Gomez v. State of South Dakota et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DANIEL JOSE GOMEZ, 4:20-CV-04151-RAL
Plaintiff,
vs.
STATE OF SOUTH DAKOTA,MINNEHAHA
COUNTY STATES ATTORNEYS OFFICE,
MELLISA SOMMORS,Attorney for the
Minnehaha County Public Defender's Office;
MARK KADI, Attorney for Public Advocates
Office, and TIM HERSCHBERGER,Attorney
for the Minnehaha County Public Defender's
Office,
28 U.S.C. § 1915 SCREENING ORDER FOR
SERVICE IN PART AND DISMISSAL IN
PART AND ORDER GRANTING MOTION
FOR LEAVE TO PROCEED WITHOUT
PREPAYMENT OF FEES AND DENYING
MOTION TO APPOINT COUNSEL
Defendants.
Plaintiff Daniel Jose Gomez filed a pro se civil rights lawsuit under 28 U.S.C. 1983. Doc.
1 at 2-3. Gomez filed a motion to amend his complaint. Doc. 6. Gomez also moves for leave to
proceed without prepayment offees and appointment of counsel. Docs. 2, 3.
I. Motion for Leave to Proeeed without Prepayment of Fees
Gomez moves for motion for leave to proceed without prepayment of fees. Doc. 2. A
federal court may authorize the commencement of any lawsuit without prepayment of fees when
an applicant submits an affidavit stating he or she is unable to pay the costs of the lawsuit. 28
U.S.C. § 1915(a)(1)."[I]n forma pauperis status does not require a litigant to demonstrate absolute
destitution." Lee v. McDonald's Corp.. 231 F.3d 456,459(8th Cir. 2000). But in forma pauperis
status is a privilege, not a right. Williams v. McKenzie. 834 F.2d 152, 154 (8th Cir. 1987).
I
Determining whether an applicant is sufficiently impoverished to qualify to proceed in forma
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pauperis under § 1915 is committed to the sound discretion of the district court. Cross v. Gen.
Motors Corp., Ill F.2d 1152, 1157 (8th Cir. 1983). After review of Gomez's financial affidavit,
the Court finds that he has insufficient funds to pay the filing fee. Thus, Gomez's motion for leave
to proceed/without prepayment offees. Doc. 2, is granted.
II. Motion to Amend
Gomez filed a "motion to amend complaint to include defendant." Doc. 6. It appears
Gomez would like to add the Minnehaha County Jail as a defendant. Id at 1. Additionally, Gomez
request that his amended complaint be "merge[d]" with his original complaint. Id at 6. Civil rights
and pro se complaints must be liberally construed. Erickson v. Pardus. 551 U.S. 89, 94
(2007); Bediako v. Stein Mart. Inc.. 354 F.3d 835, 839 (8th Cir. 2004). "[AJlthough pro se
pleadings are to be construed liberally, pro se litigants are not excused from compliance with
procedural and local rules." Walker v. Shafer, No. 16-CV-5121-JLV, 2019 WL 1369594, at *1
(D.S.D. Mar. 26, 2019)(citation omitted); see Schoolev v. Kennedv. 712 F.2d 372, 373 (8th Cir.
1983). The District of South Dakota's Local Rules state that "any party moving to amend a
pleading must attach a copy of the proposed amended pleading to its motion to amend with the
proposed changes highlighted or underlined so that they may be easily identified." D.S.D. Civ. LR
15.1.
Here, Gomez did not comply with the local rules. His motion to amend does not contain
an attachment of his proposed amended pleading. S^ Doc. 6. Instead, Gomez's motion to amend
and his proposed additions are contained in one document. S^ id Gomez also alleges additional
facts regarding the original defendants, but fails to articulate facts regarding the defendant he
wishes to add to his action. Id at 7-8. Additionally, Gomez's amended motion is premised on the
summary judgment standard. Id at 2-3. Because Gomez's motion to amend does not comply with
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the local rules, the court denies Gomez's motion to amend, Doc. 6, and will screen Gomez's
original complaint. Doc. 1, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
III. Allegations of Gomez's Complaint
Gomez alleges that Tim Herschberger, an attorney for the Minnehaha County Public
Defender's Office, deprived Gomez of his right to a speedy trial and effective assistance of
counsel. Doc. 1 at 11. Herschberger was assigned to Gomez's original criminal case. Id at 10, 11.
