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Shaw v. Kaemingk

United States District Court, D. South Dakota, Southern Division

November 28, 2017

JAMES ELMER SHAW, Plaintiff,
v.
DENNIS KAEMINGK, Secretary of Corrections, Sued in his Official and Individual Capacities; ROBERT DOOLEY, Director of Prison Operations, Sued in his Official and Individual Capacities; DARIN YOUNG, Warden, Sued in his Official and Individual Capacities; JENNIFER DRIESKE, Deputy Warden, Sued in her Official and Individual Capacities; JENNIFER STANWICK-KLEMIK, Deputy Warden, Sued in her Official and Individual Capacities; TROY PONTO, Associate Warden, Sued in his Official and Individual Capacities; ARTHOR ALCOCK, Associate Warden, Sued in his Official and Individual Capacities; DAVID LENTSCH, Unit Manager, Sued in his Official and Individual Capacities; DERRICK BIEBER, Unit Manager, Sued in his Official and Individual Capacities; AL MADSON, Unit Manager, Sued in his Official and Individual Capacities; JOSH KEMINK Unit Manager, Sued in his Official and Individual Capacities; TAMMI MERTINS-JONES, Cultural Activities Coordinator, Sued in her Official and Individual Capacities; ELIZABETH VITETTA, Unit Coordinator, Sued in her Official and Individual Capacities; BRITINEY ULMER, Unit Coordinator, Sued in her Official and Individual Capacities; MELISSA MATURAN, Administrative Remedy Coordinator, Sued in her Official and Individual Capacities; STEVE BAKER, Major, Sued in his Official and Individual Capacity; LINDA MILLER-HUNHOFF, Mail Supervisor, Sued in her Official and Individual Capacity; SHARRON KEIMAN, Mailroom, Sued in her Official and Individual Capacity; JORDAN STOREVIK, Mailroom, Sued in his Official and Individual Capacity; DEREK ANDERSON, Correctional Officer, Sued in his Official and Individual Capacity; PRESTON PERRETT, Correctional Officer, Sued in his Official and Individual Capacity; JUDY PLOOSTER-JACOBS, Correctional Officer, Sued in her Official and Individual Capacity; LISA FRASIER, Correctional Officer, Sued in her Official and Individual Capacity; NICK REDDMAN, Teacher, Sued in his Official and Individual Capacity; DR. MARY CARPENTER, MD, Sued in her Official and Individual Capacity; ER REGIER, MD, Sued in his Official and Individual Capacity; BRAD ADAMS, PA-C; Sued in his Official and Individual Capacity; JESSICA SCHREURS, RN; Sued in her Official and Individual Capacity; HEATHER BOWERS, RN; Sued in her Official and Individual Capacity; UNKNOWN DEPARTMENT OF HEALTH/CORRECTIONAL HEALTH SERVICE DOH/CHS EMPLOYEES, Sued in their Official and Individual Capacity; YANKTON MEDICAL CLINICAL, P.C., Sued in its Official and Individual Capacity; BRENT ADAMS, MD; Sued in his Official and Individual Capacity; CBM CORRECTIONAL FOOD SERVICES, Sued in its Official and Individual Capacity; JOHN TWEIRWEILLER, CBM District Manager, Sued in his Official and Individual Capacity; UNKNOWN CBM EMPLOYEES, Sued in their Official and Individual Capacity; DELMER WALTER, Contracted DOC Attorney, Sued in his Official and Individual Capacity; CATHERINE SCHLIMGEN, Contracted DOC Attorney, Sued in her Official and Individual Capacity; MARK BIDNEY, Contracted DOC Paralegal. Sued in his Official and Individual Capacity; AND GLOBAL TEL*LINK, GTL; Sued in its Official and Individual Capacity; Defendants.

          ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, DISMISSING COMPLAINT IN PART AND DIRECTING SERVICE

          KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Plaintiff, James Elmer Shaw, is an inmate at Mike Durfee State Prison (MDSP) in Springfield, South Dakota. Shaw filed a pro se civil rights lawsuit under 42 U.S.C. § 1983 and requested leave to proceed in forma pauperis under 28 U.S.C. § 1915. Docket 1; Docket 3. For the following reasons, the court grants Shaw's motion to proceed in forma pauperis, dismisses Shaw's complaint in part, and directs service.

