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Everett v. Marks

United States District Court, D. North Dakota

April 30, 2018

Tilmer Everett, Plaintiff,
Roger Marks, III, et. al., Defendants.


          Charles S. Miller, Jr., Magistrate Judge

         Before the court is plaintiff's motion for reconsideration of the court's order dismissing the above-entitled action in its entirety. For the reasons set forth below, the motion is denied.

         I. BACKGROUND

         The plaintiff, Tilmer Everett (“Everett”), is an inmate at the North Dakota State Penitentiary. He initiated the above entitled action pro se in July 2017 with the submission of a 48-page Complaint. Therein he asserted that two Bismarck Police officers, the Bismarck Police Chief, and a former Assistant State's Attorney (and current state district court judge) violated his civil rights during the course of two interrelated criminal investigations and a subsequent prosecution that culminated in his conviction in state district court of the offense gross sexual imposition and that current Assistant State's Attorneys were perpetuating these violations insofar as they had opposed his requests for post-conviction relief. Specifically, he asserted that the police officers: falsified their investigation reports; withheld and/or tampered with evidence; tampered, intimidated and/or misled witnesses; and perjured themselves at trial. He further asserted that the State's Attorney's office: unlawfully "bounced" the state district court judge initially assigned to his criminal case; violated the state district court's discovery orders; suborned perjury; obstructed justice; conspired with local law enforcement to frame him; and "filed a[n] injunctive motion against [him] with the district court." (Doc. No. 2).

         The court screened Everett's Complaint as mandated by 28 U.S.C. § 1915A. Concluding that the State's Attorney and his assistants (former and present) were immune from suit, that the police officers were cloaked in immunity with respect to their claimed perjury, and that the remainder of plaintiff's claims were Heck-barred, the court dismissed Everett's Complaint in its entirety.

         Everett filed a motion for reconsideration on November 1, 2017, asserting that the court misconstrued his Complaint and mischaracterized his prayer for relief.[1] In so doing, he insisted that he was simply asserting a claim for false arrest in connection with a reported sexual assault for which he was never charged and that his references to and discussion of the events culminating in his conviction for gross sexual imposition were merely contextual. Specifically, he averred:

Notice: I am not attacking my conviction under § 1983 action, but I am instead challenging Case No. 06-9417 the false arrest(s) as which violated my civil rights in the very beginning on or around May 30th 2006. I filed a civil rights § 1983 action on “Case No. 06-9417”with the court for the sum of $400.00 charging, fee to prove that I was falsely and illegally arrested by the Bismarck Police Department and the Burleigh County States Attorneys office, to include collusion of a cover-up towards Case No. 06-9417 and obstruction of justice from 2006-2017, referencing Trevor Goodiron's criminal act committed against K.W.T. the victim. I am only attacking my false arrest(s)!
2. Whereas in conducting the screening under 28 U.S.C. § 1915A, by the court to dismiss October 26, 2017. I as plaintiff do believe this court inadequately addressed and imporperly failed to entertain just case No. 06-9417 false arrest(s). Being that a § 1983 civil rights action can be filed in federal court to challenge, directly or indirectly, a valid claim against 1. Bismarck Police and 2. Burleigh County prosecutors with a argument, plaintiff's arrest within Case No. 06-9417 was illegal in 2006. Thus legally disqualifying police or prosecutors any immunity from civil liability, which led to the plaintiff's unjust arrest as which has been covered-up from 2006-2017 by fraud.
3. District Court ND, Western Division in page 2 order October 26, 2017 I as plaintiff did not say in pray for relief, Everett demands . . . .
• the arrest and prosecution of the individual who he believes committed the offense of which he was wrongfully convicted;
• the appointment special counsel to investigate the Bismarck Police Department along with the State's Attorney and his assistants;
"Why" would this honorable court intentionally misconstrue the plaintiffs' 1983 request to Case No. 06-9417, as in Complaintant page 45? A. Prayer for relief from 42 U.S.C. § 1983 violations.
(1) Plaintiff demand judgment that Trevor Goodiron be arrested and dealt with accordingly for Case No. 06-9417 in pursuant to N.D.C.C. 11-16-06 Appointment for Special Counsel to Prosecute Sexual Asssault Complaint May 30th 2006, " who Bismarck police and Burleigh County prosecutors conspired to cover-up." Plaintiff did motion the district court on ...

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