Gomez claims that Herschberger was "adamant" about Gomez waiving his right to a speedy trial
and pleading guilty to a lesser charge. Id at 11. Gomez alleges that he never intended to plead
guilty or waive his speedy trial rights; instead, he demanded a speedy trial. Id After this discussion
with Herschberger, Gomez had a court hearing. Id At the hearing, Gomez had Herschberger
removed from the case. Id
Julie Hoffer (not a named Defendant) was assigned to Gomez's case despite Gomez's
objections against her office being appointed because Gomez alleges that he had previous
ineffective assistanee of counsel from Hoffer. Id Although Gomez voiced these concerns to the
court, Hoffer was still assigned to the case.Id Hoffer reassigned the case to Mark Kadi,an attorney
at the Public Advocates Office. Id at 10, 11. Gomez claims that Hoffer conspired with Kadi to
deprive Gomez of his right to effective assistance of counsel. Id. at 11.
Once Kadi was assigned to his case, Gomez forwarded his emails with Herschberger
regarding speedy trial to Kadi and Hoffer. Id Gomez claims that Kadi deprived Gomez ofhis right
to a trial by coercive threats and duress in an attempt to have Gomez waive that right and plead
guilty. Id Gomez did not agree to this. Id Gomez claims that Kadi emailed Gomez, stating his
case was dismissed. Id However, Gomez alleges that a resisting arrest warrant regarding the
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"dismissed" case was issued for Gomez. Id Melissa Sommers, an attomey at the Minnehaha
County Public Defender's Office, was appointed to Gomez's resisting arrest case. Id at 10, 11.
Gomez claims that the state of South Dakota, who was represented by the Minnehaha
County State's Attomey's Office, conspired with all the defendants to deprive Gomez ofhis rights.
Id at 11. Gomez contends that the speedy trial rule's 180-day deadline for an entry of plea of
guilty, negotiations of guilt, or for a trial by jury has passed. Id Yet, South Dakota and the State's
Attomey's Office "took it upon itself to reinitiate" those charges after the 180-day deadline. Id
Gomez's trial was scheduled beyond the 180-day deadline. Id Gomez claims that the State did not
show good cause as to why Gomez's speedy trial date should be set back or why the proceedings
should be delayed. Id Gomez alleges that he did not abscond or waive his rights to a speedy trial.
Id
Gomez claims that the State then dismissed his two criminal cases (original charge and the
resisting arrest charge) again in the same fashion—^meaning that"these cops can come arrest[him]
in a week or 2 months or another year from now with the same charges again and the same
information from last year[.]" Id at 12. He alleges that this goes against his speedy trial rights. Id
Gomez argues that the State is essentially waiving Gomez's speedy trial rights when they dismiss
a case "when it feels it has a weak case or because they [cannot] intimidate unwilling witness[es]
in showing up...." Id Gomez alleges that the "continued malicious prosecution" of his case is
"illegal and malicious." Id
Gomez requests that his criminal cases be dismissed with prejudice and that opposing and
assigned counsel should be fined $500 imder South Dakota law. Id He also requests monetary
damages of $1 million. Id at 14, 15. He requests injunctive relief against the State of South
Dakota's "misuse of dismissals without prejudice that eause undue delays to [defendants'] rights
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to speedy trials" by discontinuing the "separate dismissals with/without prejudice" and "require
[the State ofSouth Dakota] to petition and show good cause for delays or extensions...." Id at 14.
