United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING COMPLAINT
KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE
Plaintiff, Scott Davi, filed this lawsuit pursuant to 42 U.S.C. § 1983, naming Darrin Young, Bob Dooly, and Denny Kaemingk as defendants. Docket 1. Magistrate Judge Veronica L. Duffy “screened” this case pursuant to 28 U.S.C. §§ 1915 and 1915A and recommends dismissal of all of Davi’s claims for failure to state a claim upon which relief may be granted pursuant to §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Docket 10. Davi objects to the recommendations. Docket 11. For the reasons below, Magistrate Judge Duffy’s report and recommendation is adopted, and Davi’s complaint is dismissed.
A full factual background was provided by Magistrate Judge Duffy in her report and recommendation. Docket 10. Therefore, this court will only give a simple explanation and rely on the magistrate judge’s report and recommendation for the full background.
In 1991, Davi was convicted of murder, burglary, rape, and being a habitual offender. State v. Davi, 504 N.W.3d 844, 847 (S.D. 1993). He received four life sentences without parole, a fifteen year sentence and a twenty year sentence to run concurrently. Id. The South Dakota Supreme Court denied Davis habeas relief. Davi v. Class, 609 N.W.2d 107, 118 (S.D. 2000). He is currently incarcerated in the Jameson Annex of the South Dakota State Penitentiary (SDSP). Docket 1 at 1.
Davi filed this complaint on December 16, 2014. Docket 1. He raises three claims in his complaint. Id. Count 1 alleges that the Department of Corrections (DOC) Policy 1.1.B.2 violates due process. Docket 10 at 3. Count 2 alleges that implementation of Policy 1.1.B.2 is unlawful because it violates his “Sentencing and Judgment Order.” Id. at 4. Count 3 alleges that his due process and free speech rights have been and are being violated by DOC Policy 1.5.D.3, which allows no more than ten sheets of paper in each piece of mail sent to a prisoner. Id. Magistrate Judge Duffy recommends all three claims be dismissed. Docket 10. Davi timely filed objections to the report and recommendation. Docket 11.
Review of a magistrate judge’s report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. Pursuant to 28 U.S.C. § 636(b)(1), the court reviews de novo any objections that are timely made and specific. See Fed. R. Civ. P. 72(b) (“The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.”).
Davi objects to Magistrate Judge Duffy’s recommendations on each of his claims. Docket 11.
I. Policy 1.1.B.2 Is Not Unconstitutionally Vague
First, Davi argues that Magistrate Judge Duffy misunderstood his claim. Docket 11 at 1. Davi identifies the deductions from his account and describes the DOC policy regulating deductions for savings, court costs, and costs of incarceration. Id. at 1-2. He states, “These numbers are not in line with how the policy is written.” Id. at 2. He then explains what the numbers should be “per the policy . . . .” Id. After pointing out that the numbers should be different he states, “This is the issue that makes this policy so vague under chatin [sic], unconstitutional and null and void . . . .” Id. Liberally construed, Davi argues that the DOC policy is unconstitutionally vague because the deductions from his account do not match the deduction levels in the DOC policy.
“ ‘The Fifth Amendment guarantees every citizen the right to due process. Stemming from this guarantee is the concept that vague statutes are void.’ ” United States v. Birbragher, 603 F.3d 478, 484 (8th Cir. 2010) (quoting United States v. Washam, 312 F.3d 926, 929 (8th Cir. 2002)). “The vagueness doctrine recognizes that ‘[a] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’ ” Id. (quoting Washam, 312 F.3d at 929). In his objection, Davi merely argues that the amount taken out of his account was different than the amount stated in the policy. Docket 11 at 2. This is a disagreement over the amounts that have been deducted from his account, not the vagueness of the policy.
Even if the vagueness of the policy could be proven by the discrepancy in deductions, the deductions on Davi’s account follow the policy. Once an inmate’s account reaches $140.00, “a percentage established by the DOC may be transferred to the inmate’s savings subaccount based on receipt type. Any remaining funds received will have a percentage disbursed to Fixed Obligations in priority by type.” 1.1.B.2 Inmate Accounts and Financial Responsibility at IV(8)(B). On February 28, 2014, $488.71 was put into his account from the Pontiac Correction Center where Davi was previously incarcerated. Docket 4-1 at 1; Docket 4 at 1. According to Davi’s objections, the deductions should be “5% for savings, 40% for court costs, and 40% for costs of incarceration from the original deposit of $488.71.” Docket 11 at 2. The policy itself only states that ...