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