United States District Court, D. South Dakota, Southern Division
NATIVE AMERICAN COUNCIL OF TRIBES, BLAINE BRINGS PLENTY, and CLAYTON SHELDON CREEK, Plaintiffs,
DOUGLAS WEBER, Warden of the South Dakota State Penitentiary; and DENNIS KAEMINGK, Secretary of the Department of Corrections, Defendants.
ORDER DENYING MOTIONS TO MODIFY REMEDIAL ORDER,
DENYING MOTION FOR PERMANENT INJUNCTION AND HEARING, DENYING
MOTION TO REPLACE COUNSEL, AND DENYING MOTIONS TO
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Native American Council of Tribes (NACT), Blaine Brings
Plenty, and Clayton Creek, succeeded in a court trial against
defendants, Douglas Weber and Dennis Kaemingk, showing that a
complete ban of tobacco in Department of Corrections (DOC)
facilities violates the Religious Land Use and
Institutionalized Persons Act (RLUIPA). Native Am.
Council of Tribes v. Weber, 897 F.Supp.2d 828 (D.S.D.
2012) (NACT I).
January 25, 2013, this court entered a remedial order that
afforded inmates who participate in the Native American
religion the opportunity to use tobacco during certain
religious ceremonies. Docket 196. On appeal, the Eighth
Circuit Court of Appeals affirmed the remedial order.
Native Am. Council of Tribes v. Weber, 750 F.3d 742
(8th Cir. 2014) (NACT II). On September 23, 2015,
this court amended that order. Docket 248. Creek now moves to
modify the order, for a preliminary injunction and hearing,
to remove counsel, and to amend the complaint. Docket 270;
Docket 273; Docket 275; Docket 276; Docket 279; Docket 280;
Docket 281; Docket 282; Docket 284.
Motion to Modify Remedial Order
moves to modify the remedial order to increase the volume of
tobacco allowed in the mixtures to five percent tobacco by
volume. Docket 270; Docket 271 at 4; Docket 273. Creek argues
that the court should increase the permitted volume of
tobacco because the Eighth Circuit acknowledged that a
mixture that contains one to five percent tobacco would be
appropriate for Lakota religious ceremonies and the DOC has
not met its “goal of preventing contraband tobacco from
entering the prisons [sic] systems.” Docket 271 at 6.
standard for modifying a remedial order is governed by
Fed.R.Civ.P. 60(b)(5),  18 U.S.C. § 3626,  and the test set
out in Rufo v. Inmates of Suffolk County Jail, 502
U.S. 367, 383 (1992). “[A] party seeking modification of a
consent decree bears the burden of establishing that a
significant change in circumstances warrants revision of the
decree.” Rufo, 502 U.S. at 383. “A party
seeking a modification of a consent decree may meet its
initial burden by showing either a significant change in
either factual conditions or in law.” Id. at
has failed to show a significant change in facts or law that
would satisfy the standard for modifying a remedial order.
Creek argues that the order should be modified to allow five
percent tobacco by volume in the mixtures used for Native
American religious ceremonies because the Eighth Circuit
acknowledged in its opinion that one to five percent of
tobacco in a mixture is satisfactory for practicing religious
ceremonies. Docket 271 at 4. This argument does not meet the
Rufo standard because it is not a change in fact.
When the Eighth Circuit originally upheld the remedial order
in NACT II, it considered the testimony at trial
that one to five percent tobacco was satisfactory to practice
the Lakota religion. NACT II, 750 F.3d at 752. Thus,
there has not been a change in fact since the Eighth Circuit
upheld the remedial order.
also argues that the DOC has not upheld its goal of
preventing contraband tobacco from entering the prison.
Docket 271 at 3 (“[U]nauthorized tobacco continues to
enter the South Dakota prison system through visitors,
employees, inmates from trustee units, inmates from other
facilities, and volunteers.”). Creek does not provide
any evidence that the DOC is failing to prevent contraband
tobacco from entering the prisons. But even if the DOC is
struggling to keep contraband tobacco out of the prisons,
that does not warrant modifying the order. Defendants
originally argued that they had a compelling interest in
maintaining security by preventing tobacco from being used
for non-religious purposes in the prisons, and the Eighth
Circuit found that the remedial order balanced the DOC's
interest with the prisoners' religious rights. NACT
II, 750 F.3d at 750-51. The fact that defendants are
still unable to prevent contraband tobacco from entering the
prisons is not a significant change in facts because the DOC
was unable to prevent contraband from entering the prisons at
the time of the order. Thus, Creek's motions to modify
the order (Docket 270; Docket 273) are denied.
also attempts to amend the order to add provisions regarding
the seven sacred ceremonies and prisoners' access to a
sweatlodge. Docket 271 at 5-6. The scope of this case and
this remedial order is limited to tobacco use and this case
has already been decided on the merits. Thus, any attempts to
amend the remedial order must be limited to tobacco use, and
the remedial order may only be amended in the event of a
substantial change in facts or law. Any new claims alleging
that DOC policies are restricting additional religious rights
of prisoners, such as the seven sacred ceremonies, access to
a sweat lodge, or any other non-tobacco related claims,
should be brought in a new complaint and not as an amendment
to the remedial order.
Motion for Temporary Restraining Order and Hearing
moves for a temporary restraining order (TRO) under
Fed.R.Civ.P. 65(b) until such time as this court can have a
hearing to determine if a preliminary injunction is
justified. Docket 275; Docket 276. The four factors the court
considers in determining whether to grant preliminary
injunctive relief are: “ ‘(1) the threat of
irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction
will inflict on other parties litigant; (3) the probability
that movant will succeed on the merits; and (4) the public
interest.' ” Barrett v. Claycomb, 705 F.3d
315, 320 (8th Cir. 2013) (quoting Dataphase Sys., Inc. v.
CL Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981)). The
Eighth Circuit Court of Appeals has “observed that the
‘likelihood of success on the merits is most
significant.' ” Id. (quoting S.J.W. ex
rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d
771, 776 (8th Cir. 2012)).
does not precisely identify the relief requested,
to the extent Creek is asking this court to impose a
temporary restraining order prohibiting defendants from
banning the use of tobacco in Native American religious
ceremonies, this request is denied as moot because that exact
language is already part of this court's order dated
January 25, 2013. Docket 196 at 10. To the extent that Creek
is requesting a temporary restraining order prohibiting
defendants from restricting the mixture used in Native
American ceremonies to one percent tobacco, this request is
denied because this court's order specifically permits
defendants to restrict the mixtures to one percent tobacco,
and Creek does not show a significant change in facts or law
to warrant ...