Gomez also requests the legalization of recreational marijuana, THC, and byproducts and
injunctive relief to allow remote electronic filings for petitions. Id at 14-15.
IV. Discussion
A. Screening and Dismissal Standards
When a district court determines a plaintiff is financially eligible to proceed in forma
pauperis under 28 U.S.C. § 1915(a), the court must then determine whether the complaint should
be dismissed under 28 U.S.C. § 1915(e)(2)(B). Martin-Trieona v. Stewart. 691 F.2d 856, 857(8th
Cir. 1982); see also Key v. Does. 217 F. Supp. 3d 1006, 1007(E.D. Ark. 2016). Under 28 U.S.C.
§ 1915(e)(2)(B), the court must screen complaints and dismiss them if they are "(i) fiivolous or
malicious; (ii) fail[] to state a claim upon which relief may be granted; or (iii) seekf] monetary
relief against a defendant who is immune from such relief."
The court must assume as true all facts well pleaded in the complaint. Estate of Rosenberg
V. Crandell, 56 F.3d 35, 36 (8th Cir. 1995). Civil rights and pro se complaints must be liberally
construed. Erickson v. Pardus. 551 U.S. 89, 94(2007); Bediako v. Stein Mart. Inc.. 354 F.3d 835,
839 (8th Cir. 2004). Even with this construction,"a pro se complaint must contain specific facts
supporting its conclusions." Martin v. Sargent. 780 F.2d 1334, 1337(8th Cir. 1985); see also Ellis
V. City of Minneapolis. 518 F. App'x 502, 504 (8th Cir. 2013). Civil rights complaints cannot be
merely conclusory. Davis v. Hall 992 F.2d 151,152(8th Cir. 1993);Parker v. Porter. 221 F. App'x
481,482(8th Cir. 2007).
A complaint "does not need detailed factual allegations ...[but] requires more than labels
and conclusions, and a formulaic recitation ofthe elements of a eause of action will not do." Bell
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Atl. Corp. V. Twombly, 550 U.S. 544, 555 (2007). If a complaint does not contain these bare
essentials, dismissal, is appropriate. Beavers v. Lockhart. 755 F.2d 657, 663 (8th Cir. 1985).
Twombly requires that a complaint's factual allegations must be "enough to raise a right to relief
above the speculative level on the assumption that all the allegations in the eomplaint are true."
Twombly,550 U.S. at 555; 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 regarding all material
elements necessary to sustain reeovery under some viable legal theory).
B. Analysis
1. Claims Against the State of South Dakota
Gomez sues the state of South Dakota. Doc. 1 at 1, 10. The Supreme Court of the United
States has explained that Congress, in passing 42 U.S.C. § 1983, did not abrogate states' Eleventh
Amendment immunity from suit in federal eourt. Will v. Mich. Den't. of State Police. 491 U.S.
58, 65(1989)(eitations omitted). "Eleventh Amendment immunity extends to states and arms of
the statel.l" Thomas v. St. Louis Bd. of Police Comm'rs. 447 F.3d 1082, 1084 (8th Cir.
2006)(internal quotation omitted). Gomez's claims against the state of South Dakota are barred
by the Eleventh Amendment and dismissed under 28 U.S.C. § 1915(e)(2)(B).
2. Claims Against Minnehaha County State's Attorney's Office
Gomez asserts Sixth Amendment claims against the Miimehaha County State's Attorney's
Offiee. Doc. 1 at 2, 10, 11. "[N]either municipalities nor government officials may be held liable
for unconstitutional conduct under a theory of respondeat superior." Rogers v. Kmg. 885 F.3d
1118, 1122-23 (8th Cir. 2018)(citing Monell v. Den't of Soc. Servs.. 436 U.S. 658,691 (1978)).
Thus, a governmental entity is liable under § 1983 "only when the entity itselfis a 'moving foree'
behind the violation. That is, the entity's offieial 'policy or custom' must have 'caused' the
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constitutional violation...." Clay v. Conlee. 815 F.2d 1164, 1170(8th Cir. 19871: see also Monell.
