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Walker v. Bertsch

United States District Court, D. North Dakota

June 21, 2018

Tyson R. Walker, Plaintiff,
v.
Leann Bertsch, et. al., Defendants.

          ORDER DENYING MOTION TO AMEND AND DISMISSING CASE WITHOUT PREJUDICE

          Charles S. Miller, Jr., Magistrate Judge.

         Tyson R. Walker (“Walker”) is an inmate at the James River Correctional Center. He initiated the above-entitled action pro se and in forma pauperis. The court reviewed his Complaint as mandated by 28 U.S.C. § 1915A and, finding it devoid of any cognizable constitutional claims, ordered him to show cause why this case should not be dismissed for failure to state a claim or, alternatively, to file an Amended Complaint. Walker complied with the court's directive and filed an Amended Complaint. He subsequently filed a motion for leave to file a Second Amended Complaint. For the reasons set forth below, Walker's motion is denied and the above-entitled action is dismissed without prejudice.

         I. BACKGROUND

         Walker filed an Amended Complaint on January 11, 2018, asserting:

Even as an inmate I am guaranteed a right to due process. The NDDOC offers a grievance procedure to that end. I am claiming that my civil right to an impartial due process policy and procedure have been denied. Once the subject of the grievance -UM Friez - decided he would hear the grievance Step One, I was denied due process, regardless of the outcome. In the ensuing weeks and months, my loss of housing, job, good time, money, property and personal items have been forfeit due to this. Had the proper impartial procedure been used, we would not be here, but we cannot undo the damage. These are the DOC guidelines, not mine. it is the DOC who claims they have a due process policy that allows them to accept Federal Funds and be compliant with the American Corrections Association. The director goes on to claim that her policy doesn't say that the subject cannot respond to the grievance. That is correct. However, and this is important, the subject has the opportunity to hear the informal resolution state, not the step one or step two stage. UM Fode, UM Sullivan, NDSP Warden and by the Director denying my appeal, all bear responsibility for their own failings in this. Seems concerted.
As further proof that this is systemic and not isolated, I am trying to recover prescription eye wear the DOC disposed of. I have to use their grievance procedure. So I filed the informal resolution. So that was in October. The DOC has decided that the issue is moot. So instead of just denying the grievance, they sit on it, and I have no recourse, as their policy states I need a response to continue. Once again my civil right to due process is thwarted.
Somehow the court has been misled on the other facts. I failed somehow in the conveyance. In the claim of cover-up, I am expressing my theory on why I no longer have any property, hygiene, legal papers and/or personal effects. The content of what was in the notebook was for background only. I do not represent the former female employees nor is this a vehicle for that issue. However, the odds of this being a coincidence are zero. The DOC does not offer their version. The punishment seems severe for the crime for the suicides that have been on their watch, it is another example of the toxicity here. I'd like to point out that since this lawsuit has been filed, another suicide has taken place; [a fellow inmate has] strangled himself. Preventable, all of them. How the DOC spins staff not doing their rounds is going to be interesting. Perhaps this shocks the conscience of the court and John Q. Public that something is wrong at the NDDOC.
My due process is only a part of the disfunction, and this is not even the first issue with me, but as already been stated, that paperwork has been destroyed. I pray that the Federal Court is going to be the “Adult in the Room” and not accept business as usual for sexual harassment, no accountability, no credible due process and not accepted suicide as just another day @ the office.
As for my “fraud” claim, the DOC has gone to a lot of trouble to tag me as having a “SMI.” SO now I am subjected to hardship and/or cruel and unusual punishment against my civil rights to not be. Since it seems general population is not in the cards here, I pray the court sees fit to rule a return to A.S.

(Doc. No. 11) (errors in original). Attached to the Amended Complaint is correspondence from Director Bertsch to Walker, dated May 4, 2017, that reads as follows:

You filed a step one grievance on March 13, 2016, regarding Unit Manager Friez answering a step one grievance. In the informal resolution and step one response, it was explained that DOCR policy does not state any employee who is the subject of the grievance cannot respond to the grievance. You filed a step two grievance on march 22, 2017. The grievance officer denied your grievance, again noting that the DOCR Grievance Procedure policy states, “the informal resolution responder may also be a responder to the formal grievance (step 1).” Warden Braun agreed wit the findings and recommendation of the grievance officer and denied the director of the Department of Corrections and Rehabilitation.
The grievances and appeal were reviewed. This appeal response is to the step one grievance issue. As noted to the appeal form, you are appealing the decision to the original complaint, that being United Manager Friez responding to a grievance. You were correctly informed in the responses to the step one and step two grievances that DOCR policy does not prohibit the subject of a grievance from responding to a grievance. Your appeal is denied.

(Doc. No. 11-1).

         On May 14, 2018, Walker filed a motion for leave to amend hi Amended Complaint to include a claim pursuant to the qui ...


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