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Wetzel v. Herauf

February 9, 2010

JOEL H. WETZEL, PLAINTIFF,
v.
WILLIAM A. HERAUF, THOMAS HENNING, JAMES HOPE, KEVIN MCCABE, CHUCK RUMMEL, CLARENCE TUHY, DAVID WALLACE, TERRY OESTERICH, S. A. HELFRICH, DANIEL BROWN, BRIAN KOSKOVICH, JEREMY MOSER, COREY LEE, JOE CIANNI, CRISS COATS, DAVID WILKE, AND NICK GATES, DEFENDANTS.



The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court

ORDER ADOPTING REPORT AND RECOMMENDATION

On August 27, 2009, the plaintiff, Joel Wetzel, filed a pro se complaint. See Docket No. 5. Pursuant to 28 U.S.C. § 1915A, Magistrate Judge Charles S. Miller, Jr. conducted a review of the record and relevant case law and submitted a Report and Recommendation on January 4, 2010. See Docket No. 6. Judge Miller recommended the following: (1) that Wetzel be permitted to proceed with a civil rights claim for damages under 42 U.S.C. § 1983 premised upon an unconstitutional use of excessive force, but only as to Defendants Brown, Koskovich, Moser, and Lee, and only against them in their individual capacities; (2) that all of the other claims and defendants be dismissed without prejudice; (3) that the action be stayed pending completion of the state criminal proceedings referenced in the complaint unless Wetzel shows cause why the action should not be stayed; (4) that Wetzel provide notice to the Court, in writing, of the completion of the state criminal prosecution not later than sixty days following the entry of a final, non-appealable judgment, and failure to comply may result in the complaint being dismissed without prejudice; and (5) that during the pendency of the stay, the complaint need not be served upon Defendants Brown, Koskovich, Moser, and Lee, and that the complaint not be dismissed pursuant to Fed. R. Civ. P. 4(m), given that good cause exists for not serving the defendants until the Court lifts the stay. Wetzel was given thirty (30) days to file an objection to the Report and Recommendation.

On January 26, 2010, Wetzel filed an "Answer: to the Report, But not to the Recommedations [sic]" and notice of voluntary dismissal of Defendant William A. Herauf. See Docket Nos. 7 and 8. On February 3, 2010, Wetzel filed a "Response and Objections to Report and Recommendations." See Docket No. 9. Wetzel's action relates to his state court charges of burglary and reckless endangerment. In his "Response and Objections to Report and Recommendations," Wetzel states, in part:

A. At this time the plaintiff would like to make these changes to the suit, before it is filed

(1.) Defendant no. 1. will be ometted from the law suit. The Hons William A. Herauf is no longer a Defendant.

A.(2) The Plaintiff withdraws his wish; not to sue the city of Dickinson, N.D.. Before this is filed..(3.) The Plaintiff adds the City of Dickinson, N.D. in its official Responsibility for the Police Dept of Dickinson, N.D.; and for its officers to this Civil Rights Law Suit Violations - 4th & 14th Amend

The City is responsible for its Police Officers conduct in the shooting of Joel Henry Wetzel on 7-8-2008. The City failed to train their officers in the Art of Integrity to uphold the Laws of the N.D., and U.S. Constitutions. Their Police Officers displayed that, on the night, they tryed to murder the Plaintiff by shooting him 17 times in Ambush; with out a word!...

A.(5) Claims: Your Report states the Plaintiff has a problem with stating claims, and that he has this Fantastic Delousion.... "There is no Fantastic Delusion!"...

When Court officials, and Police Officers chose to step over the line, into the world of crime, and criminals. They also need to be punished, they no longer are entitled to the Total Immunity afforded them....

...

A(6) Claims, Federal Action should go ahead of State. The court allegizes that when it comes to malicious prosecution claims can be pursued on a charge-by-charge basis, and a successful malicious prosecution claim does not necessarily have to be based on a showing that the plaintiff achieved a favorable termination of all criminal charges against him, Miller v. Spiers #07-2134, 2009 U.S. App. Lexis 17077 (unpub 10th Cir.)

1. Allegations of a massive conspiracy. The Plaintiff does not agree that his claims of a conspiracy are only in his mind, and that his claims should be dissmissed because of a failure to state a cognizable claim. The evidence supports the Plaintiff, and as a whole the claims are stated!...

3. Equitable claims for relief. Fantastic? (Not every day!)

(1.) This case is by far one of the most unusual situations we will see in all of our life time, I'm 61 yr's old, I only heard of a couple of cases that might be as Bizarre as this one is, I know police don't go around, and try to murder a suspect; and then their supervisors, and prosecutors cover-up for them, and then try to put in a Mental Hospital to shut him up, when that failed, they have tryed to convict the ...


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