         FACTS

         Shaw was housed as an inmate at the South Dakota State Penitentiary (SDSP) until he was transferred to the MDSP in April 2017. Shaw alleges several violations of his civil rights occurring at both SDSP and MDSP. Docket 1 ¶ 44. In part, Shaw's claims concern his ability to practice his religion and defendants' alleged failures to recognize and accommodate Shaw's practice. Docket 1. Shaw also makes claims involving his prisoner trust account, medical accommodations, prison policy, and access to the courts. Id. Shaw also claims he suffered retaliation before his transfer for litigating, filing grievances, and attempting to get his religion recognized by one or more defendants. Id. ¶ 45.

         Shaw contends that he has exhausted all available administrative remedies, except when he was denied access to the grievance process. Id. ¶ 50. Before Shaw's transfer, he was deprived of most of his legal papers by one or more of the defendants. Id. ¶ 47.

         The facts as alleged in the complaint are:

         Religious Land Use and Institutionalized Persons Act (RLUIPA)

         Shaw identifies his religion as Dorcha Cosàn. Id. ¶ 57. Dorcha Cosàn requires Shaw to strictly adhere to The Nine Laws of Dorcha Cosàn in order “to keep his geise and for Shaw to reach his ultimate goal of attaining Godhood.” Id. ¶ 53. Shaw's beliefs are sincerely held. Id. ¶ 55.

         Kaemingk, Dooley, Young, Drieske, Stanwick-Klemik, and Mertens-Jones refused to recognize Dorcha Cosàn and denied Shaw's requests for accommodations. Id. ¶ 55. These defendants created or accepted the “operation memorandums, policies, procedures, rules and regulations, both written and unwritten” that burdened Shaw's practice of Dorcha Cosàn. Id. ¶ 62. They required Shaw to prove that his requests were mandated by Dorcha Cosàn and then they waited four months before they considered his requests without providing an answer to Shaw. Id.

         Kaemingk, Dooley, Young, Drieske, Stanwick-Klemik, and Mertens-Jones allowed Shaw's religion to be taken away from him for minor rule infractions. Id. They forced Shaw to wait one year to celebrate a single religious holiday when Shaw was mandated to celebrate eight Sabbats and thirteen Esbats throughout the year. Id. And these defendants only allowed Shaw one day a week for group worship even though Shaw was mandated to worship three times a week plus holidays. Id. And these defendants forced Shaw to allow at least two sex offenders and non-members to attend his religious ceremonies and rituals in violation of Dorcha Cosàn. Id.

         These defendants only allowed Shaw two religious books when Dorcha Cosàn mandates that he have access to thousands at any given time. Id. And these defendants approved mainstream religions' requests and denied the same requests for Shaw. Id.

         Shaw stopped Dooley, Young, Drieske, and Bieber in front of his cell to explain that his religion requests are mandated by his religion. Id. ¶ 63. Shaw stated his intent to sue. Id. And Drieske replied, “ ‘[G]o ahead and sue us, I'll claim all your requests are a security threat.' ” Id. ¶ 64. Dooley and Young failed to manage Drieske and failed to remedy this wrong. Id. ¶ 65.

         When Shaw arrived at MDSP, he spoke with Stanwick-Klemik. Id. ¶ 66. Stanwick-Klemik told Shaw, “ ‘Dorcha Cosàn will not be approved as a recognized religion' and Shaw was told, ‘you should consider signing up for another religious service[] that [is] already established here at Mike Durfee.' ” Id. Signing up for another religious service is an ethical violation of Shaw's obligations to Dorcha Cosàn. Id.

         Dooley, Young, Drieske, and Stanwick-Klemik denied several of Shaw's requests. Id. ¶ 67. They denied Shaw the ability to take three ancestry DNA tests “to determine his origins mandated by Shaw's religion so that Shaw can study the Gods and Goddesses of his ancestors.” Id. Shaw must spend time researching ancestry and chart findings on a genogram, but Shaw was denied the opportunity to do this research. Id.

         Dooley, Young, Drieske, and Stanwick-Klemik denied Shaw “the ability to keep his geise with the Goddesses Brid and Hera.” Id. And these defendants denied Shaw a “Gleinina Droedh, ” “Geisering, ” “ritual tools, ” and “the first 85 texts and their companions of study.” Id. Drieske said Shaw “can not have any of the artistic texts or text companions because they ‘might have nudity[.]' ” Id. And Drieske eliminated sixty-five of the first mandated text or companions with no penological justification other than “a porn policy.” Id.

