Jogaak v. Duffy

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JOGAAK D. JOGAAK, 4:22-CV-0409I-LLP
Plaintiff,
vs.
19ISA SCREENING ORDER FOR
DISMISSAL
VERONICA DUFFY,Magistrate Judge, in her
official capacity.
Defendant.
Plaintiff, Jogaak D. Jogaak, an inmate at the South Dakota State Penitentiaiy, filed a pro
se lawsuit under 28 § U.S.C. § 1331 and Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971).^ Doc. 1. He filed a motion for leave to proceed in forma pauperis and provided
a prisoner trust account report. Docs. 3, 5. Jogaak has also filed a motion for appointment of
counsel, a motion for subpoena, a motion for pretrial conference, and a motion to consolidate
cases. Docs. 2, 14, 16, 17. This Court granted Jogaak's motion to proceed in forma pauperis on
July 18, 2022, and required him to pay an initial partial filing fee of $10.01. Doc. 9. Jogaak has
timely paid his initial filing fee. This Court will now screen Jogaak's complaint under 28 U.S.C.
§ I9I5A.
FACTUAL BACKGROUND
'Jogaak initially filed his lawsuit under 42 U.S.C. § 1983. Doc. 1 at I. He has since filed a
'TSlotice of Harmless Error and Motion to Proceed Document 1 as a 28 U.S.C. § 1331 Claim" in
which he states that he intended to file this lawsuit "pursuant to: 28 U.S.C. § 1331 Federal
Question against federal officials." Doc. 21 at I. This Court grants Jogaak's motion and will treat
Jogaak's lawsuit as a Bivens claim.
1
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Jogaak claims that Magistrate Judge Duffy denied him "the equal right to the protection
ofthe laws ofthe United States Constitution by violating 28 U.S.C. § 2243" in violation ofthe
Fourteenth Amendment.^ Doc. 1 at 4. He claims that she denied him "the right to protection from
a cruel, and unusual punishment" in violation ofthe Eighth Amendment. Id. at 5. He claims that
she breached her legal duty of care and committed legal abuse. Id. at 4-5. Jogaak alleges that this
has caused him mental anguish, anxiety, depression, and stress. Id.
In a subsequent filing, Jogaak alleges that Magistrate Judge Duffy "did commit treason
by breaching the legal duty of care, by not scheduleing [sic] a hearing within due time in
accordance with 28 U.S.C.S. § 2243, due to dilatory practice[.]" Doc.4 at 1. He further accuses
her of issuing a report and recommendation to dismiss his case with prejudice and claims that
this demonstrates "legal malpractice and gaming the system." Id. Jogaak claims that he has been
wrongfully convicted and that his confinement is unlawful. Doc. 12 at 2. He seeks money
damages for the alleged violations of his rights. See Doc. 10 at 2,4; Doc. 18 at 12. He also asks
that Magistrate Judge Duffy "be dealt with according to law, and that the court appoint a judicial
investigative committee." Doc. 1 at 7.
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)(citation omitted);
Bediako v. Stein Mart, Inc., 354 F.3d 835, 839(8th Cir. 2004)(citation omitted). Even with this
^ The Court takes judicial notice of Jogaak's prior petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. See Jogaak v. State ofSouth Dakota, 4:21-CV-04023-KES. In that case.
Magistrate Judge Duffy recommended that Jogaak's habeas petition be dismissed with prejudice
as time barred. Jogaak, 4:21-04023-KES, Doc. 15 at 5-6.
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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
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[.]" BellAtl. 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,
663-64(8th Cir. 1985). 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[.]" 550 U.S. at 555 (internal citation omitted); see also
Abdullah v. Minnesota, 261 F. App'x 926, 927(8th Cir. 2008)(per curiam)(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)). Under 28 U.S.C. § 1915A,the court must screen prisoner complaints and dismiss them if
they "(1)[are] frivolous, malicious, or fail[] to state a claim upon which relief may be granted; or
(2)seek[] monetary relieffrom a defendant who is immune from such relief." 28 U.S.C. §
1915A(b). The court will now assess each individual claim under 28 U.S.C. § 1915A.
DISCUSSION
1. Claims Against Magistrate Judge Dufiy
Jogaak claims that Magistrate Judge Duffy violated his Eighth and Fourteenth
Amendment rights when she recommended that his habeas petition be dismissed without a
hearing. See Doc. 1 at 4-5; Doc. 19 at 3; see also Jogaak, 4:21-04023-KES, Doc. 15 at 5-6.
Judges are generally immune from suit if the judge had jurisdiction over the party. See Stump v.
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Sparkman,435 U.S. 349, 356(1978)("[T]he necessary inquiry in determining whether a
defendantjudge is immune from suit is whether at the time he took the challenged action he had
jurisdiction over the subject matter before him.")."A judge will not be deprived ofimmunity
because the action he took was in error, wa.s done maliciously, or was in excess of his authority;
rather, he will be subject to liability only when he has acted in the 'clear absence of all
jurisdiction.'"Id. at 356-57(quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)). Judges are
immune from suit with two narrow exceptions. See Schottel v. Young,687 F.3d 370, 373 (8th
Cir. 2012). "First, a judge is not immune from liability for nonjudicial actions, i.e., actions not
taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial
in nature, taken in the complete absence of all jurisdiction." Id. (quoting Mireles v. Waco,502
U.S. 9, 11-12(1991)).
These exceptions do not apply here. Magistrate Judge Duffy's report and
recommendation was issued in her judicial capacity, and Jogaak has made no showing that
Magistrate Judge Duffy lacked jurisdiction over his petition. See Doc. 1 at 4-5. Thus, Jogaak's
claims again Magistrate Judge Duffy are dismissed with prejudice under 28 U.S.C. §§
1915(e)(2)(B)(iii)and 1915A(b)(2).
II. Strike Under 28 U.S.C.§ 1915(g)
The court finds that Jogaak's complaint fails to state a claim upon which relief may be
granted. Section 1915(g) states as follows:
In no event shall a prisoner bring a civil action or appeal ajudgment in a civil action
or proceeding under this section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an action or appeal in a court
ofthe United States that was dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
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28 U.S.C. § 1915(g). The Eighth Circuit has explained that "[d]ismissals based on immunity are
not among the types of dismissals listed as strikes in [§] 1915(g)[.]" Castillo-Alvarez v. Krukow,
768 F.3d 1219, 1220 (8th Cir. 2014)(per curiam). Jogaak's complaint is dismissed based on
Magistrate Judge Duffy's judicial immunity. Thus, this dismissal does not constitute a strike.
Accordingly, it is ORDERED:
1. That Jogaak's complaint. Doc. 1, is dismissed with prejudice under 28 U.S.C. §§
1915(e)(2)(B)(iii) and 1915A(b)(2).
2. That Jogaak's motion to proceed document 1 as a 28 U.S.C. § 1331 claim. Doc. 21, is
granted
3. That Jogaak's motion for appointment of counsel. Doc. 2, is denied as moot.
4. That Jogaak's motion for subpoena. Doc. 14, is denied as moot.
5. That Jogaak's motion for pretrial conference. Doc. 16, is denied as moot.
6. That Jogaak's motion to consolidate cases. Doc. 17, is denied as moot.
DATED November^V ,2022.
ATTEST:
CHEW W.THE
BY THE COURT:
lu<^>—
iwrence L. Piersol
United States District Judge
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