United States District Court, D. South Dakota, Southern Division
ORDER DISMISSING COMPLAINT IN PART, DENYING MOTION FOR PRELIMINARY INJUNCTION, DENYING MOTION TO APPOINT COUNSEL, AND DIRECTING SERVICE OF COMPLAINT
KAREN E. SCHREIER, District Judge
Plaintiff, Daryl Scheetz, is an inmate at the South Dakota State Penitentiary (SDSP) in Sioux Falls, South Dakota. Scheetz filed a pro se civil rights lawsuit pursuant to 42 U.S.C. § 1983 and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Dockets 1, 2. On January 6, 2014, the court granted Scheetz leave to proceed in forma pauperis and ordered him to pay an initial partial filing fee by February 6, 2014. Docket 7. Scheetz has since paid the initial partial filing fee. Docket 14. Furthermore, Scheetz has filed a motion for preliminary injunction (Docket 8) and a motion to appoint counsel (Docket 11).
The court must now screen Scheetz's complaint to determine whether any claims should be dismissed. Pursuant to the PLRA, the court must dismiss an action or any portion thereof if the prisoner has raised a claim that "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
STANDARD OF REVIEW
A claim "is frivolous where it lacks an arguable basis in law or in fact." Neitzke v. Williams , 490 U.S. 319, 325 (1989). The court may, therefore, dismiss a claim as frivolous when it is "based on an indisputably meritless legal theory" or where the factual contentions "are clearly baseless." Id. at 327. The court may dismiss a complaint for failure to state a claim when the plaintiff fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). In reviewing a complaint for failure to state a claim, "[t]he court must presume that the factual allegations in the complaint are true and accord all reasonable inferences from those facts to the [pleader]." Valiant-Bey v. Morris , 829 F.2d 1441, 1443 (8th Cir. 1987) (citing Holloway v. Lockhart , 792 F.2d 760, 762 (8th Cir. 1986)).
Pro se complaints, "however inartfully pleaded, ' [are] held to less stringent standards than formal pleadings drafted by lawyers.'" Estelle v. Gamble , 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner , 404 U.S. 519, 520 (1972)); see also Frey v. City of Herculaneum , 44 F.3d 667, 671 (8th Cir. 1995) (noting that "civil rights pleadings should be construed liberally"). Nonetheless, a pro se complaint must comply with the minimal requirements set forth in the Federal Rules of Civil Procedure, which specifically require pleadings to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Although a pro se complaint need not contain detailed factual allegations, it must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555. Simply stated, a pro se complaint must "allege facts sufficient to support the claims advanced." Stone v. Harry , 364 F.3d 912, 914 (8th Cir. 2004). The court is not required to "supply additional facts, nor will [it] construct a legal theory that assumes facts that have not been pleaded." Id. (citing Dunn v. White , 880 F.2d 1188, 1197 (10th Cir. 1989)). If the complaint does not contain these bare essentials, dismissal is appropriate. Beavers v. Lockhart , 755 F.2d 657, 663 (8th Cir. 1985).
"[T]o state a claim for relief under § 1983, a plaintiff must allege sufficient facts to show (1) that the defendant(s) acted under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right.'" Zutz v. Nelson , 601 F.3d 842, 848 (8th Cir. 2010) (quoting Schmidt v. City of Bella Villa , 557 F.3d 564, 571 (8th Cir. 2009)). In the instant case, Scheetz claims that defendants have engaged in retaliatory discipline, thus violating the Eighth Amendment's prohibition on cruel and unusual punishment. Docket 1 at 4-7. Furthermore, Scheetz alleges that defendants have violated his rights under the due process and equal protection clauses of the Fourteenth Amendment. Id. at 7-8. To remedy these alleged constitutional violations, Scheetz requests that the court issue a declaratory judgment in his favor and order defendants to restore Scheetz's Class I visitation rights and expunge inaccurate accusations from Scheetz's institutional record. Id. at 9-10. Scheetz also requests compensatory and punitive damages. Id. at 10.
I. Scheetz Has Alleged Facts Sufficient to Support a Retaliatory Discipline Claim under the Eighth Amendment.
To establish a prima facie case of retaliatory discipline, a plaintiff must show that "(1) the prisoner exercised a constitutionally protected right; (2) prison officials disciplined the prisoner; and (3) exercising the right was the motivation for the discipline." Haynes v. Stephenson , 588 F.3d 1152, 1155 (8th Cir. 2009). Here, Scheetz alleges that his visitation privileges were reduced from Class I to Class II visits "in retaliation for acts [he] committed... at the Mike Durfee State Prison." Docket 1 at 5. Although Scheetz does not specify the nature of his conduct at Mike Durfee State Prison (MDSP), the court will assume for pleading purposes that the conduct in question involved the exercise of constitutionally protected rights. The court therefore finds that Scheetz has alleged facts sufficient to support the claim that his visitation rights were circumscribed in retaliation for Scheetz's exercise of a constitutionally protected right. Scheetz's retaliatory discipline claim therefore survives initial review under 28 U.S.C. § 1915(e)(2)(B).
II. Scheetz Has Not Alleged Facts Sufficient to Support a Due Process Claim under the Fourteenth Amendment.
The Eighth Circuit has consistently held that there is no constitutional right to visitation in prison. Ware v. Morrison , 276 F.3d 385 (8th Cir. 2002). "Consequently, in the Eighth Circuit, it appears that prison officials are free to arbitrarily deny visitation, even indefinitely, with a prisoner's mother, wife, child, or close friend without being subject to federal court scrutiny." Steinbach v. Branson , No. 1:05-CV-101, 2007 WL 2985571, at *5 (D.N.D. Oct. 9, 2007). Scheetz's right to contact visits therefore does not constitute a liberty interest protected by the Due Process Clause. Phillips v. Norris , 320 F.3d 844, 847 (8th Cir. 2003) (citation omitted) ("A prisoner does not have a liberty interest in contact visitation."); see also Ky. Dep't of Corr. v. Thompson , 490 U.S. 454, 460-61 (1989) ("The denial of prison access to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison sentence, ' and therefore is not independently protected by the Due Process Clause.") (quoting Hewitt v. Helms , 459 U.S. 460, 468 (1983)). Accordingly, Scheetz's due process claim does not survive initial review under 28 U.S.C.
III. Scheetz Has Alleged Facts Sufficient to Support an Equal Protection Claim under ...