Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Vann v. Smith

United States District Court, Eighth Circuit

October 18, 2013

Jerome Eugene Vann, Plaintiff,
v.
Michele Smith, John Does, Mary Perez, Regina Stepney, Mary McCombs, Kim Ebeling, Terry Jean Carlson, and Tom Roy, Defendants.

Jerome Eugene Vann, Bayport, Minnesota, pro se.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, District Judge.

I. INTRODUCTION

This matter is before the Court for consideration of Plaintiff's Objections [Doc. No. 6] to United States Magistrate Judge Janie S. Mayeron's August 16, 2013, Report and Recommendation ("R&R") [Doc. No. 5]. The Magistrate Judge recommended that:

(1) Plaintiff's application for leave to proceed in forma pauperis be denied; (2) this action be summarily dismissed under 28 U.S.C § 1915A(b); (3) Plaintiff be required to pay the unpaid balance of the Court filing fee ($310.50); and (4) the dismissal of this action be counted as a "strike" against plaintiff under 28 U.S.C. § 1915(g). (Aug. 16, 2013, Report and Recommendation at 14-15 [Doc. No. 5].) For the reasons that follow, the Court overrules Plaintiff's Objections and adopts the R&R in its entirety.

II. BACKGROUND

As the Magistrate Judge's R&R documents the factual and procedural background of this case, the Court incorporates it by reference. Plaintiff is an inmate at the Minnesota Correctional Facility in Stillwater, Minnesota ("MCF-STW"). He is serving a 180-month prison sentence imposed by Ramsey County District Court, after a jury found him guilty of criminal sexual conduct for sexually assaulting his adult daughter. State v. Vann, No. A08-1000 , 2009 WL 2431978 (Minn.Ct.App. Aug. 11, 2009). Plaintiff's conviction was affirmed on direct appeal, but the Minnesota Court of Appeals remanded the case for re-sentencing. On remand, the trial court imposed the same 180-month sentence. Plaintiff filed a second appeal, and the Minnesota Court of Appeals affirmed the new sentence. State v. Vann, No. A09-1964, 2010 WL 3306898 (Minn.Ct.App. Aug. 24, 2010) ("Vann II"). Plaintiff's attorney filed a petition for further review, which the Minnesota Supreme Court denied on November 16, 2010.

Plaintiff's Complaint alleges that after the Minnesota Court of Appeals affirmed his new sentence in Vann II, he tried to file a pro se supplemental petition for review in the Minnesota Supreme Court. Plaintiff purportedly gave his supplemental petition to someone affiliated with the prisoner mail system at MCF-STW, where plaintiff was confined when Vann II was decided. Plaintiff purportedly tried to send his supplemental petition to his appellate counsel in early September 2010 and assumed that the attorney filed it with the Minnesota Supreme Court.

In June 2011, Plaintiff allegedly received notice that he was being charged $1.22 for sending a piece of mail to his attorney. This notice caused Plaintiff to believe that his supplemental petition for review had only recently been sent to his attorney. Plaintiff then pursued a series of administrative grievances, accusing unnamed prison officials of not mailing his supplemental petition to his attorney promptly.

Plaintiff is now attempting to sue seven employees of the Minnesota Department of Corrections ("MNDOC"): (1) Michele Smith, the Warden at MCF-STW; (2) Mary McCombs, an associate warden; (3) Mary Perez, a mailroom supervisor; (4) Regina Stepney, a program director; (5) Kim Eberling, a grievance coordinator; (6) Jean Terry Carlson, an "appeal response person"; (7) Tom Roy, the Commissioner of Corrections. (Compl. at 4-5 [Doc. No. 1].) These defendants allegedly deprived Plaintiff of his constitutional right of access to the courts. Plaintiff claims that he "suffered actual injury" because his supplemental petition for review was not timely mailed to his attorney, and thus he did not have his "case heard" by the Minnesota Supreme Court. (Id. at 7.) Plaintiff seeks a judgment against Defendants for $500, 000. (Id. at 11.) He also seeks a judgment that would "fire the staff responsible for this unlawful act" and Michele Smith. (Id.)

On August 16, 2013, the Magistrate Judge concluded that Plaintiff's Complaint fails to state a cause of action on which relief can be granted, and therefore recommended that the case be summarily dismissed under 28 U.S.C. § 1915A(b). (Aug. 16, 2013, Report and Recommendation at 13 [Doc. No. 5].) The Magistrate Judge also recommended that Plaintiff's application for leave to proceed in forma pauperis be denied, and that Plaintiff shall remain liable for the unpaid balance of the $350 statutory filing fee. (Id.) The Magistrate Judge further recommended that the dismissal of this action be counted as a "strike" against Plaintiff under 28 U.S.C. § 1915(g).

On August 30, 2013, Plaintiff objected to the Magistrate Judge's Report and Recommendation. (Pet'r's Written Objection to the Report and Recommendation [Doc. No. 6].) Plaintiff argues that the Magistrate Judge misunderstood the timeline of events and the "true harm entailed." (Id. at 1.) In his objections, Petitioner sets forth "the correct set of events, " which appears to clarify and elaborate on the Complaint's allegations. (Id. at 1-2, 4-6.) Plaintiff also seeks additional relief, including: (1) "fair and just compensation for the loss of life, liberty, and the shown denial of my due process rights to the access to the courts"; (2) that the "DOC policy" be changed to "accurately log all outgoing legal mail"; (3) to subject the "responsible parties" to reprimand and fine for "interfe[sic]ring with U.S. Mail"; and (4) allowing Plaintiff "to show how his civil rights were violated with a triple upward-departure." (Id. at 3-4.)

III. DISCUSSION

A. Standard of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.