Abdulrazzak v. Warembourg et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
HAIDER ABDULRAZZAK,
Plaintiff,
vs.
CHARISSA WAREMBOURG, in her
individual capacity; ANGELIA M.
GRIES, in her individual capacity;
KARL THOENNES, in his individual
capacity; MINNEHAHA COUNTY, in its
individual and official capacity; CITY OF
SIOUX FALLS, in its individual and
official capacity,
Defendants.
4:22-CV-04099-KES
ORDER GRANTING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS AND 1915 SCREENING
ORDERING SERVICE
Plaintiff, Haider Abdulrazzak, filed a pro se civil rights lawsuit under 42
U.S.C. § 1983. Docket 1. Abdulrazzak moves for leave to proceed in forma
pauperis and included a financial affidavit. Docket 2.
I. 	Motion for Leave to Proceed in Forma Pauperis
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) (citation omitted). Determining whether an applicant
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is sufficiently impoverished to qualify to proceed in forma pauperis under
§ 1915 is committed to the sound discretion of the district court. Cross v. Gen.
Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983). After review of
Abdulrazzak’s financial affidavit, the court finds that he has insufficient funds
to pay the filing fee. Thus, Abdulrazzak’s motion for leave to proceed in forma
pauperis (Docket 2) is granted.
II. 	1915 Screening
A. 	Factual Background
The facts alleged in Abdulrazzak’s complaint are: that while incarcerated
at the Mike Durfee State Prison, Abdulrazzak sent a notice to appeal a state
court decision on May 10, 2016, in order for it to be timely received “on or
before May 23, 2016[.]” Docket 1 at 5. He claims that “[t]he prison mail-room
staff failed to process [his] mail to the court to be received timely.” Id. He claims
that when prison mailroom staff properly mail his legal filings, they are
received by the court within three days of mailing. Id. He also claims that the
Minnehaha County Clerk of Court, Angelia M. Gries, and/or the Minnehaha
County Court Administrator, Karl Thoennes, failed to stamp his appeal as
received on the date it reached the court. Id. at 2-3, 5. Abdulrazzak alleges that
Gries and/or Thoennes instead only stamped the appeal as received when the
circuit court judge signed a notice. Id. He alleges that a previous appeal to the
same court, mailed on May 30, 2013, was “not filed until it was signed by the
judge on June 18, 2013.” Id.
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Abdulrazzak alleges that the city of Sioux Falls and/or Minnehaha
County “failed to supervise or in the alternative train or establish policy” that
would instruct court employees to file appeals when they are received. Id. He
alleges that the city of Sioux Falls and/or Minnehaha County also failed to take
corrective action when they knew or reasonably should have known of an
ongoing problem. Id. He alleges that these actions have violated his First and
Fourteenth Amendment rights, including his rights to access the courts, to
freedom of speech, and to petition the government. Id. Abdulrazzak states that
he lost his case because it was dismissed as untimely. Id. at 6. He states that
the cause for this action did not arise until the United States Supreme Court
denied him a certificate of certiorari on October 5, 2020. Id. at 5.
Abdulrazzak claims that he “suffered depression, embarrassment, and
other mental and emotional damages” as a result of his case’s dismissal. Id. at
6. He asks this court for “[d]amages as [they] may be determined in later
stages.” Id.
B. 	Legal Background
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). Pro se and civil
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, “a pro 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
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Minneapolis, 518 F. App’x 502, 504 (8th Cir. 2013) (per curiam) (citation
omitted).
A complaint “does not need detailed factual allegations . . . [but] requires
more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal citations omitted). If it does not contain these bare essentials,
dismissal is appropriate. See Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir.
1985) (citation omitted) (explaining that a district court does not err when it
dismisses a claim based on vague allegations or unsupported generalizations).
Twombly 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 of
the allegations in the complaint are true[.]” Twombly, 550 U.S. at 555 (internal
citation 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 Twombly, 550 U.S. at 553-63)).
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). See Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th Cir.
1982) (per curiam); see also Key v. Does, 217 F. Supp. 3d 1006, 1007 (E.D.
Ark. 2016). The court must dismiss claims if they “(i) [are] frivolous or
malicious; (ii) fail[] to state a claim on which relief may be granted; or (iii) seek[]
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B). The court will now assess each individual claim under 28
U.S.C. § 1915.
C. 	Legal Analysis
1. 	Claims Against the City of Sioux Falls
Abdulrazzak brings claims against the City of Sioux Falls. Docket 1 at 4.
“[A] local government may not be sued under § 1983 for an injury inflicted
solely by its employees or agents.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
694 (1978). A municipal government may only be sued “when execution of a
government’s policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy,” deprives a
plaintiff of a federal right. Id.; see also Clay v. Conlee, 815 F.2d 1164, 1170
(8th Cir. 1997) (finding that “the [governmental] entity’s official ‘policy or
custom’ must have ‘caused’ the constitutional violation” in order for that entity
to be liable under § 1983).
