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Linson v. Klimek

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

March 8, 2018

TODD D. LINSON, Plaintiff,
v.
JOSH KLIMEK, TAMMY DEJONG, Defendants.

          OPINION AND ORDER GRANTING DEFENDANTS1 MOTION FOR SUMMARY JUDGMENT

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE

         Plaintiff Todd D. Linson ("Linson"), an inmate at the Mike Durfee State Prison ("MDSP"), filed this lawsuit alleging various state officials had deprived him of rights guaranteed to him under the Constitution of the United States. Doc. 1. Pursuant to 28 U.S.C. § 1915A, this Court granted Linson leave to proceed in forma pauperis and dismissed certain claims and defendants from this suit at the screening stage. Doc. 13. That opinion and order preserved Linson's claim of access to the courts based upon alleged interference with his participation in his divorce proceedings and a First Amendment claim based upon an alleged inability to utilize the MDSP grievance process. Doc. 13 at 5-9. This Court also retained Josh Klimek ("Klimek") and Tammy Johnson DeJong ("DeJong"), as defendants (collectively "Defendants"). Doc. 13 at 11. Subsequently, Defendants moved for summary judgment on Linson's remaining claims. Doc 26. For the reasons stated below, this Court grants Defendants' motion for summary judgment.

         I.Facts Not Subject to Genuine Dispute[1]

         Linson is currently in the custody of the South Dakota Department of Corrections and housed at MDSP. Doc. 32 at ¶ 1; Doc. 36 at ¶ 1. Klimek is a Unit Manager at MDSP and has been employed by the South Dakota Department of Corrections for approximately 12 years. Doc. 30 at ¶ 2. DeJong is a Case Manager at MDSP and has been an employee of the South Dakota Department of Corrections for approximately 21 years. Doc. 28 at ¶ 2.

         Linson was served with a pro se divorce complaint filed by his then wife Rebekka Linson ("Rebekka") in early August of 2016. Doc. 1 at ¶ 6. In a letter to the judge assigned the divorce case, Judge Lawrence E. Long, dated October 31, 2016, Linson explained that he had received a no-contact order from Rebekka and advised that he would not contest the divorce if the court would award him the following property: "1) 1990 Volvo S-70, wrecked, inoperable[] (already titled in my name); 2) All personal items including[] clothes, paperwork, Sentry Fire Safe and contents; 3) All tools, [h]and and power, used for defendant[']s job, with most provided by my employer." Doc. 31-1 at 1. Linson further stated that Rebekka could have all other property, and acknowledged receipt of notice of a November 15, 2016, hearing for which he requested permission to appear in person or by remote means such as telephone or video conference. Doc. 31-1 at 1-2. Linson also provided a proposed stipulation agreement which would have awarded him the following property:

1) 1999[2] Volvo S-70, titled in defendant's name. Wrecked, not operable.
2) All clothes to include[] pants, shirts[, ] shorts, jeans, work wear, jerseys, cold weather gear, shoes, boots, work boots.
3) All sports memorabilia, to include all Detroit Tigers items.
4) All Tools, including hand tools and power tools, and accessories, to include all Porter Cable Multi-pack items.
5) All personal paperwork to include family photos, all United States Army paperwork and veterans' paperwork, Sentry Fire Safe and contents.
6) An order allowing my assigned representative to receive all items listed.

Doc. 31-2. The proposed stipulation agreement was signed by Linson and notarized by DeJong. Doc. 31-2.

         Inmates at MDSP who wish to make phone calls are required to make arrangements in advance in order to allow for planning of sufficient staff to assist and supervise the inmate. Doc. 30 at ¶ 5; Doc. 32 at ¶ 5. Inmates who wish to appear at a court hearing via telephone are further required to show the notice they received regarding any such hearing and make their arrangements with prison staff at least a day in advance. Doc. 30 at ¶ 6; Doc. 32 at ¶ 6. According to Linson, he filed a request with Klimek on November 1, 2016, indicating he needed to appear at his divorce proceeding on November 15. Doc. 37 at ¶ 3; see Doc. 35-1 (Linson phone request, dated Nov. 1, 2016). All parties agree that on November 15, Linson requested to make a phone call. Doc. 28 at ¶ 5; Doc. 30 at ¶ 7; Doc. 32 at ¶ 7; Doc. 37 at ¶¶ 3-4. Linson recalls telling DeJong that he needed to call to participate in his court hearing and attempting to show her the notice of hearing. Doc. 36 at ¶ 6; Doc. 37 at ¶¶ 3-4. Linson recalls that DeJong told him to leave her office because it was not "open door." Doc. 36 at ¶ 6; Doc. 37 at ¶ 4. DeJong claims that when Linson requested to make a phone call on November 15, she directed him to make his request with Klimek and denies that Linson informed her that the purpose of the call was to participate in his divorce proceedings. Doc. 28 at ¶¶ 5-6. Klimek also claims that Linson did not inform him that the purpose of the phone call was to participate in his divorce proceedings and denies that Linson made any advance request. Doc. 30 at ¶¶ 7-8; Doc. 32 at ¶¶ 7-8. Linson says that he had no interaction with Klimek on November 15, 2016, and that Klimek1 makes himself unavailable to his unit despite being Unit Manager by vacating the unit and spending his time elsewhere. Doc. 36 at ¶¶ 7-8; Doc. 37 at ¶ 2.

         Judge Long entered a default Judgment and Decree of Divorce on November 15, 2016, which divided the property ...


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