3d 402, 408 (8th Cir. 1999); see also Bondarenko v. Polounin, No.
4:21-CV-1442-JAR, 2022 WL 485267, at *2 (E.D. Mo. Feb. 17, 2022) (dismissing plaintiff’s
complaint on initial review as the mail tampering and mail fraud statutes on which his claims were
based conferred no private right action); Pierre v. United States Postal Serv., No. 18-CV-7474
(MKB), 2019 WL 653154, at *3 (E.D.N.Y. Feb. 15, 2019) (“Because there is no private right of
action under the statutes for mail fraud, 18 U.S.C. § 1341, and theft and obstruction of the mails, 18
U.S.C. § 1701 et seq., Plaintiff, as a private citizen, cannot enforce these federal criminal laws.”).
IV. 	CONCLUSION AND RECOMMENDATION
The undersigned RECOMMENDS that the court deny Wheeler’s request for court-
appointed counsel (Doc. No. 10). 	The undersigned further RECOMMENDS that the Court
2 According to Wheeler, Krabbenhoft advised him when denying his various grievances that
staff had been able to provide documentation and tracking information with respect to the certified
mail he had sent to various news outlets. (Doc. No. 8 at p. 14-15). Wheeler’s response to these
statements is that 	his mail could still have been altered by staff and that there is no physical
evidence that the mail ever left the NDSP. (Id.).
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DISMISS above-captioned action in its entirety for the reasons articulated above.
NOTICE OF RIGHT TO FILE OBJECTIONS
Pursuant to D.N.D. Civil L.R. 72.1(D)(3), Wheeler shall have until June 23, 2023, to file
objections to this Report and Recommendation and otherwise advise the Court whether he wants to
proceed with this matter should the Court construe it a “civil action.” A failure on his part to timely
file an appropriate objection may result in recommended action without further notice or opportunity
to respond.
Dated this 5th day of June, 2023.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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