Here, Abdulrazzak makes no claims regarding policies or customs of the
City of Sioux Falls. Although he alleges that the City of Sioux Falls “either
failed to train its employees or to properly supervise them[,]” he only describes
the actions of employees of the state of South Dakota1 in his complaint. See
1 The court takes judicial notice of the fact that the Minnehaha County Clerk of
Court and the Minnehaha County Court Administrator are employees of the
South Dakota Unified Judicial System and are thus employees of the state of
South Dakota. See S.D. Const. art. V, § 11 (explaining that “[t]he chief justice
[of the South Dakota Supreme Court] is the administrative head of the unified
judicial system” and that “[d]uties of clerks shall be defined by Supreme Court
rule”).
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Docket 1 at 2-3, 5. Thus, his claims against the City of Sioux Falls are
dismissed without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).
2. 	Claims Against Minnehaha County
Abdulrazzak brings claims against Minnehaha County. Id. at 3. As above,
these claims require that “execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy,” deprived Abdulrazzak of a federal right. See
Monell, 436 U.S. at 694. Abdulrazzak alleges that Second Judicial Circuit Court
employees at the Minnehaha County Courthouse follow an unconstitutional
policy or custom. See Docket 1 at 2-3, 5. But these employees are employees of
the state of South Dakota, and the Second Judicial Circuit is a state entity. See
S.D. Const. art. V, § 11. Thus, Abdulrazzak’s claims against Minnehaha
County are dismissed without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).
3. 	Individual Capacity Claims
“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff
must plead that each Government-official defendant, through the official's own
individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009).
Thus, each Government official . . . is only liable for his or her own
misconduct. As we have held, a supervising officer can be liable for
an 	inferior 	officer's 	constitutional 	violation 	only 	if 	he 	directly
participated in the constitutional violation, or if his failure to train
or supervise the offending actor caused the deprivation.
Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010) (cleaned up). Abdulrazzak’s
individual capacity claims must allege that each individual defendant either
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participated in the unconstitutional conduct or caused the conduct to occur
through a failure to train or supervise the offending actor.
a. 	First Amendment Right to Petition the
Government Claims, First Amendment Freedom of
Speech Claims, and Fourteenth Amendment Claims
Against Warembourg, Gries, and Thoennes
Abdulrazzak brings claims against Charissa Warembourg, Gries, and
Thoennes in their individual capacities for violation of his First Amendment
right to petition the government, his First Amendment right to freedom of
speech, and his Fourteenth Amendment rights. Docket 1 at 2-3, 5.
Abdulrazzak makes no claims regarding these rights other than those related
to his right to access the courts. See id. at 5.
The Supreme Court has explained that “[t]he right of access to courts for
redress of wrongs is an aspect of the First Amendment right to petition the
government.” Borough of Duryea v. Guarnieri, 564 U.S. 379, 387 (2011)
(quoting Sure–Tan, Inc. v. NLRB, 467 U.S. 883, 896-97 (1984)). Also, “the rights
of speech and petition share substantial common ground. . . . [T]he right to
speak and the right to petition are ‘cognate rights.’ ” Id. at 388 (quoting Thomas
v. Collins, 323 U.S. 516, 530 (1945)). Thus, Abdulrazzak’s First Amendment
right to petition the government claims and free speech claims are best
construed as First Amendment access to the courts claims. See id. To the
extent that Abdulrazzak brings separate First Amendment claims for violation
of his right to petition the government and his right to free speech against
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Warembourg, Gries, and Thoennes in their individual capacities, those claims
are dismissed without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).
Abdulrazzak does not specify the Fourteenth Amendment rights he
believes have been violated or how any defendant has violated those rights. See
Docket 1 at 5. The Supreme Court has described “the basis of the
constitutional right of access to courts” as “unsettled[.]” Christopher v. Harbury,
536 U.S. 403, 415 (2002). In Christopher, the Supreme Court noted that past
decisions “have grounded the right of access to courts” in a variety of
constitutional rights, including the Fourteenth Amendment Equal Protection
and Due Process clauses. Id. at 415 n.12 (citations omitted). This court
construes Abdulrazzak’s Fourteenth Amendment claims as a further attempt to
bring his access to the court claims because he only alleges facts regarding a
denial of his right to access the courts. See Docket 1 at 5. These claims are
best construed as First Amendment access to the courts claims. See Borough of
Duryea, 564 U.S. at 387 (citing Sure–Tan, Inc., 467 U.S. at 896-97). Thus,
Abdulrazzak’s Fourteenth Amendment claims against Warembourg, Gries, and
Thoennes in their individual capacities are dismissed without prejudice under
28 U.S.C. § 1915(e)(2)(B)(ii).
b. 	First Amendment Access to the Courts Claim
Against Warembourg
Abdulrazzak brings a First Amendment access to the courts claim
against Warembourg, the Mike Durfee State Prison mailroom supervisor.
