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Vogel v. MN State Public Defender - Document No. 4

Vogel v. MN State Public Defender - Document No. 4

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Published by Justia.com
REPORT AND RECOMMENDATION 1. That the Plaintiff's Complaint [ 1] be summarily dismissed pursuant to Title 28 U.S.C. 1915A(b)(1). 2. That the Plaintiff's Application to Proceed Without Prepayment of Fees, 3 be denied, as moot.3. That the P laintiff's Motion For Appointment Of Counsel [ 2], be denied, as moot. 4. That the Plaintiff be relieved of paying the filing fee that would otherwise be due from him. 5. That, irrespective of summary dismissal, the action not be counted as a "strike" for purposes of Title 28 U.S.C. 1915(g). Objections to R&R due by 1/30/2006. Signed by Chief Magistrate Judge Raymond L Erickson on 1/13/06. (JLB) 0:2006cv00166 Minnesota District Court
REPORT AND RECOMMENDATION 1. That the Plaintiff's Complaint [ 1] be summarily dismissed pursuant to Title 28 U.S.C. 1915A(b)(1). 2. That the Plaintiff's Application to Proceed Without Prepayment of Fees, 3 be denied, as moot.3. That the P laintiff's Motion For Appointment Of Counsel [ 2], be denied, as moot. 4. That the Plaintiff be relieved of paying the filing fee that would otherwise be due from him. 5. That, irrespective of summary dismissal, the action not be counted as a "strike" for purposes of Title 28 U.S.C. 1915(g). Objections to R&R due by 1/30/2006. Signed by Chief Magistrate Judge Raymond L Erickson on 1/13/06. (JLB) 0:2006cv00166 Minnesota District Court

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Published by: Justia.com on Apr 29, 2008
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10/14/2013

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
* * * * * * * * * * * * * * * * * * *
James Mark Vogel,
Plaintiff,
vs.
REPORT AND RECOMMENDATION

MN State Public Defender
Andrew K. Berger, Asst. P.D.
State of MN Becker County,

Defendants.
Civ. No. 06-166 (MJD/RLE)
* * * * * * * * * * * * * * * * * * *
I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. \u00a7636(b)(1)(B), upon the Plaintiff\u2019s \u201cComplaint for violation of Civil rights under 42 U.S.C. 1983,\u201d see, Docket No. 1, his application for leave to proceed in forma pauperis (\u201cIFP\u201d), see, Docket No. 3, and his Motion to Appoint Counsel. See, Docket No. 2. For reasons which follow, we recommend that the Plaintiff\u2019s Complaint be summarily dismissed pursuant to Section 1915A(b), and that the

Case 0:06-cv-00166-MJD-RLE Document 4 Filed 01/13/2006 Page 1 of 12\ue000
Vogel v. MN State Public Defender
Doc. 4
Dockets.Justia.com
1The Plaintiff did not tender the required filing fee with his Complaint, but

instead, filed an Application seeking leave to proceed in forma pauperis, (\u201cIFP\u201d). See, Docket No. 3. It appears from the Plaintiff\u2019s IFP Application that he may be unable to pay even the initial partial filing fee that prisoners are required to remit pursuant to Title 28 U.S.C. \u00a71915(b)(1). Thus, we find, for present purposes, that the Plaintiff has \u201cno assets and no means by which to pay the initial partial filing fee,\u201d Title 28 U.S.C. \u00a71915(b)(4), and that this matter should proceed directly to the initial screening process prescribed by Section 1915A.

- 2 -
Plaintiff\u2019s IFP application, as well as his Motion to Appoint Counsel be denied, as
moot.1
II. Factual Background

On February 23, 2004, the Plaintiff, who is a Minnesota State prisoner, was convicted of driving under the influence. He was later sentenced to fifty-one (51) months in prison, and he is presently serving his sentence at the Minnesota Correctional Facility, in Rush City, Minnesota.

The Plaintiff is now attempting to sue the Public Defender who represented him during his State criminal case -- Andrew K. Berger (\u201cBerger\u201d). He is also attempting to sue Becker County, and \u201cthe MN Office of the Public Defender.\u201d

The Plaintiff alleges that he suffers from a bipolar disorder, and that he disclosed this information to Berger at an early stage of his State criminal case. According to the Complaint, the Plaintiff also told Berger that he was taking a

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- 3 -
medication called \u201cZYPREXA\u201d which, allegedly, is \u201cknown to cause severe side
effects in some patients.\u201d

The Plaintiff now claims that his constitutional rights were violated, during the course of his State criminal case, because Berger failed to advance a defense based on the Plaintiff\u2019s bipolar disorder and/or the medication he was taking for that disorder. The Plaintiff further claims that he was deprived of his constitutional rights because neither Berger, nor anyone else, made any effort to determine whether he was competent to stand Trial.

The Plaintiff is directly challenging the validity of his current confinement, by
alleging as follows:

The Plaintiff would have received a lesser sentence had his mental health issues been properly investigated. The mental health issue is an issue that would have affected plea negotiation and sentence. The plaintiff\u2019s trial counsel\u2019s performance fell well below a reasonable standard to the point of where it was negligent and a mockery of token representation.

Complaint, at p. 4.

Specifically, the Plaintiff contends that, if he had been represented by different legal counsel, his criminal case \u201cwould have turned out vastly different and [he] would have been released from prison long before this * * *.\u201d As such, the Plaintiff is seeking a

Case 0:06-cv-00166-MJD-RLE Document 4 Filed 01/13/2006 Page 3 of 12\ue000

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