Borges v. US Marshall et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
1 (J,2m
SLSJJK.
MARINO MANUEL BORGES, I:23-CV-0I003-CBK
Plaintiff,
vs.
MEMORANDUM OPINION
AND ORDER
U.S. MARSHAL,ROBERTS COUNTY
JAIL, JAMES L. FOSTER, Jail
Administrator, Roberts County Jail, and
ROBERTS COUNTY SHERIFF,
Defendants.
Plaintiff is a federal pretrial detainee at the Cass County Jail in Fargo, North
Dakota. He is facing charges in the United States District Court for the District ofNorth
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 a complaint pursuant to 42 U.S.C. § 1983 and 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 ofa 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 firivolous after review under 28 U.S.C. § 1915(e)(2). i/

A prisoner must pay, as an initial partial filing fee, 20% ofthe greater ofthe
average monthly deposits to the prisoner's aceount or the average monthly balance ofthe
prisoner's aceount 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$5.00.
The Prison Litigation Reform Act requires the Court to screen prisoner complaints
and dismiss any complaint that is "(1)frivolous, malicious, or fails to state a claim upon
which relief may be granted or(2)seeks monetary relief from a defendant who is
immune from such relief." 28 U.S.C. § 1915A(b). I am required to give the plaintiffs
pro se complaint liberal construction and identify any diseemable cognizable claim.
Solomon v. Petrav. 795 F.3d 777, 787(8th Cir. 2015). I have conducted an initial review
as required by § 1915A.
This is plaintiffs second suit against the U.S. Marshall and the Roberts County
Jail arising out of his federal pretrial detention. Plaintiffs first suit, 22:l-cv-01015-CBK
was dismissed on November 28, 2022, upon initial review. The allegations in the current
complaint mirror the allegations in the first suit. Construing plaintiffs complaint
liberally, plaintiffs complaint claims defendant U.S. Marshal violated the Speedy Trial
Act, 18 U.S.C. § 3161(h)(1)(F), which excludes from the computation delay attributable
to transportation of a defendant to and from 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 contends such
activities violate his federal constitutional rights, amount to kidnapping, trafficking,
obstruction ofjustice, and depravation ofliberty.
Plaintiff further contends that defendants violated his right to communicate with
the federal 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, the FBI, US Marshal, and that defendants have refused to provide contact
information for several national legal organizations. He states that he has asked to be
placed in the "shu" which I assume means "special housing unit" and defendants have
refused. Finally he contends that defendants "have deseriminate (sic) about me praying
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to Santa Muerte" and that the food and water are horrible, He contends such activities
violate his federal constitutional rights and amount to obstruction ofjustice.
Finally, plaintiff claims the "sheriff officer" walk in the dorms with their guns,
which is intimidating, and they abuse their power. He cites no statutes or constitutional
rights which were violated by this alleged behavior.
Plaintiff seeks $100 million damages from the U.S. Marshal, $50 million damages
from the Roberts County Jail, and $500,000 damages from the Sheriffs Department. He
also seeks release from jail and dismissal of his federal charges.
Plaintiffs complaint fails to state a claim for the same reasons his prior complaint
was dismissed.
"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 that 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 of the federal criminal proceedings pending against plaintiff in 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 possibly restore
competency.
Plaintiffs claims regarding his inability to communicate with the federal court in
North Dakota, the public defender, or the U.S. Marshals Service arise, if at all, under the
First Amendment right to access the courts. "To succeed in an access-to-courts claim, 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)(quotins Lewis
V. Casev. 518 U.S. 343, 353, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)), and that he has
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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 ofthe plaintiffs criminal file. United States v. Marino
Manuel Borges. District ofNorth Dakota, 3:22-cr-00031-PDW, available in PACER and
CMECF. Since 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 criminal ease and therefore made available to the Court. Since the dismissal of his
first § 1983 complaint, he has written seven letters addressed to the Court. Plaintiff is
represented in his District ofNorth Dakota criminal ease by a federal public defender
who filed a motion for a status conference in the criminal case to discuss the B.O.P.'s
delay in admitting Mr. Borges for restoration of competency.
Plaintiff has failed to state a claim for violation of his First Amendment right to
access the courts. His claim that he has been unable to access 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 record in that case.
Plaintiff has failed to sufficiently allege any First Amendment claim arising out of
his religious preferences nor has he plausibly alleged an Eighth or Fourteenth
Amendment claim for the conditions of his confinement.
Based upon the foregoing,
IT IS ORDERED:
1. Plaintiffs application. Doc. 2, to proceed without the prepayment ofthe filing
fee is granted.
2. Plaintiff shall pay an initial filing fee in the amount of$10.00 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 $5.00, 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.
District Court Clerk's office pursuant to 28 U.S.C. § 1915(b)(2), until the $350.00 filing
fee is paid in full.
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4. The Clerk of Court shall send a copy of this 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 dismissal constitutes a second strike pursuant to 28 U.S.C.
§ 1915(g). ^
DATED this "O day ofMarch,2022.
BY THE COURT:
CHARLES B.KORNMANN
United States District Judge