436 U.S. at 694 ("[I]t is when execution of a government's poliey or custom ... inflicts the injury
that the government as an entity is responsible vmder § 1983.").
To establish governmental liability premised on an unofficial custom rather than an offieial
policy, a plaintiff must allege facts to support a finding of"a continuing, widespread, persistent
pattern of uneonstitutional misconduet by the governmental entity's employees" and "deliberate
indifference to or tacit authorization of such conduct by the governmental entity's polieymaking
officials after notiee to the offieials ofthat miseonduct." Brewingfon v. Keener. 902 F.3d 796,801
(8th Cir. 2018)(eitation and quotation marks omitted). A § 1983 complaint does not need to
"specifically plead the existence of an unconstitutional policy or custom to survive a motion to
dismiss." Crumplev-Patterson v. Trinity Lutheran Hosp.. 388 F.3d 588,591 (8th Cir. 2004)(citing
Doe V. Sch. Dist. of Norfolk. 340 F.3d 605, 614 (8th Cir. 2003)). But the complaint must still
include some allegation, referenee, or language that creates an inference that the eonduet resulted
from an unconstitutional policy or custom. Id.; see also Doe. 340 F.3d at 614("At a minimum, a
eomplaint must allege facts which would support the existenee of an unconstitutional policy or
custom.").
Here, Gomez alleges that the State's Attorney's Office misuses the praetiee of dismissing
cases without prejudiee and reinitiating charges after a 180-day period. Doe. 1 at 11, 14. Gomez
stated that he has had three state criminal cases dismissed in this manner and fears that he eould
later be arrested on the same eharges and information later. Id. at 12. Gomez eontends that this
praetiee violates his speedy trial rights under the Sixth Amendment and causes undue delays to
eriminal defendants. Id Based on Gomez's alleged facts, "one could begin to draw an inferenee
that the eonduet complained of, namely,[repeated dismissals and reindietments ofeases], resulted
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from an unconstitutional policy or custom" of the Minnehaha County State's Attomey's Office.
Doe. 340 F.3d at 614. Overall, these allegations suffice at this preliminary stage of the case to
make out a § 1983 claim against the Minnehaha County State's Attomey's Office.
3. Official Capacity Claims
Gomez asserts Sixth Amendment claims against Tim Herschberger, Mark Kadi, and
Melissa Sommers (public defenders). Doc. 1 at 1, 10. Because the complaint did not specifically
name Herschberger, Kadi, and Sommers in their individual capacity, the Court presumes that they
were sued only in their official capacity. S^ Veatch v. Bartels Lutheran Home. 627 F.3d 1254,
1257 (8th Cir. 2010). A suit against a governmental employee in his or her official capacity is
treated as a suit against the governmental agency for which the employee works. Kentuckv v.
Graham.473 U.S. 159, 166(1985)("[A]n official-capacity suit is, in all respects other than name,
to be treated as a suit against the entity."); Hess v. Abies. 714 F.3d 1048, 1054 (8th Cir. 2013).
Because Herschberger, Kadi, and Sommers are Minnehaha County public defenders/advocates,
Gomez's claims against them in their official capacities are the equivalent to claims against
Minnehaha County. And as stated above, a governmental entity like Mirmehaha County may not
"be held liable for unconstitutional conduct under a theory of respondeat superior." Rogers. 885
F.3d at 1122-23 (citing Monell.436 U.S. at 691). Instead, for a governmental entity to liable under
§ 1983,"the entity's official 'policy or custom' must have 'caused' the constitutional violation...."
Clay, 815 F.2d at 1170.
