United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS,
DISMISSING COMPLAINT IN PART AND DIRECTING SERVICE
E. SCHREIER, UNITED STATES DISTRICT JUDGE.
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
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.
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.
facts as alleged in the complaint are:
Land Use and Institutionalized Persons Act (RLUIPA)
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. ¶
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
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
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.
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.
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
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.
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.”
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.
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.
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.
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.
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.
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
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. ¶¶
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
Amendment Right to Receive Mail
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
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.
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.
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.
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.
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.
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. ¶
Americans with Disabilities Act
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.
¶ 154. Shaw experiences restlessness, ...