         Dooley, Young, Drieske, and Stanwick-Klemik have denied Shaw the ability to choose a specific order of accention, to be reborn, to seek guides and helpers, to choose his Branch of Destiny, to acquire mandated texts and companions and to take correspondence course. Id. They denied Shaw a classroom setting to set up a computer, art work stations, and a library for those practicing Dorcha Cosàn. Id. And these defendants denied Shaw a “Group Book of Shadows, ” and “a personal Book of Shadows[.]” Id. The “requests within Law I are of no cost to Defendants.” Id. And “[e]verything needed for Shaw to adhere to Law I will be purchased by DC through approved venders.” Id. ¶ 68.

         Drieske, Stanwick-Klemik, Mertens-Jones, CBM, Unknown CBM employees, and Tweirweiller denied Shaw the ability to follow his religious diet requirements. Id. ¶ 69. And when Shaw inquired about the denial of special diets for Dorcha Cosàn members, an unknown CBM employee stated, “ ‘if you don't like it don't eat anymore.' ” Id. ¶ 70. CBM served no food complaint with his religious diet requirements. Id. ¶ 73. Shaw “believes he is defiling himself by doing something that is completely forbidden by his religion.” Id. ¶ 71.

         Drieske, Stanwick-Klemik, Mertens-Jones, CBM, Unknown CBM employees, and Tweirweiller denied Shaw the ability to celebrate holy days with “Ritual and Feast” as mandated by Law II of Dorcha Cosàn. Id. ¶ 74. And Drieske denied Shaw's requests for all other mandated aspects of Law II. Id. ¶ 75.

         Unknown CHS employees and Drieske denied Shaw all-natural remedies to replace his currently prescribed pharmaceuticals. Id. ¶ 76. All-natural remedies are necessary for Shaw to adhere to Law II of Dorcha Cosàn. Id.

         Alcock, Lentsch, Bieber, and Klemik forced Shaw “to live and dine with non-believers of [Dorcha Cosàn], other races, religions or people who live by a different creed.” Id. ¶ 77. There is a “high probability of confrontation between Shaw and his cell mates.” Id. ¶ 78. These defendants allow other religions, races, and gangs to live together if requested. Id. ¶ 79.

         Drieske and Stanwick-Klemik denied Shaw the ability to adhere to Law III of Dorcha Cosàn. Id. ¶ 80. And Drieske, through Martens-Jones, told Shaw to “switch to Buddha.” Id.

         Drieske, Stanwick-Klemik, and Mertens-Jones denied Shaw the ability to adhere to Law IV of Dorcha Cosàn by denying him “ritual and divination tools mandated by Dorcha Cosàn.” Id. ¶ 81. These deprivations are “the equivalent of taking a digit or limb from Shaw for each ritual tool denied.” Id. ¶82. Ritual tools are “partners and aids in Magick and can not be regulated as being props that can be easily denied or discarded.” Id. ¶83. The ritual tools are sacred and “are among the outer aspects of Wicca.” Id. ¶¶ 84-85.

         Drieske and Stanwick-Klemik denied Shaw the ability to adhere to Laws V and VI. Id. ¶ 87. Law VI that mandates Shaw “worship and celebrate the ‘Sun' throughout the ‘Wheel of the Year' (WOY) and Dorcha Cosàn's Zodiac system, by giving thanks, sending daily offerings, and having ‘outdoor-cook-outs' followed by ‘outdoor-ritual-and feast' ceremonies on the day before or the day of the Eight Sabbats.” Id. ¶ 88.

         Drieske and Stanwick-Klemik denied Shaw the ability to adhere to all aspects of Law VIII, which mandates Shaw “worship and celebrate the ‘Moon' throughout the ‘Tree Calendar, ' by giving thanks, sending daily offerings, and having ‘outdoor-cook-outs' followed by ‘outdoor-ritual-feasts' ceremonies on the day before or day of the Thirteen Esbats.” Id. ¶ 89. And these defendants denied Shaw the ability to adhere to Law IX. Id. ¶ 90.

