Parizek v. Larson et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Scott Roman Parizek, 	)
)
Plaintiff, 	) 	ORDER DENYING MOTION TO
) 	AMEND, DISMISSING COMPLAINT
vs. 	) 	IN PART, AND GRANTING LEAVE
) 	TO AMEND ADA CLAIM
Rozanna C. Larson, et al., 	)
) 	Case No. 1:22-cv-052
Defendants. 	)
Plaintiff Scott Roman Parizek (“Parizek”) is currently incarcerated at the Ward County Jail
in Minot, North Dakota. He is proceeding pro se and in forma pauperis. (Doc. Nos. 1, 4, 6). He
is endeavoring to sue Ward County State’s Attorney Rozanna Larson, Assistant Ward County
State’s Attorney Leah Viste, McHenry County State’s Attorney Joshua Frey, Ward County Sheriff
Bob Roed, McHenry County Sheriff Trey Skager, and Judges Michael Hurley and Douglas Mattson 1
in their official and individual capacities. (Doc. No. 6). He is also endeavoring to sue the State of
North Dakota. (Id.). Finally, he has filed motion seeking leave to amend his pleadings to include
a challenge to his present confinement. (Doc. No. 9).
The court has screened Parizek’s complaint as mandated by 28 U.S.C. §1915A and reviewed
his motion. 	For the reasons that follow, the court shall deny his motion to amend, dismiss his
complaint in part, and grant him leave to file an amended complaint to address the pleading
deficiencies with respect to his remaining claim.
1 Parizek neither names Judge Mattson as a defendant in the caption of his complaint nor lists Judge Mattson
with the other defendants in the body of the complaint under the heading “Parties.” He does, however, appear to assert
claims against Judge Mattson in the body of the complaint under the heading “Statement of Claim.”
1
Case 1:22-cv-00052-CRH Document 11 Filed 04/05/22 Page 1 of 12

I. 	STANDARD GOVERNING INITIAL REVIEW
When a prisoner proceeding in forma pauperis seeks to sue a governmental entity, officer,
or employee, the Prison Litigation Reform Act of 1995 ("PLRA") requires the court to conduct an
early screening of the complaint to weed out claims that clearly lack merit with the hope this will
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 required by 28 U.S.C. § 1915A, the court is
required to identify any cognizable claims and to dismiss the complaint, or any part of it, that is
frivolous, malicious, fails to state a claim, or seeks monetary relief from an immune defendant.
The PLRA does not impose any heightened pleading requirements. Jones, 549 U.S. at 211-
12. Consequently, in order to state a cognizable claim, the complaint need only meet the minimum
requirements of Fed. R. Civ. P. 8(a)(2), which are that it contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam).
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); Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). 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
an 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.
2
Case 1:22-cv-00052-CRH Document 11 Filed 04/05/22 Page 2 of 12

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) (“Bell Atlantic”). 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. at 93 (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 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. See id. Frivolous claims are those that are clearly baseless, fanciful,
fantastic, or delusional. See Denton v. Hernandez, 504 U.S. 25, 32-34 (1992).
To state a cognizable claim, a plaintiff must normally allege a violation of a right secured
by the Constitution or the laws of the United States and that the alleged deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Walker v. Reed,
104 F.3d 156, 157 (8th Cir. 1997). 	Even under liberal pleading standards, a pro se litigant, at the
very least, must invoke rights under the Constitution or federal law in order to plead a cognizable
claim. Walker, 104 F.3d at 157-58.
Also, 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
3
Case 1:22-cv-00052-CRH Document 11 Filed 04/05/22 Page 3 of 12

