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Moore v. Bertsch

July 27, 2010

ANTHONY MOORE, PLAINTIFF,
v.
LEANN K. BERTSCH, CHARLES MILLER, DANIEL HOVLAND, KAREN KLEIN, RALPH ERICKSON, PATRICK COMNY, ALICE SENECHAL, CHARLES B. KORNMANN, JAMES B. LOKEN, FRANK MAGILL, C. ARLEN BEAM, DAVID HANSEN, PASCO M. BOWMAN, ROGER L. WOLLMAN, MORRIS S. ARNOLD, DIANA E. MURPHY, KERMIT BYE, WILLIAM RILEY, MICHAEL MELLOY, LAVENSKI SMITH, DONALD LAY, GERALD HEANY, MYRON BRIGHT, DONALD RUSS, RICHARD ARNOLD, JOHN GIBSON, AND GEORGE FAGG, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge

ORDER DISMISSING COMPLAINT

INTRODUCTION

On January 27, 2010, plaintiff Anthony Moore, appearing pro se, filed a complaint pursuant to 42 U.S.C. § 1983 claiming a violation of his civil rights. (Docket 1). Plaintiff is a prisoner at the North Dakota State Prison in Bismarck, North Dakota. Id. at p. 3. The printed caption of the complaint was "In the United States District Court, District of North Dakota." Id. at p. 1. The words "North Dakota" were lined out and Mr. Moore inserted "Missouri" into the caption. Id. The complaint was filed in the United States District Court for the Southern District of Illinois, East St. Louis Office. Id.

Mr. Moore also filed an application to proceed in forma pauperis. (Docket 2). The same strikeover of "North Dakota" and the insertion of "Missouri" appears on this application. Id.

On June 23, 2010, Chief Judge David R. Herndon of the United States District Court for the Southern District of Illinois filed a memorandum and order in this action. (Docket 3). Chief Judge Herndon found that (1) "plaintiff was incarcerated in the North Dakota State Prison, located in Burleigh County, North Dakota"; (2) "Burleigh County is situated in the federal judicial district for the District of North Dakota, Southwestern Division"; and (3) the "[d]efendants are located there and all the alleged events took place there." Id. Accordingly, Chief Judge Herndon transferred this action "to the United States District Court for the District of North Dakota, Southwestern Division, for a determination as to whether Plaintiff should be granted leave to proceed in forma pauperis, 28 U.S.C. § 1915, and such further proceedings as that court may deem appropriate." Id.

On July 1, 2010, the case was transferred to the United States District Court for the District of North Dakota, Southwestern Division. (Docket 4). That same day Chief Judge Ralph R. Erickson reassigned this case to the undersigned federal district judge for all further proceedings. (Docket 5). Mr. Moore subsequently filed a motion for preliminary injunction. (Docket 6).

Mr. Moore's pleadings allege that defendant Leann K. Bertsch, as Clerk of the North Dakota Pardon Advisory Board, refused to process his pardon application. Mr. Moore sought clemency from the Governor of North Dakota to reduce his 20-year sentence for gross sexual imposition. Ms. Bertsch advised Mr. Moore by letter dated October 14, 2009, that the Pardon Advisory Board denied Mr. Moore parole consideration due to the seriousness of his offense.

In addition to Ms. Bertsch, Mr. Moore named as defendants in their individual and official capacities all the federal district judges and magistrate judges for the District of North Dakota, South Dakota District Judge Charles B. Kornmann, and all judges serving on the United States Court of Appeals for the Eighth Circuit. The complaint names a total of 27 defendants. Mr. Moore claims the federal judicial officers were complicit in the denial of his pardon application.

Mr. Moore seeks a court order requiring Ms. Bertsch to process immediately his application for a North Dakota pardon. Mr. Moore also demands that none of the defendant judicial officers participate in this case. He asks that the case be transferred to the "United States Court of Appeals and the United States District Court for the District of Columbia in Washington, D.C." (Docket 1, page 6).

ANALYSIS

The Prison Litigation Reform Act, 28 U.S.C. § 1915, establishes the procedure by which a prisoner may access the court, pursuant to 42 U.S.C. § 1983, claiming a violation of civil rights. Section 1915(e)(2) states that:

... the court shall dismiss the case at any time if the court determines that--

(A) the allegation of poverty is ...


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