Borges v. U.S. Marshal et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
22 2822
MARINO MANUEL BORGES, 1:22-CV-01015-CBK .
Plaintiff,
vs.
i
MEMORANDUM OPINION
AND ORDER
U.S. MARSHAL,ROBERTS COUNTY
JAIL,
Defendants.
Plaintiff is a federal pretrial detainee at the Codington County Jail in Watertown,
South Dakota. He is facing charges in the United States District Court for the District of
North Dakota, 3:22-cr-00031-PDW. In the North Dakota federal criminal case, Chief
Judge Peter D. Welte ordered Borges to undergo a competency evaluation. Following the
evaluation, the parties stipulated that Borges was incompetent to assist in his defense and
he was committed to the custody ofthe Attorney General on August 16, 2022, for
hospitalization to restore his competency. It appears that he was transferred by the U.S.
Marshals Service shortly thereafter to the Roberts County Jail in Sisseton, South Dakota,
to await designation and transfer to the Bureau ofPrisons.
Borges filed the instant complaint pursuant to 42 U.S.C. § 1983. He has filed a
motion for leave to proceed informa pauperis without the prepayment ofthe 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).
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A prisoner must pay, as an initial partial filing fee, 20% ofthe greater ofthe
average monthly deposits to the prisoner's aeeount or the average monthly balance ofthe
prisoner's account for the last six months. 28 U.S.C. § 1915(b)(1)(A) and (B). The
Court finds that plaintiff is required to make an initial partial filing fee of$14.00.
The Prison Litigation Reform Act requires the Court to screen prisoner complaints
and dismiss any complaint that is "(1) firivolous, malicious, or fails to state a claim upon
which relief may he granted or(2)seeks monetary relieffrom a defendant who is
immune firom 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.
Construing plaintiffs complaint liberally, plaintiffs complaint claims defendant
U.S. Marshal violated 18 U.S.C.§ 3161(h)(1)(F) which excludes from the computation
under the Speedy Trial Act delay attributable to transportation ofa defendant to and fi*om
places of hospitalization. He contends that the U.S. Marshal violated his rights when he
was transported to the Roberts County Jail instead of being housed in the Cass County,
North Dakota,jail. He finther contends that the U.S. Marshal sent him to prison prior to
a plea of guilty and sentencing "with the excuse of mental evaluation."
Plaintifffurther contends that defendants violated his right to communicate with
his lawyers and the court. Specifically, he alleges that, since he arrived in the Roberts
County Jail, he has been unable to communicate with the federal courthouse in Fargo,
North Dakota, with the federal public defender office in Sioux Falls, South Dakota, and
the United States Marshal in Washington, D.C., and Sioux Falls. He states he has written
numerous letters that he surmises have not been mailed because he has received no
response. He seeks investigation into corruption ofthe U.S. Marshal for delay in the
JPATS plane transportation system, investigation into the Roberts County Jail for
violating inmate rights, and monetary relief. Subsequently to filing the complaint, he sent
a letter wherein he claims that Roberts County jail has kidnapped him with the
authorization ofthe U.S. Marshal and that Roberts County Jail has interfered with his
2
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communication with the federal court in Fargo, North Dakota. He seeks $50 million
damages from the U.S. Marshal and $5 million damages from Roberts County Jail.
"To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution or laws ofthe 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 has not
alleged any federal constitutional right was implicated by the U.S. Marshal's placement
of plaintiff at the Roberts County Jail pending transportation to the B.O.P. for court-
ordered hospitalization. Plaintiff contends that the delay in transporting him violates the
Speedy Trial Act, 18 U.S.C. §3161. There is no right to a civil remedy for alleged
violations ofthe Speedy Trial Act. Any violation is redressable only in the context ofthe
federal criminal proceedings pending against plaintiffin the District of North Dakota.
Plaintiff has failed to state a claim upon which relief can be granted as to the delay in
transporting him to the B.O.P. for hospitalization to restore competency.
Plaintiffs claims regarding his inability to communicate with the federal eourt in
North Dakota, the public defender, or the U.S. Marshals Service arise, if at all, under the
First Amendment right to access the eourts. "To suceeed in an aecess-to-courts claim, a
plaintiff must 'demonstrate that a nonfrivolous legal elaim had been frustrated or was
being impeded,' Johnson v. Missouri. 142 F.3d 1087, 1089(8th Cir.1998)(auotins Lewis
V. Casev. 518 U.S. 343, 353, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)), and that he has
suffered an actual injury. Klinger v. Department of Corrections. 107 F.3d 609,617(8th
Cir.1997)." Moore v. Plaster. 266 F.3d 928, 933(8th Cir. 2001).
I take judicial notice of the plaintiffs eriminal file. United States v. Marino
Manuel Borges. District ofNorth Dakota, 3:22-cr-00031-PDW, available in PACER and
CMECF. Sinee plaintiffs placement at the Roberts County Jail in August,2022, plaintiff
has written four letters addressed to the federal court in North Dakota which were filed in
his eriminal ease and therefore made available to the Court. In his letters, he seeks
redress for his eontinued placement at the Roberts County Jail. Plaintiff is represented in
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his District ofNorth Dakota criminal case by a federal public defender who would have
reeeived copies of his correspondence through CMECF.
Plaintiff has failed to state a claim for violation of his First Amendment right to
access the eourts. His claim that he has been unable to aecess the federal court in the
District of North Dakota to seek redress in his criminal case for his continued placement
at the Roberts County Jail is contrary to the reeord in that case.
Based upon the foregoing,
IT IS ORDERED:
1. Plaintiffs applieation, Doc. 2, to proceed without the prepayment ofthe filing
fee is granted.
2. Plaintiff shall pay an initial filing fee in the amount of$14.00 to the Clerk of
the U.S. District Court, 225 S. Pierre Street, Pierre, SD,57501.
3. 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.
Distriet Court Clerk's office pursuant to 28 U.S.C. § 1915(b)(2), until the $350.00 filing
fee is paid in full.
4. The Clerk of Court shall send a copy ofthis order to the appropriate official at
plaintiffs institution.
5. This matter is dismissed with prejudice and without costs pursuant to 28 U.S.C.
§ 1915(e)(2)(B). This dism^^l constitutes a first strike pursuant to 28 U.S.C. § 1915(g).
DATED this November, 2022.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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