United States District Court, D. South Dakota, Southern Division
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Daryl Scheetz, filed this lawsuit under to 42 U.S.C. §
1983 arguing that defendants violated his constitutional
rights. Docket 1. Scheetz later amended his complaint. Docket
66. Defendants moved for summary judgment and asked the court
to stay discovery. Docket 73; Docket 74. The court granted
the motion to stay discovery pending resolution of
defendants’ renewed motion concerning qualified
immunity. Docket 77. For the following reasons,
defendants’ motion for summary judgment is granted in
part and denied in part.
2007, Scheetz pleaded guilty to aggravated assault and was
sentenced to serve 15 years imprisonment. Docket 75-3 ¶
3. On January 26, 2012, Scheetz signed a Suspended Sentence
Supervision Agreement. Docket 75-8. In this agreement,
Scheetz agreed to follow the rules of the Department of
Corrections (DOC). Id. He also acknowledged he had
been advised that violating the supervision agreement could
result in his suspended sentence being imposed. Id.
2012, while Scheetz was incarcerated at Mike Durfee State
Prison (MDSP), he was investigated for smuggling tobacco into
the prison. Docket 41-2. While searching Scheetz’s
cell, prison officials discovered a can of chewing tobacco,
which is considered contraband at the prison. Docket 41-3.
The next day, prison officials found eighteen more cans of
chewing tobacco in Scheetz’s closet. Docket 41-4. On
July 27, 2012, Scheetz was found guilty of smuggling after a
disciplinary hearing. He was sentenced to ninety days in
disciplinary segregation and fined $100. Docket 41-9. There
was no change to his visiting privileges. Docket 51-11 ¶
August of 2012, Scheetz was transferred to the South Dakota
State Penitentiary (SDSP). Docket 75-2 ¶ 5. After the
transfer, on August 27, 2012, the South Dakota Board of
Pardons and Paroles issued a violation report because
Scheetz’s smuggling infraction violated the conditions
of his parole. Docket 75-7 at 2. After Scheetz’s
attorney asked for several continuances, a hearing before the
parole department was scheduled for April 2013. Docket 75-4
April 8, 2013, the parole board dismissed the alleged
violation. Docket 51-1. In his amended complaint, Scheetz
alleges that defendants were aware of the parole
board’s decision because it is accessible through the
DOC COMS system to which the defendants had access. Docket 66
at 3. He also claims it was common knowledge at both SDSP and
MDSP. Id. Ponto and Summers dispute this, averring
that they did not access the information and did not even
know if it was accessible. Docket 75-1 ¶ 23; Docket 75-5
April 17, 2013, Scheetz’s visitors were put on Class II
visits, meaning the visits took place behind glass through a
phone, there was no contact allowed, and only one visitor was
allowed at a time. Docket 51-2; Docket 66 at 3. This was nine
days after the board dismissed the parole violation
allegation. Docket 51-11 ¶ 11. Between his release from
the Segregated Housing Unit after he arrived at SDSP and
April 2013, Scheetz had Class I visiting status. Id.
¶¶ 6, 10. Under DOC policy, “Inmates may be
allowed visits with approved visitors except where there is
suspicion that such visitation would jeopardize the security,
safety, or the disciplined operation of an
institution.” Docket 41-14 at 1.
aver that in April 2013, SDSP staff gathered information that
led them to believe that Scheetz was involved with a scheme
to smuggle contraband with another inmate, Nathaniel Hayes.
Docket 75-1 ¶ 6. Scheetz alleges that Hunter Summers
told him the information came from a confidential informant.
Docket 66 at 3. Defendants aver that the belief that Scheetz
was involved stemmed from two recorded phone calls between
Hayes and his girlfriend.
to defendants, in a recorded phone call on or about April 12,
2013, Hayes asked his girlfriend if she was “coming up,
” and she responded, “We’ll roll them and
get ready to come up.” Docket 75-1 ¶ 7. Hayes
said, “I told my Homie that if your guys were coming up
I wasn’t going to undo it so I’ll make sure he
knows that real quick.” Id. ¶ 8. In the
second phone call, on or about April 15, Hayes’s
girlfriend said, “We’re going to come up tonight
. . . I didn’t get anything in the mail[, so]
I’ll take some money out of my school fund.”
Id. ¶ 9. Special security believed Hayes and
his girlfriend were discussing smuggling contraband and that
Hayes’s “homie” was Scheetz. Id.
¶ 10. When special security interviewed Hayes’s
girlfriend, she told them Hayes was “having someone
send her money[, ]” but she did not know who.
Id. ¶ 13.
avers that he did not know Hayes and was not associated with
him in any way before he was accused of smuggling with Hayes.
Docket 51-11 ¶¶ 13-15. In an affidavit, Hayes avers
that he had never met Scheetz before he was accused by prison
security of smuggling contraband with him. Docket 51-10
¶¶ 1, 5. Hayes also avers that he never mentioned
Scheetz on a phone call from prison and never sold contraband
to Scheetz. Id. ¶ 4. Finally, Hayes avers that
he never received money from Scheetz for contraband or
anything else and neither had anyone he knows. Id.
filed an Informal Resolution Request on April 24, 2013,
asking about his visitation status. Docket 75-11. In the
request he claimed that there was “no reason for this
punishment” even though prison policy requires a prison
staff give him a reason in this situation. Id. After
saying that there “was no reason for this change to my
visits, ” Scheetz requested the restoration of his
Class I visitation status. Id.
Ponto arranged a meeting with Summers to explain to Scheetz
why his visits had been restricted. Docket 75-5 ¶ 4.