Here, Gomez claims that Herschberger violated his rights to a speedy trial and effective
assistance of counsel by encouraging Gomez to waive his speedy trial rights. Doc. 1 at 11. Next,
Gomez contends that Kadi deprived him of his right to a trial by threats and conspired to deprive
Gomez of his right to effective assistance of counsel. Id. Gomez also claims that Sommers
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conspired to deprive Gomez of all his rights. Id Overall, Gomez fails to allege that these
defendants' aetions stem from an uneonstitutional poliey or custom of Minnehaha County and that
the poliey or eustom caused these injuries. Gomez's claims against Tim Herschberger, Mark Kadi,
and Melissa Sommers in their offieial eapaeity are dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a elaim upon whieh relief may be granted.
V. Motion for Appointment of Counsel
Gomez moves for appointment of eounsel. Doe. 3."A pro se litigant has no statutory or
constitutional right to have counsel appointed in a eivil case." Stevens v. Redwing. 146 F.3d 538,
546 (8th Cir. 1998). Under 28 U.S.C. § 1915(e)(1), "[t]he eourt may request an attorney to
represent any person unable to afford eoimsel." "[T]he appointment of eounsel should be given
serious consideration by the distriet eourt if the plaintiff has not alleged a frivolous or malicious
claim." Nelson v. Redfield Lithograph Printing. 728 F.2d 1003, 1005(8th Cir. 1984).
When determining whether to appoint counsel to a pro se litigant, the Court will look at
the factual and legal complexity of the claims. The Eighth Circuit considers: "the factual
complexity of the case, the ability of the indigent to investigate the faets, the existenee of
conflicting testimony, the ability of the indigent to present his elaim and the eomplexity of the
legal issues." Abdullah v. Gunter. 949 F.2d 1032, 1035 (8th Cir. 1991)(eiting Jphnson_jy^
Williams. 788 F.2d 1319, 1322-23 (8th Cir. 1986)(holding that the distriet eourt erred when it
denied plaintiffs motion for eounsel solely beeause the plaintiff did not raise factually complex
issues)). Gomez's elaims do not appear to be faetually or legally eomplex. Doc. 1.
Additionally, Gomez is not in eustody and will able to investigate the facts. Because this Court
believes Gomez can adequately present his sole remaining claim at this time, his motion for
appointment of eounsel. Doc. 3,is denied.
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VI. Order
Accordingly, it is hereby
ORDERED as follows:
1. Gomez's motion for leave to proceed without prepayment offees, Doc. 2, is granted.
2. Gomez's motion to amend. Doc. 6, is denied.
3. Gomez's complaint is dismissed in part under 28 U.S.C. § 1915(e)(2)(B). Gomez's
Sixth Amendment claim against the Minnehaha County State's Attorney's Office
survives initial screening, but his claims against the State of South Dakota, Tim
Herschberger, Mark Kadi, and Melissa Sommers are dismissed without prejudice.
4. Gomez's motion for appointment of counsel. Doc. 3, is denied.
5. The clerk of court is directed to send blank summons forms and U.S. Marshals Service
Form(Form USM-285)to Gomez so he may cause the summons and the complaint to
be served upon the defendant, Miimehaha Coimty State's Attorney's Office.
6. Gomez shall complete and send the Clerk of Courts a summons and USM-285 form for
the defendant, Minnehaha County State's Attorney's Office. Upon receipt of the
completed summons and USM-285 forms, the Clerk of Court will issue the summons.
If the completed summons and USM-285 form are not submitted as directed, the
complaint may be dismissed.
7. The United States Marshals Service shall serve a copy of the complaint. Doc. 1,
summons, and this Order upon the Minnehaha County State's Attorney's Office.
8. Defendant will serve and file an answer or responsive pleading to the remaining claim
in the complaint on or before 21 days following the date of service, unless this Court,
on motion, grants a longer time period within which to answer.
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9. Gomez must keep the Court informed ofhis current address at all times. All parties are
bound by the Federal Rules of Civil Procedure and by the Court's Civil Local Rules
while this case is pending.
DATED December 3^ .2020.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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