         Free Exercise

         One or more defendants denied recognition of Dorcha Cosàn and have placed substantial burden on Shaw's observation of Dorcha Cosàn. Id. ¶ 92. Kaemingk, Dooley, Young, Drieske, Stanwick, Mertens-Jones, Lentsch and Bieber allow religious accommodations for other religions but deny the same to Shaw. Id. ¶ 93. The denials forced Shaw to significantly modify his practice and “render[ed] Shaw's religious exercise effectively impractical.” Id. ¶¶ 93-95.

         CBM, unknown CBM employees and Tweirweiller denied Shaw the diet religiously mandated by Dorcha Cosàn. Id. ¶ 96. But these defendants allow mainstream religions diets in accordance with their religious mandates. Id.

         CBM denied Shaw the ability to receive care packs from friends and family because he is an indigent inmate. Id. ¶ 97. GTL denied Shaw the ability to receive music, books and games on a tablet because he is an indigent inmate. Id. ¶ 98.

         Reddman and Jacobs denied Shaw the ability to use the law computer in the school at SDSP when trying to prepare this complaint and “typing his DJS.” Id. ¶ 100. Reddman and Jacobs “labeled” this conduct a rule infraction. Id. Shaw was never written up for a rule infraction but was sanctioned for this conduct. Id. ¶ 103. Jacobs “stated, ‘My Christian Faith does not allow me to let Shaw's “Devil Worship Group” sue my employers.' ” Id. ¶ 101. Dorcha Cosàn does not believe in or worship the devil. Id.

         Shaw was banned from all computers to prevent him from preparing this complaint. Id. ¶ 102. Reddman denied Shaw employment in the school because Shaw is banned from all computers. Id. Shaw alleges that Fraiser imposed these sanctions to prevent Shaw from preparing religious complaints and project applications. But Frazier, Jacobs, and Reddman allow Christian, Jewish, and Native American groups to prepare their complaints and project applications on the law library computers. Id. ¶ 104.

         Equal Protection

         Every aspect of the Nine Laws of Dorcha Cosàn and requested accommodation has been approved for similarly situated inmates and mainstream religious groups. Id. ¶ 105. Defendants Kaemingk, Dooley, Young, Drieske, Stanwick-Kemik, and Mertens-Jones approved requests for similarly situated inmates and mainstream religious groups. Id. ¶ 106. Shaw received different treatment. Id. ¶ 107.

         Drieske, Stanwick-Klemik, and CBM allowed other religious groups to buy and receive donations from outside approved venders, other than CBM, for religious or cultural gatherings. Id. ¶ 108. But they deny the same to Shaw. Id. Shaw can only purchase foods for religious gatherings and celebrations through CBM. But CBM refused to allow Shaw to adhere to DC's strict dietary requirements. Id.

         CBM provided Shaw celebratory meals. Id. ¶ 110 But these meals are the same as the main line meals. Id. And CBM raised the prices for a meal that is otherwise free. Id. CBM provided free special meals for mainstream religions on religious holidays. Id. ¶ 111. But CBM denied the same to Shaw.

         CBM, Tweirweiller, and unknown CBM employees falsely advertised that their commissary products complied with Shaw's religious requests and that their commissary products were a particular name-brand, price, and quantity. Id. ¶ 112. CBM employees replaced the name-brand products with cheaper, generic, smaller quantity, non-compliant products without posting the changes. Id. ¶ 113. And Shaw did not receive notice of the changes until the order was delivered. Id. ¶ 114. CBM employees refused to reimburse Shaw. Id.

         The price of food outside of prison has decreased for the past two years. Id. ¶ 115. But in October 2016, CBM “raised their commissary prices on over 300 items by an average of 18% on food items alone.” Id. ¶ 116. CBM replaced brand name items with cheaper, imitation, less quantity items. Id.

         Kaemingk, Dooley, and unknown CBM Employees allowed other religions to purchase foods, commissary, and religious items from vendors other than CBM. Id. ¶ 117. But these defendants denied Shaw the same option. Id. Shaw is a captive consumer. Id. ¶ 118.

         CBM has a food contract. Id. ¶ 120. This contract allows CBM to force Shaw to buy his commissary at CBM. Id. ¶ 121. And Shaw buys CBM commissary “because of hunger.” Id.

