United States District Court, D. South Dakota, Southern Division
ORDER DENYING IN PART AND GRANTING IN PART MOTION TO
AMEND AND MISCELLANEOUS OTHER MOTIONS
E. SCHREIER UNITED STATES DISTRICT JUDGE
Haider Salah Abdulrazzak, is an inmate at the Mike Durfee
State Prison in Springfield, South Dakota. He filed a pro se
civil rights lawsuit under 42 U.S.C. § 1983. Docket 1.
Abdulrazzak was later granted permission to amend his
complaint. Docket 13. He now has filed multiple motions to
amend his complaint again. Dockets 17, 18, 31, 44. The court
grants Abdulrazzak's motions in part and denies the
motions in part. The court also directs service in part.
pertinent facts are set forth in the initial screening order
at docket 13.
Rule 15(a) of the Federal Rules of Civil Procedure, a party
may amend his pleadings once without court authorization if
the motion is made within 21 days after service or within 21
days after service of a responsive pleading. “In all
other cases, a party may amend its pleadings only with the
opposing party's written consent or the court's
leave. The court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15 (a)(2). A motion to amend
may be denied when the motion would cause undue delay, is
made in bad faith or based on a dilatory motive on the part
of the movant, or is futile. Popoalii v. Corr. Med.
Servs., 512 F.3d 488, 497 (8th Cir. 2008). Leave of
court is required here, because Abdulrazzak has previously
amended his complaint.
28 U.S.C. § 1915A, the court must screen prisoner
complaints and dismiss them if they are “(1) frivolous,
malicious, or fail to state a claim upon which relief may
be granted; or (2) seek monetary relief from a defendant
who is immune from such relief.” 1915A(b).
has labeled the document at Docket 31-1 as his second amended
complaint. The court will screen this document to determine
if the motion to amend should be granted.
Count I, Abdulrazzak raises claims under the First, Fifth,
Eighth, and Fourteenth Amendments against South Dakota
Secretary of Corrections (SD DOC) Dennis Kaemingk, S.D. DOC
Policy Maker Aaron Miller, the S.D. Board of Pardons and
Paroles (the Board), and the Director of the Board Doug
Clark. Docket 31-1 at 4. Abdulrazzak states that he brings
these claims against defendants “as
municipalities” and against the Parole Board members,
who he claims “adopted an unconstitutional arbitrary
and discriminatory act.” Id. He alleges that
there is a policy to discriminate against him as a
non-citizen of the United States. Id. He alleges
that the policy required him to admit his guilt and
participate in sex offender treatment, requirements that were
not in his original parole agreement. Id.
with regard to the claims against Kaemingk, Miller, and
Clark, the court addressed this claim previously in its order
at Docket 13. The second amended complaint still alleges that
the defendants are “municipalities.” The
defendants are not “municipalities.”
Municipalities are cities or towns-none of these defendants
are cities or towns. Even if they were, a municipality may
only be liable for a violation of constitutional rights if
the violation was caused by its customs or policies.
Crawford v. Van Buren Cty., 678 F.3d 666, 669 (8th
Cir. 2012) (quoting Rynders v. Williams, 650 F.3d
1188, 1195 (8th Cir. 2011)). Abdulrazzak does not point to a
custom or policy that was adopted by a city or town that
violated his rights.
Abdulrazzak alleges that the Parole Board members
“adopted an unconstitutional arbitrary and
discriminatory act by parole officer, where unlike U.S.
Citizens, she required me to participate in a sex offender
treatment and to admit the guilt almost 2 years into my
initial parole release on 6/25/2014.” Docket 31-1 at 4.
He alleges that defendants adopted such custom to save the
Department of Corrections money on rehabilitation
programming. Abdulrazzak does not identify an official policy
or custom that was adopted by the Parole Board. Instead, he
references the actions of one parole officer. He does not
explain how his citizenship status or nationality changed and
caused the Parole Board members to begin discriminating
against him two years after his initial parole release.
Therefore, Abdulrazzak fails to state a claim upon which
relief may be granted, and it would be futile to allow him to
amend Count I.
Count II, Abdulrazzak raises claims under the First, Fifth,
Eighth, and Fourteenth Amendments against Warden Robert
Dooley, Deputy Warden Susan Jacobs, and Unit Staff Member Kim
Lippincott. Docket 31-1 at 6. Abdulrazzak claims that Dooley,
Jacobs, and Lippincott violated his rights by failing to
discuss the requirements of parole that were subsequently
added. Id. He alleges that they discussed the parole
requirements with United States citizens. Id. He
also alleges that if defendants had discussed these parole
requirements with him, he ...