Docket 1 at 2, 5. Construing his complaint liberally, he claims that
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Warembourg failed to supervise mailroom employees, resulting in mailroom
staff failing to timely send his mail to the court. See id. at 5. One requirement
for a failure to train or supervise claim against an individual defendant is that
the supervising officer “demonstrated deliberate indifference to or tacit
authorization of the offensive acts” after receiving notice of a pattern of
unconstitutional acts. Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997)
(quotation omitted).
Here, Abdulrazzak fails to allege facts sufficient to state a claim for
failure to train or supervise against Warembourg in her individual capacity.
Although he alleges that Warembourg’s failure to supervise mailroom
employees caused his appeal to be untimely received, he makes no claim that
Warembourg had notice that his legal mail was being sent out late, nor does he
claim that Warembourg was deliberately indifferent to or had tacitly authorized
the late sending of legal mail. See Docket 1 at 5. Instead, he only claims that
prison mailroom staff failed to send his legal mail in a timely manner. See id.
Thus, Abdulrazzak’s failure to supervise claim against Warembourg in her
individual capacity for violation of his First Amendment right to access the
courts is dismissed without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).
Further, Abdulrazzak makes no claim that Warembourg directly
participated in the delay of his legal mail. See id. Thus, to the extent that
Abdulrazzak brings a First Amendment access to the courts claim against
Warembourg in her individual capacity for her own direct involvement, this
claim is dismissed without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).
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c. 	First Amendment Access to the Courts Claim
Against Gries and Thoennes
Abdulrazzak brings a First Amendment access to the courts claim
against Gries and Thoennes in their individual capacities. Docket 1 at 2-3, 5.
“The Constitution guarantees prisoners a right to access the courts.” White v.
Kautzky, 494 F.3d 677, 679 (8th Cir. 2007). To succeed on a claim for denial of
access to the courts, a plaintiff must show that he suffered actual injury as a
result of the defendants’ actions. Lewis v. Casey, 518 U.S. 343, 349 (1996). In
order to satisfy the actual 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).
Here, Abdulrazzak alleges facts sufficient to state a claim for violation of
his First Amendment right to access the courts against Gries and Thoennes in
their individual capacities. He alleges that Gries and Thoennes failed to stamp
his notice of appeal on the date it was received and instead waited until the
circuit court judge signed the notice. See Docket 1 at 5. Abdulrazzak claims
that his appeal was then dismissed as untimely because of this action,
satisfying the actual injury requirement of Lewis. See id.; 518 U.S. at 349.
Thus, Abdulrazzak’s First Amendment access to the courts claim against Gries
and Thoennes in their individual capacities survives § 1915 screening.
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d. 	Conspiracy Claim
Abdulrazzak alleges that he was denied access to the court “due to each
defendant . . . conspiring with each other[.]” Docket 1 at 5. To plead a civil
conspiracy under § 1983, Abdulrazzak must show “(1) two or more persons; (2)
an object to be accomplished; (3) a meeting of the minds on the object or
course of action to be taken; (4) the commission of one or more unlawful overt
acts; and (5) damages as the proximate result of the conspiracy.” Livers v.
Schenck, 700 F.3d 340, 360-61 (8th Cir. 2012) (quoting In re
Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484,
1498 (8th Cir. 1997)). Abdulrazzak does not allege that any of the defendants
had reached an agreement or that they had a meeting of the minds. See
Reasonover v. St. Louis County, 447 F.3d 569, 582 (8th Cir. 2006); Murray v.
Lene, 595 F.3d 868, 870 (8th Cir. 2010). Thus, his conspiracy claim against
Warembourg, Gries, and Thoennes in their individual capacities is dismissed
without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).
Thus, it is ORDERED:
1. 	That Abdulrazzak’s motion for leave to proceed in forma pauperis
(Docket 2) is granted.
2. 	That Abdulrazzak’s First Amendment access to the courts claim
against Gries and Thoennes in their individual capacities survives
§ 1915 screening.
3. 	That all of Abdulrazzak’s claims against all remaining defendants are
dismissed without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).
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4. 	That 	the 	Clerk 	of 	Court 	shall 	send 	blank 	summons 	forms 	and
Marshal Service Forms (Form USM-285) to Abdulrazzak so that he
may cause the complaint to be served upon defendants Gries and
Thoennes.
5. 	That Abdulrazzak shall complete and send the Clerk of Court a
separate summons and USM-285 form for defendants Gries and
Thoennes. 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 forms are not submitted as directed, the
complaint may be dismissed.
6. 	The 	United 	States 	Marshal 	Service 	shall 	serve 	the 	completed
summonses, together with a copy of the complaint (Docket 1) and
this order, upon defendants Gries and Thoennes.
7. 	Defendants Gries and Thoennes will serve and file an answer or
responsive pleading to the complaint on or before 21 days following
the date of service or 60 days if the defendants fall under Fed. R.
Civ. P. 12(a)(2) or (3).
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8. 	Abdulrazzak 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 the court’s Local Rules while this case is pending.
Dated November 1, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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