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) (citing other cases). Also, liberal construction does not mean the court is under an
obligation to re-write the complaint. Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir. 2006).
II. 	DISCUSSION
A. 	Complaint
1. 	State of North Dakota
Parizek has named the State of North Dakota as a defendant and seeks to recover damages
from it. As a preliminary matter, the court finds that Parizek’s complaint as it pertains to the State
of North Dakota is subject to dismissal.
The Eleventh Amendment bars "any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State." Congress may abrogate the States' sovereign immunity by expressing its unequivocal
intention to do so and acting pursuant to a valid grant of constitutional authority, or a State may
waive its sovereign immunity by consenting to suit in federal court. See Bd. of Trustees of Univ.
of Alabama v. Garrett, 531 U.S. 356, 363 (2001); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73
(2000); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). However, Congress
did not abrogate the States' sovereign immunity in enacting § 1983, Quern v. Jordan, 440 U.S. 332,
340-45 (1979), and North Dakota has not waived its immunity. Moore v. Hoeven, No. 3:08-CV-50,
2009 WL 3064742 , at * 3 (D.N.D. Sept. 22, 2009) (citing N.D.C.C. § 32-12.2-10). Consequently,
Parizek cannot maintain a claim for damages against the State. The court shall next address the
viability of Parizek’s claims against Sheriffs Roed and Skager.
4
Case 1:22-cv-00052-CRH Document 11 Filed 04/05/22 Page 4 of 12

2. 	Sheriffs Bob Roed and Trey Skager
According to Parizek, he was moved from the Ward County Jail to the Heart of America
Correctional and Treatment Center (“HACTC”) January. (Doc. No. 6). Although not entirely clear,
it appears that Parizek was moved to facilitate his scheduled appearance before Judge Hurley. (Id.).
The apparent effect of this move was an interruption in a methadone treatment program in which
Parizek was participating. (Id.). According to Parizek, he was able to participate in a community
based methadone treatment program while at the Ward County Jail. (Id.). However, he apparently
was unable to participate in any such program while at HACTC and HACTC was either unable or
unwilling to procure methadone for him. (Id.). Consequently, by his calculation, he went without
methadone for seven days. (Id.).
Liberally construing the pleadings, it appears that Parizek is asserting that, by moving him
from the Ward County Jail to HACTC, he was effectively denied methadone and forced to undergo
“cold turkey” withdrawal, which constitutes discrimination on the basis disability in violation of the
Americans with Disabilities Act (“ADA”).
Title II of the ADA provides that “no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42
U.S.C. § 12132 (2006). To prove a violation of Title II, a plaintiff must show that he: (1) “is a
qualified individual with a disability;” (2) “was either excluded from participation in or denied the
benefits of some public entity's services, programs, or activities or was otherwise discriminated
against;” and (3) “that such exclusion, denial of benefits, or discrimination was by reason of the
plaintiff's disability.” Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000).
5
Case 1:22-cv-00052-CRH Document 11 Filed 04/05/22 Page 5 of 12

Drug addiction that substantially limits one or more major life activities is a recognized
disability under the ADA. 28 C.F.R. § 35.104(1)(ii) (“The phrase physical or mental impairment
includes ... drug addiction....”). However, the term “qualified individual with a disability” does not
include an individual who is currently engaging in the illegal use of drugs. 28 C.F.R. § 35.104(5)(iii).
A person is “not considered ‘qualified’ under the [ADA] if [he has] used illegal drugs ‘recently
enough so that continuing use is a real ongoing problem.’” New Directions Treatment Servs. v. City
of Reading, 490, F.3d 293, 309 (3d Cir.2007) (quoting Brown v. Lucky Stores, Inc., 246 F.3d 1182,
1188 (9th Cir. 2001).
Here, it is unclear whether Parizek would constitute a qualified individual under the ADA as
it unclear whether he has a real ongoing problem with substance abuse, how long he had been in
custody, and how long he had been undergoing methadone treatment prior to being moved from the
Ward County Jail to HACTC. See e.g., McKissick v. Cty. of York, No. 1:09-CV-1840, 2011 WL
5117621, at *9 (M.D. Pa. Oct. 25, 2011) (stating that an individual who had admitted to use of
controlled substances days prior to being arrested raised serious questions as to whether he qualified
under the ADA). Rather than dismiss this claim outright, the court shall, out of an abundance of
caution, afford Parizek an opportunity to amend this claim and in so doing assert the factual basis for
it in greater detail. The court shall next review Parizek’s claims against State's Attorneys Larson and
Frey and Assistant State's Attorney Viste.
3. 	Assistant State Attorney Leah Viste and States Attorneys Rozanna
Larson Joshua Frey
Parizek takes issue with how Larson, Frey, and Viste comported themselves during the course
of their criminal prosecutions of him. Specifically, he asserts:
•. 	Larson discriminated against him.
6
Case 1:22-cv-00052-CRH Document 11 Filed 04/05/22 Page 6 of 12

