United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER (DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT, DOCKET #108)
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE
matter is before the court on plaintiff Shane Douglas
Bell's amended complaint pursuant to 42 U.S.C. §
1983. See Docket 89. The defendants have moved the
court for summary judgment in their favor. See
Docket 108. The parties have consented to this magistrate
judge handling their case pursuant to 28 U.S.C. §
to Fed.R.Civ.P. 56(c) and Local Rule 56.1, the defendants
submitted a statement of undisputed material facts (Docket
116). The plaintiff submitted a response (Docket 124)
indicating whether he admitted or disputed each of the
defendants' facts. In that same document (Docket 124) the
plaintiff also submitted 59 additional facts which he asserts
are material. The defendants have not disputed these
additional facts. The facts below merge the defendants'
statement of undisputed facts, the plaintiff's response
to the same, and the plaintiff's statement of additional
Shane Douglas Bell, is and has been at all time relevant to
this lawsuit an inmate at the South Dakota State Penitentiary
(SDSP) in Sioux Falls, South Dakota.
Darin Young is the Warden of the SDSP. Defendant Young has
been the Warden of the SDSP since May 24, 2013.
Jennifer Dreiske is the Deputy Warden at the SDSP and has
served in that position since March 26, 2013.
Denny Kaemingk is the South Dakota Secretary of Corrections
and has served in that position since May 2, 2011.
Bob Dooley was the Warden of the Mike Durfee State Prison
(MDSP) in Springfield, South Dakota and also served as the
Director of Prison Operations for the South Dakota Department
of Corrections (SDDOC).
Dooley had served as the Director of Prison Operations for
the SDDOC since June, 2013.
Moisan is a Senior Correctional Officer at the SDSP.
Craig Mousel is a correctional officer as the SDSP. CO Mousel
has been employed by the SDDOC since August, 2007 and has at
all times relevant to this lawsuit served as a property
officer at the SDSP.
Bell brings this lawsuit against all defendants in both their
official and individual capacities.
Mr. Bell's Amended Complaint
Bell's amended complaint (Docket 89) alleges four causes
of action. Mr. Bell seeks declaratory and prospective
injunctive relief pursuant to 42 U.S.C. § 1983 (p. 1) as
well as Mr. Bell's attorney's fees (p. 16) based upon
the alleged violation of his First Amendment rights, his
right to be free from unlawful retaliation, and his right to
equal protection under the law (class of one). See
Docket 89, p. 1.
count one, Mr. Bell alleges a violation of his First
Amendment right to receive mail. Docket 89, p. 8. Mr. Bell
does not specifically name any defendants in this cause of
action, but generally refers to “the defendants.”
However, in the factual allegations which he asserts pertain
to all counts in the amended complaint, Mr. Bell alleges that
defendant Mousel, acting is his capacity as the property
officer, is the individual who rejected Mr. Bell's books
when the books arrived in the prison mail room. Mr. Bell
asserts defendant Mousel is the person who completed the
“Supply Correspondence Rejection Notice” form
advising Mr. Bell that the books in question were not
delivered to him because the books violated prison policy.
See Docket 89, ¶¶ 21-22. The named
defendants who responded to Mr. Bell's grievances
regarding the rejected books are Jennifer Dreiske and Warden
Young. See Docket 1-1, p. 52.
cause of action alleges the defendants' policy regarding
incoming mail is facially invalid because it rests upon
distinctions between “new, ” “used, ”
and “donated” books which are vague and
overbroad. Id. Mr. Bell further alleges that such
distinctions are not rationally related to a valid
penological interest. Id.
Mr. Bell asserts the policy is invalid as it has been applied
to him. Docket 89 at pp. 8-9. Mr. Bell alleges that as it has
been applied to him, the policy is so arbitrary and
capricious as to constitute a violation of his First
Amendment right to receive mail. Id. at p. 9.
Bell alleges the right to be free from selective and
arbitrary enforcement of putatively neutral prison mail
policies is clearly established, and any reasonable prison
official should understand that a prisoner is entitled to be
free from selective enforcement of such policies.
count two, Mr. Bell alleges that on its face, the SDSP and
SDDOC pornography policy is unconstitutionally vague and
overbroad. Docket 89, p. 10. Again, Mr. Bell does not bring
this cause of action against any specific defendant, but
generally alleges the defendants have violated his
constitutional rights. A reading of the allegations which Mr.
Bell asserts pertain to all causes of action, however, reveal
that defendant Moisan rejected Mr. Bell's May, 2016,
issue of Military History magazine based upon her
interpretation of the SDDOC pornography policy. Unit
Coordinator (UC) Hughes affirmed defendant Moisan's
decision when UC Hughes rejected Mr. Bell's informal
resolution request. Docket 89, ¶ 35. UC Hughes is not a
party to this lawsuit. Also, defendant Warden Young affirmed
this decision by rejecting Mr. Bell's request for
administrative remedy. Docket 1-1, p. 30. Mr. Bell asserts
the prison officials who are charged with enforcing the
policy are unable to meaningfully differentiate between
material that is prohibited by the terms of the policy and
material that is allowed under the exceptions articulated by
the policy. Docket 89, ¶ 75.