         CBM refused to provide Shaw with his religious dietary needs. Id. ¶ 112. And CBM refused to carry commissary products that would allow Shaw to adhere to his religion. Id.

         On December 21, 2016, Shaw canceled the Yule Sabbat feast and celebration because CBM and Drieske refused to allow Shaw to order “all natural” foods from Hy-Vee. Id. ¶¶ 124-26. Hy-Vee is an approved vender for the DOC. Id. ¶ 126. Hy-Vee has catered Buddhist, Jewish, and Muslim group meals. Id. ¶ 127. Drieske approved this differential treatment. Id. ¶ 128.

         One or more defendants own stocks or shares in CBM. Id. ¶ 129. And this motivates Kaemingk to allow CBM to create a monopoly to violate Shaw's constitutional rights. Id.

         First Amendment Right to Receive Mail

         Drieske, Baker, Miller-Hunhoff, Reimann, and Storvick rejected or refused to deliver over 200 magazines that were mailed to Shaw based on prison concerns. Id. ¶ 131. The rejected magazines are art magazines. Id. ¶ 132. And the magazines are “necessary reference materials for Shaw's religion . . . to develop [his] artistic-magickal mind [sic].” Id. These rejections place a substantial burden on Shaw. Id. ¶ 133. Most of the rejections are based on a single, small picture within an entire magazine. Id. ¶ 134. And when the magazines are rejected, Shaw is indigent and unable to send the rejected magazines out. Id. ¶ 135. Shaw has suffered over $1, 000.00 in monetary loss. Id.

         Drieske and Baker rejected Shaw's magazines. Id. ¶136. And the same defendants rejected Shaw's magazines again during the grievance process. Id. Shaw alleges that Drieske stated, “ ‘they might have nudity in them.' ” Id. ¶ 138.

         Due Process

         Kaemingk, Dooley, and Young promulgated policies that deprived Shaw of personal property and moneys. Id. ¶ 139. These policies did not provide sufficient procedural safeguards to avoid “erroneous deprivations of Shaw's protected life, liberty or property interest[.]”Id. ¶140. The current policy requires Shaw to “sign away his due process rights to receive money or buy property or he is unable to purchase personal property or receive money from friends or family.” Id. ¶ 143. The current policy allows for DOC officials to “lose [sic], take or destroy Shaw's personal property without any liability[.]”Id. ¶ 144. The current policy requires Shaw to “(1) sign the return inventory sheet and forfeit his missing property or (2) refuse to sign the return inventory sheet and lose all of plaintiff's property.” Id. ¶ 145.

         Shaw receives money from outside sources that are deposited into his institutional account. Id. ¶ 139. And the current DOC policy allows for up to 95% of Shaw's incoming money. Id. ¶ 141.

         Some of Shaw's incoming money was taken without any procedural due process. Id. ¶ 139. On two occasions significant portions of his property were missing. Id. ¶ 145. Defendants confiscated $140.00 out of his inmate account without notifying Shaw or giving him an opportunity to state his objection to the confiscation. Id. ¶ 147.

         Shaw has not received a pre-deprivation hearing before his money was confiscated. Id. ¶ 142. The current administrative remedy policy allowed UM Bieber to decide both stages of the grievance process. Id. ¶ 146. This insured that Shaw did not get his property back. Id. On October 31, 2016 at 1:30 p.m., there was a small claims hearing on I.T.V. against UM Bieber and Young. Docket 1 ¶193.

         Current DOC policy allows one or more defendants to take Shaw's incoming money and place it in a frozen account. Once in the frozen account, the DOC holds it forever without Shaw's permission, against Shaw's will, and without having power of attorney. Id. ¶ 148. The current policy allows the DOC to earn interest off of Shaw's incoming money and deprive him of that interest. Id. ¶ 149.

         The Americans with Disabilities Act

         Shaw is disabled. Id. ¶ 153. He “has been diagnosed with an osteochondroma of the right proximal fibula, has no ALL's in his knees, needs full knee replacements which he can not receive until he is at least 60 years of age, wears metal knee braces, has low back pain due to his bottom three (3) vertebrae having no fluid in them and has arthritis in his knees and lower back.” Id. Shaw experiences “pain and suffering when caring for himself, performing manual tasks such as walking, sitting or even standing too long[.]”Id. ΒΆ 154. Shaw experiences restlessness, ...


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