•. 	Larson, Frey and Viste “while working under the color of law did not make real effort
in all of my cases to make it fair.” (Doc. No. 6).
•. 	Larson and Viste violated court rules in State Case No. 51-2021-CR-00742.
•. 	Larson and Viste discriminated against him State Case Nos. 51-2021-CR-0025 and
51-2021-CR-00027.
•. 	Larson and Vieste have filed “several frivolous and malicious criminal cases against
plaintiff.” (Id.). “Leah Viste & Rozanna C. Larson had broken 3 plea deals off the
record and even charging me with the most outragest things 51-2021-CF-00025 51-
2021Cr-0027.” (Id.) (errors in original).
•. 	Larson “failed while working under color of law to treat the plaintiff equally.” (Id.).
•. 	Larson harbors a grudge against him, has ulterior motives for prosecuting him, has
malicious prosecuted him, has abused her authority, and has violated the Fourth
Amendment in her pursuit of him.
“It is well established in this circuit that ‘[a]n action for malicious prosecution by itself is not
punishable under § 1983 because it does not allege a constitutional injury.’” Pace v. City of Des
Moines, 201 F.3d 1050, 1055 (8th Cir. 2000) (quoting Sanders v. Sears, Roebuck & Co., 984 F.2d
972, 977 (8th Cir. 1993)); see also McNeil v. City of Omaha, No. 8:07CV143, 2008 WL 312715, at
*2 (D. Neb. Jan. 30, 2008) (“[M]alicious prosecution is a tort under state law and is not actionable
under 42 U.S.C. § 1983). 	“[M]alicious prosecution can form the basis of a § 1983 suit only if
defendant's conduct also infringes some provision of the Constitution or federal law.” Sanders, 984
F.2d at 97. And the assertion that defendants violated a state court order does not form the basis for
a claim of constitutional dimension. See Ebmeier v. Stump, 70 F.3d 1012, 1013 (8th Cir. 1995)
7
Case 1:22-cv-00052-CRH Document 11 Filed 04/05/22 Page 7 of 12

(“violations of state laws, state-agency regulations, and more particularly, state-court orders, do not
by themselves state a claim under 42 U.S.C. § 1983. Section 1983 guards and vindicates federal
rights alone.”).
Here, Parizek’s assertion that Larson violated the Fourth Amendment are conclusory. His
pleadings are otherwise devoid of any allegations that Frey’s or Viste’s conduct infringed upon any
federally protected right. 	Consequently, he has failed to assert cognizable constitutional claims
against Larson, Frey, or Viste.
Pleadings deficiencies aside, it is appears that Larson, Frey and Viste are immune from suit.
Actions taken as an advocate enjoy absolute immunity, see Imbler v. Pachtman, 424 U.S. 409, 431
(1976) (concluded that "a state prosecuting attorney who acted within the scope of his duties in
initiating and pursuing a criminal prosecution" had absolute immunity from under § 1983), while
actions taken as an investigator enjoy only qualified immunity, see Buckley v. Fitzsimmons, 509 U.S.
259, 273 (1993) (prosecutors "perform[ing] the investigative functions normally performed by a
detective or police officer" have qualified immunity).
Parizek’s claims against Larson, Frey, and Viste all pertain to or arise out of their prosecution
of him. Consequently, these claims appear to be foreclosed by absolute prosecutorial immunity. See
Kalina v. Fletcher 522 U.S. 118, 127 (1997) ("[I]n determining immunity, we examine the nature
of the function performed, not the identity of the actor who performed it." (internal quotes omitted));
Buckley, 509 U.S. at 273 ("[A]cts undertaken by a prosecutor in preparing for the initiation of
judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State,
are entitled to the protections of absolute immunity."); see also Shmueli v. City of New York, 424
F.3d 231, 237 (2d Cir. 2005) ("A prosecutor is . . . entitled to absolute immunity despite allegations
8
Case 1:22-cv-00052-CRH Document 11 Filed 04/05/22 Page 8 of 12