Mr. Bell asserts that even assuming the pornography policy is
valid on its face, the policy has been unconstitutionally
applied as to him. As an example, Mr. Bell asserts the policy
was applied in an unconstitutional manner when the defendants
refused to allow him to have the May, 2016, issue of
Military History magazine. Docket 89, p. 5. Mr. Bell
asserts that his administrative appeals regarding
Military History were ruled upon by prison officials
who had never seen the rejected magazine and therefore, could
not have made an independent review of the allegedly
offensive material. Id. Therefore, Mr. Bell alleges,
the documented reasons for the rejection of the magazine are
suspect and there is no rational relationship between the
policy and the defendants' actions. Id.
Bell further alleges that the images contained within the
Military History magazine should have fallen within
one of the exceptions contained within the pornography policy
because the image had extrinsic value. Mr. Bell asserts the
defendants' denial of the Military History
magazine adversely affected his First Amendment rights.
count three, Mr. Bell alleges the defendants retaliated
against him for exercising his constitutional rights. Docket
89, p. 11. Again, Mr. Bell does not name specific defendants
in count three. The court therefore reviews the general
allegations to discern the identities of the actors
responsible for the actions Mr. Bell asserts were taken for a
Bell alleges he filed a previous lawsuit against prison
officials in 2014 (“the 2014 lawsuit”).
Id. He further alleges that, before he filed the
2014 lawsuit, he was allowed to receive books from various
publishers without purchasing them (“donated
books”). Id. Mr. Bell alleges that after
filing the 2014 lawsuit, he was no longer allowed to receive
the same donated books he was previously allowed to receive,
ostensibly pursuant to OM 2.3.C.4. Docket 89, p. 12.
Bell alleges in count three that the SDDOC policy regarding a
prisoner's conditional right to receive books has been
arbitrarily and selectively enforced against him in a
discriminatory manner, and that the timing and circumstances
of the manner in which the policy has been enforced establish
a causal nexus between his protected activity and the adverse
action (rejecting books sent to him through the mail.).
Docket 89, p. 12. Because the only named defendant who is
alleged to have been involved in Mr. Bell's
receipt/rejection of books is defendant Mousel, the court
understands Mr. Bell's retaliation claim to be made
against defendant Mousel. Mr. Bell asserts the selective and
arbitrary enforcement of OM 2.3.C.4 is direct evidence of the
defendants' unlawful retaliation against him for filing
the 2014 lawsuit.
Bell also alleges he has been subjected to retaliation
because he was denied access to “kite” forms for
the purpose of filing grievances. Docket 89, ¶ 58. Mr.
Bell does not specify in his amended complaint who denied him
the forms. Id. Mr. Bell's grievance forms,
however, indicate that the person who he claims denied him
grievance forms was UC Steinecky, who is not a named
defendant in this lawsuit. See docket 109-1, p. 1. The
persons who responded to Mr. Bell's grievance regarding
UC Steinecky's alleged refusal to provide Mr. Bell with
the forms were Krista Bast (not a named defendant in this
lawsuit) and defendant Warden Young. See Docket Nos.
109-2, 109-4 and 109-8.
section of his amended complaint which articulates facts
applicable to all claims, Mr. Bell alleges he was involved in
an altercation on February 1, 2017, and that, based on how he
was treated after the altercation, he believes prison staff
retaliated against him. Docket 89, p. 12. He also claims
staff failed to investigate or intercede on his behalf to
stop unlawful misconduct. Id. Again, the amended
complaint does not name the “prison staff” to
which Mr. Bell refers.
support of their motion for summary judgment, the defendants
submitted the affidavits of April Smythe (Docket 110); John
Benting (Docket 111); Randy Flick (Docket 114); and Ring Kuol
Arop (Docket 115). None of these individuals are named
defendants in this lawsuit. Officer Flick was he senior CO
who observed the “chow hall” fight between Mr.
Bell and the other inmate. Docket 114, ¶ 3. CO Arop is
he officer who broke up the fight and escorted Mr. Bell to
the holding cell, giving him a security gown in place of his
regular prison clothes. Docket 115, ¶¶ 9-11. John
Benting is the supervisory officer at Jameson Prison Annex
(JPA) who approved of Mr. Bell being placed in a holding cell
after the February 1, 2017, “chow hall” fight and
approved of Mr. Bell being given only a safety gown to wear,
per SDDOC Policy 1.4.E.7. Docket 111, ¶¶ 7-8. April
Smythe is a Licensed Practical Nurse (LPN), employed by the
SDSP. Docket 110, ¶¶ 1-2. She provided medical care
to Mr. Bell after the February 1, 2017, “chow
hall” fight. Id. at ¶¶ 4-12.
