Waliezer v. Howell et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
FILED
NOV IL 2021
SHANE D. WALIEZER, 1:21-CV-01027-CBK
Plaintiff,
vs.
BRAD HOWELL,Sheriff Codington
County, professionally and individually;
OFFICER JOHN DOE #1, Deputy Sheriff
Codington County, professionally and
individually; and OFFICER JOHN DOE #2,
Deputy Sheriff Codington County,
professionally and individually;
MEMORANDUM OPINION AND
ORDER
Defendants.
Plaintiff filed a pro se complaint under 42 U.S.C. § 1983. Plaintiff alleges that the
John Doe defendants violated his Constitutional rights as a pretrial detainee when they
transported him from Washington State to South Dakota on an extradition warrant.
Plaintiff claims the defendants drove erratically and in excess of the speed limits.
Plaintiff further alleges that John Doe #1 exposed himself to plaintiff on two separate
occasions when defendant urinated on the side ofthe Interstate highway.
Plaintiff filed an application to proceed informa pauperis without the prepayment
offees. I found that plaintiff was subject to the three strikes provision ofthe Prison
Litigation Reform Act, U.S.C. § 1915(g) and must pay the filing fee. Plaintiff filed a
motion to amend his complaint, a motion to vacate the order denying his application to
proceed informa pauperis and, thereafter, a notice of interlocutory appeal, along with a
motion to proceed on appeal informa pauperis without the prepayment of the appellate
filing fee. His notice of appeal filed before the disposition ofthe motion to vacate had no
effect on this Court's jurisdiction to rule upon the motion to vacate. Fed. R. Appl. P.
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4(a)(4) and Griggs v. Provident Consumer Disc. Co.,459 U.S. 56, 61, 103 S. Ct. 400,
403, 74 L. Ed. 2d 225 (1982). The order appealed from has been vacated and plaintiffs
application to proceed informa pauperis has been granted. The notice of appeal became
effective upon this court's ruling on plaintiffs motion to vacate, Avila v. Sullivan, 46
F.3d 1150(10th Cir. 1995), but the appeal is essentially moot since plaintiff was granted
the relief requested.
Plaintiff moved to amend his complaint to add an allegation that he is in imminent
danger, a requirement for allowing him to proceed informa pauperis notwithstanding the
three-strikes bar of28 U.S.C .§ 1915(g). The order allowing plaintiff to proceed informa
pauperis renders his motion to amend his complaint moot.
The Prison Litigation Reform Act requires the Court to screen prisoner complaints
prior to service of process being issued and to 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 discernable cognizable claim. Solomon v. Petrav, 795 F.3d 111, 787
(8th Cir. 2015).
I have conducted an initial review as required by § 1915A. Plaintiffs complaint
must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) because plaintiff has failed to
state a claim upon which relief can be granted. The interlocutory appeal, while pending,
does not deprive the district court ofjurisdiction over aspects ofthe case not involved in
the appeal. Chambers v. Pennvcook,641 F.3d 898,904(8th Cir. 2011). The appeal
concerns the application to proceed informa paueris only.
Plaintiff alleges that two Codington County deputy sheriffs recklessly endangered
plaintiffs life while transporting plaintiff from the State of Washington to the State of
South Dakota. Plaintiff also alleges that he was subject to indecent exposure.
"To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution or laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law." West v. Atkins.
2
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487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55, 101 L. Ed. 2d 40(1988). Plaintiff has failed
to allege that defendants' actions violated any federal Constitutional or statutory rights.
In fact, at most, plaintiff alleges in his claim for relief that defendants violated law
enforcement policies which they should be ordered to review. Plaintiff has failed to state
a claim under § 1983.
Now,therefore,
IT IS ORDERED:
7. Plaintiffs motion. Doc. 9, to amend the complaint is denied as moot.
8. Plaintiffs complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
9. Plaintiffs motion. Doc. 4, for the appointment of counsel is denied as moot.
DATED thi&^^J^ay ofNovember, 2021.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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