of his knowing use of perjured testimony and the deliberate withholding of exculpatory information.
Although such conduct would be reprehensible, it does not make the prosecutor amenable to a civil
suit for damages." (internal quotes omitted)).
4. 	Judge Michael Hurley
Parizek asserts the following with respect to Judge Hurley. First, he asserts that Judge Hurley
accepted his “false plea of guilt” in one or more of his state criminal cases. (Doc. No. 6). Second,
although not entirely clear, he appears to assert Judge Hurley discriminated against him and denied
him methadone treatment to the extent that he may have had a hand in having him transported from
the Ward County Jail to HACTC. Third, he appears to assert that the sentence imposed by Judge
Hurley in one of his criminal cases was excessive.
“Judges performing judicial functions enjoy absolute immunity from § 1983 liability.”
Robinson v. Freeze, 15 F.3d 107, 108 (8th Cir. 1994); see also Callahan v. Rendlen, 806 F.2d 795,
796 (8th Cir. 1986) (“[J]udicial immunity protects a judicial officer from civil suits seeking money
damages, including those suits initiated under 42 U.S.C. § 1983.”). As the Eighth Circuit has
explained, “[t]his absolute immunity from suit allows judges to fulfill their duties without concern
for their own fortunes, which helps to ensure that their duties will be performed impartially and
completely.” See Howell v. Hofbauer, 123 F. Supp. 2d 1178, 1180 (N.D. Iowa 2000) (quoting Duffy
v. Wolle, 123 F.3d 1026, 1034 (8th Cir. 1997)).
Judicial immunity is an immunity from suit, not just the ultimate assessment of damages. See
Mireles v. Waco, 502 U.S. 9, 10 (1981). It cannot be overcome by allegations of bad faith or malice.
Id.; see also Pierson v. Ray, 386 U.S. 547, 554 (1967) (“[I]mmunity applies even when the
judge is accused of acting maliciously or corruptly”); Harlow v. Fitzgerald, 457 U.S. 800, 815-19,
9
Case 1:22-cv-00052-CRH Document 11 Filed 04/05/22 Page 9 of 12

(1982) (opining that allegations of malice are insufficient to overcome absolute immunity).
There are only two circumstances under which judicial immunity may be overcome, neither
of which are apparent in the case at bar. First, a judge is not immune from liability for nonjudicial
actions, that is, actions not taken in the judge’s official capacity. See Mirales v. Waco, 502 U.S. 9,
9-12 (adding that an action is judicial in nature if “it is a function normally performed by a judge and
to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.”).
Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence
of all jurisdiction. See id.; see also Stump v. Sparkman, 435 U.S. 349, 356-57 (1998) (“A judge will
not be deprived of immunity because the action he took is in error, was done maliciously, or was in
excess of his authority; rather he will be subject to liability only when he has acted in ‘clear absence
of all jurisdiction.’”).
Judge Hurley’s actions as alleged by Parizek were clearly judicial in nature. See Malina v.
Gonzalez, 994 F.2d 1121, 1124 (5th Cir. 1993) (considering four factors when assessing whether an
action was “judicial in nature”). Parizek does not explicitly challenge the state court’s jurisdiction
in his the underlying criminal case. Consequently, Judge Hurley is cloaked in judicial immunity and
Parizek’s claims against him are subject to dismissal. The same can be said with respect to Judge
Mattson.
5. 	Judge Douglas Mattson
Parizek asserts that Judge Mattson discriminated against him and denied him a preliminary
hearing and by extension due process one of his criminal cases,“did not make real effort in all of [his]
cases to make it fair,” denied him bond in one of his cases, broke court rules, caused him emotional
and mental suffering, and “illegally filed a failure to appear on [him].” (Doc. No. 6).
Judge Hurley's actions as alleged by Parizek were judicial in nature. Parizek does not
10
Case 1:22-cv-00052-CRH Document 11 Filed 04/05/22 Page 10 of 12