During the meeting, Ponto attempted to discuss the smuggling
investigation. Id. ¶ 5. Scheetz alleges that
Summers and Ponto asked him to inform on other inmates during
this meeting. Docket 66 at 4. When he refused, they told him
"we'll get back to you[.]” Id. Ponto
and Summers aver that, when they explained that they would
not restore Scheetz’s visitation status, he became
upset and refused to say anything during the meeting. Docket
75-5 ¶¶ 6-7; Docket 75-1 ¶20.
this meeting, in June 2013, Scheetz sent a letter to Warden
Robert Dooley explaining the situation. Docket 66 at 4.
During Dooley’s walk through of SDSP, Scheetz
approached Dooley and asked Dooley about his visit
restriction. Id. at 5. Dooley told Scheetz that he
received his letter but that he would not change
Scheetz’s visit status. Id. Dooley avers that,
during this meeting, Scheetz did not mention that he believed
defendants were retaliating against him for the dismissal of
his parole violation. Docket 75-2 ¶ 7.
amended complaint, Scheetz alleges that he had a chance
meeting with Clifford Fantroy and asked him to look into his
visit status. Docket 66 at 4. Later, Scheetz spoke to Fantroy
again, and Fantroy told him that his name was not on any type
of investigation at the prison and that Fantroy could not
understand what was going on. Id.; see also
Docket 75-14 at 2 (Scheetz claiming in a Request for
Administrative Remedy that “senior staff” told
him that his name had “not come up in any investigation
alleges that he spoke to Young about his situation, and Young
told Assistant Warden Arthur Allcock to look into it. Docket
66 at 5. Allcock, however, told Scheetz in passing that
Scheetz “must have done something wrong” and did
not contact him further. Id.
September 5, 2013, Scheetz approached Dooley, Crystal Van
Vooren, and Darin Young during their walk through of SDSP.
Docket 75-12. Scheetz told them that he was on Class II
visits and that he thought it was in retaliation for the
infraction at MDSP and the dismissal of his parole violation.
Id. He asked defendants to restore his visit status.
October 2, 2013, Scheetz was notified that his children were
being taken off his visitors list for not “meeting
requirements.” Docket 51-3. Scheetz asked a prison
official why his children were taken off his list, and he
alleges he was told it was because their social security
numbers had been lost by prison officials. Docket 66 at 6.
After Scheetz provided the information, his children were
returned to his visit list. Id.
October 7, 2013, in a meeting with Scheetz, Van Vooren showed
him an email from Dooley that stated he would not get his
visitation status back, a decision he based on
“reports” about Scheetz. Docket 75-14 at 2.
Scheetz claimed in a Request for Administrative Remedy that
these “reports” were made by Van Vooren and
“based on lies and false accusations.”
September and November 2013, Scheetz grieved his visitation
issue through the prison administrative process. Docket 66 at
5-6. In a Request for Administrative Remedy dated October 8,
2013, Scheetz requested restoration of normal visiting
privileges. Docket 75-14 at 2. In this request, Scheetz
states, “It is obvious by now that this action against
my family and I is a purely retaliatory decision led by Ms.
Van Vooren.” Id. He also states that the email
Van Vooren showed him
proves my contention, it is retaliation rather than an
investigation, because had a real investigation truly been
done surely I would have been cleared of any wrongdoing. Add
to that the fact that senior staff has told me that my name
has not come up in any investigation up here and it is very
plain to see what is really going on.
October 21, 2013, Scheetz complained that his mother and
daughter were not on his visit list. Special security
responded saying that his daughter’s visitation had
been restored. Docket 51-5. On December 20, 2013, Scheetz was
told that Special Security would not return his mother to his
visit list. Docket 51-7. On January 7, 2013, however, the
prison told Scheetz that his mother was never actually
removed from his visit list; she was merely on Class II
visits. Docket 51-9. Prison official Steve Baker avers that
the confusion was caused by the fact that Scheetz’s
mother uses two different names. Docket 75-6 ¶ 11.
December 24, 2013, Scheetz filed a Request for Administrative
Remedy, asking about his visitation status. Docket 75-16. He
complained that he had “been on Class II visits since
April 17, 2013[, ] on one of Ms. Van Vooren’s
whims.” Id. at 2. He asked what reason Van
Vooren had to keep his mother off of his visit list
“unless it’s just a personal vindictive
grudge.” Id. He sought a reason why he was on
Class II visitation status. Id. at 3. He stated,
“[I]n the last 15 months I’ve done nothing to
warrant this[, ]” and that his normal visits were taken
away for no reason. Id. Finally, he stated,
“Look, I get it you people are mad at me for my actions
in Springfield.” Id. On March 5, 2014, after
Scheetz filed the current suit, he was returned to Class I
visiting status. Docket 75-6 ¶ 12.
December 26, 2013, Scheetz filed a pro se civil rights
lawsuit under 42 U.S.C. § 1983, alleging violations of
his constitutional rights. Docket 1. Defendants answered,
arguing that Sheetz’s visitation restriction was not
due to his exercise of a constitutionally protected right.
moved for summary judgment and argued that Scheetz’s
claims were baseless and that he was punished because he
smuggled contraband into the prison. Id. In
Scheetz’s response to this motion, he spelled out
clearly and for the first time that he was alleging that his
punishment was in retaliation for exercising his First
Amendment rights, specifically, defending himself in a parole
hearing. Docket 49.
motion for summary judgment was referred to a magistrate
judge on April 23, 2015. Docket 53. The magistrate judge
issued a report and recommendation that dismissed all claims
except for Scheetz’s Eighth Amendment claim based on
retaliatory punishment. Docket 58. In response, Scheetz
requested leave to amend his complaint. Docket 62. The ...