explicitly challenge the state court's jurisdiction in the underlying criminal cases he references.
Consequently, Judge Mattson is immune from suit and the claims against him are subject to
dismissal.
B. 	Motion Seeking Leave to Amend
On April 4, 2022, Parizek filed what the court construes as a motion for leave to amend to
the pleadings. Therein Parizek appears to take issue with his present confinement and the denial of
good time to which he feels entitled. Specifically, he asserts;.
I ask the court to award the Plaintiff Scott Parizek an amount of $500.00 a day
since the 90th day of the sentence staring Dec/21/2021 @ 1450 delivered by K.
Kossan officer of Minot PD 439872 ending March/6/2022 A 90 day sentence comes
with 15 days of good time, Plaintiff entitled to due to good behavior during said
period. The amount being today $10,500.00 as of April 1st. On March/2/2022 in
Ward County Court room 8:30 AM Judge Tod Cresup made Plaintiff’s bond 8,000
post 10d with $250.00 already posted. The Plaintiff had the $550 on his bail account
at or about the date March/6/2022 just because Ward Count Jail made a discrimination
tactic not allowing Plaintiff to rightfully post the Bond until March/18/2022. The
Ward County issue should have no berrong on the Plaintiff Scott Parizek being
wrongfully jailed or imprisoned held without bond post said bench warrant read.
29-26-05, 24-26-10 Plaintiff was committed to Officer K. Kossan Dec-21-
2021 or index/exhibit (1) in case 1:22-cv-052 1 43980721 bage 4398072
related cases
1:18-cv-115
1:1-cv-01110
1:22-cv-052
The 8th addmendment and sentencing stipulation that would be putting
plaintiff’ physical health, and life endangered.
Violating no government enity may denied or discriminate treatment American
Disability Act under Mat also no inmate will be physically harmed.
The Bench Warrant stated 90 days Dec-21-2021 @ 1450
(Doc. No. 9) (errors in original).
It is well settled that a prisoner cannot use § 1983 action to challenge the fact or duration of
his present confinement. See Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). As a practical matter this
is Parizek is endeavoring to do here. He is seeking to be financially compensated for the time he
11
Case 1:22-cv-00052-CRH Document 11 Filed 04/05/22 Page 11 of 12

asserts he has been wrongly incarcerated. Consequently, he is indirectly challenging the validity of
his confinement. His Parizek’s motion is therefore denied.
III. 	CONCLUSION
Affording Parizek the opportunity to amend his claims against the attorneys who prosecuted
him and the judges who presided over these prosecutions would be an exercise in futility as the basis
for his claims against them arise out of the performance of their prosecutorial and judicial duties.
Affording him the opportunity to amend his claims as they may pertain to the State would also be
exercise in futility. 	Accordingly, Parizek’s claims against States’s Attorneys Larson and Frey,
Assistant States Attorney Viste, Judge Hurley, Judge Mattson, and the State of North Dakota are
DISMISSED with prejudice. Parizek shall have until May 7, 2022, to amend his ADA claim against
the Sheriffs Roed and Skager in their official and/or individual capacities. The court shall review
Parizek’s amended claim once it is filed pursuant to § 1915A. Failure to amend this claim may result
in its summary dismissal. Parizek’s motion to for leave to amend the pleadings to assert a challenge
to his present confinement (Doc. No. 9) is DENIED.
IT IS SO ORDERED.
Dated this 5th day of April, 2022.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
12
Case 1:22-cv-00052-CRH Document 11 Filed 04/05/22 Page 12 of 12