Bell alleges that a reasonable person in his position would
be dissuaded from engaging in protected activity if subjected
to such a pattern of retaliatory conduct. Id. He
further alleges the defendants have failed to intervene or
have been deliberately indifferent to retaliatory conduct by
their subordinates. To the extent this is intended to allege
supervisory liability, the court interprets this portion of
the retaliation claim to be alleged as against Warden Young,
Assistant Warden Dreiske, and Secretary Kaemingk.
count four, Mr. Bell alleges a violation of his right to
equal protection under the Fourteenth Amendment by creating a
“class of one.” Docket 89, pp. 13-14. Mr. Bell
alleges his right to be free from being “singled out
and targeted” for exercising his constitutional rights
and engaging in protected activity was clearly established at
the time in question. Docket 89, p. 13.
Mr. Bell does not name any specific defendants in count four
of his amended complaint. The specific actions he cites,
however, are the same actions he cites in support of his
Claim-Specific Facts Supported by the Record
court allowed limited discovery to flesh out Mr. Bell's
claims in a manner sufficient to determine whether the
defendants are entitled to qualified immunity in this civil
rights action. See Docket 96. In their statements of
fact, the defendants and Mr. Bell have referred to the
affidavits of the parties and to (among other things) the
discovery which was produced in support of their relative
positions. In this section, the court draws upon the record
evidence as highlighted by parties' statements of fact to
glean the information relevant to each claim in Mr.
Bell's amended complaint.
Count 1: First Amendment Claim (Right to Receive
Mail- Policy OM 2.3.C.4)
heart of this claim is SDDOC Operational Memorandum (OM)
2.3.C.4. The policy is in the record in its entirety at
Docket 52-1. More specifically, the application of that
portion of OM 2.3.C.4 which pertains to obtaining personal
property (incoming books in the mail) is the portion of the
policy at issue in this lawsuit. That portion of the OM
states as follows:
Inmates: Obtaining Allowed Personal Property
4. Possession of Books:
a. Hardcover books for individual or group
use are not allowed. All books, regardless of purpose or
subject matter, must be softcover. All hardcover books that
are already inside the institution may remain, but no new
hardcover books will be allowed.
b. Only new books sent to an inmate directly
from a centralized retailer, warehouse, distributor,
dealership, or publisher are allowed. New books not purchased
in this manner will not be accepted.
c. Family members, friends, visitors, or
others are not permitted to send books to an inmate.
defendants in this lawsuit do not contest that they
understand a prisoner has a clearly established right to
receive books and periodicals in the mail free of censorship,
unless the materials are excluded or rejected pursuant to
policies that are reasonably related to legitimate
penological interests. See responses to requests for
admissions (Docket 126-1, p. 2). The defendants assert this
OM is implemented to promote security and order within the
SDSP. Defendant Mousel's two affidavits (Docket Nos. 57
and 85) and deposition testimony make clear the policy is not
enforced as written. Specifically, while it is true that only
new books are allowed, it is not true that only
purchased books are allowed.
Mousel first began his duties as a property officer, he was
taught that all donated books were allowable so long
as they were new (and not in violation of other penitentiary
rules, such as the pornography policy). Mr. Bell asserts the
exhibits he has presented to the court (Docket Nos. 77-4
through 77-11) represent property receipts for books he was
allowed to receive in 2015 and 2016 that were donated books.
Docket 77, ¶ 5.
point in time, however, this informal exception to the policy
was modified so that prisoners are allowed to receive donated
books only if they are new books received from a religiously
affiliated organization. All other books coming into the
SDDOC facilities intended for individual inmates must be
purchased. Mousel affidavit, Docket 85, ¶¶ 6-12;
Mousel deposition, p. 24.
responses to Mr. Bell's requests for admissions (Docket
126-1) the defendants contradict the application of OM
2.3.C.4 as it was explained by defendant Mousel during his
deposition. Specifically, Warden Young avers in the
defendants' requests for admissions that donated books,
even if they are new, are allowed into the facility only if
they are received directly from a centralized retailer,
warehouse, distributor, dealership or publisher, but donated
books cannot be given directly to the inmate. Instead, the
donated new books are placed in the prison library or school.
Id. Books that are donated to religious groups are
placed in the chapel libraries where they are available to
all inmates. Id. Warden Young further explains that
family and friends may purchase books for an inmate, but the
books must be purchased through the bookstore or publisher
and sent directly to the inmate from those entities.
Warden Young asserts that allowing inmates to receive books
from “unidentified sources” outside the
institution would create “serious security and
administrative problems, ” (Young affidavit, Docket 56,
¶ 8) there is no evidence in this lawsuit that Mr.
Bell's rejected books were from “unidentified
sources.” The rejected shipment in February, 2016, came
from Parallax Press (Docket 1-1, pp. 46), and other rejected
shipments came from the Prison Literature Project, c/o Bound
Together Bookstore in November, 2015 (Docket 1-1, p. 17) and
February, 2016 (Docket 1-1, p. 52). In his affidavit, Mr.
Bell avers that, at least as to the Parallax Press books,
they were new books. See Docket 49. It is unclear
whether the books from Bound Together Bookstore were new,
though inmates have the option to specify they wish to
receive exclusively new books from this source if their
institution only allows new books (see Docket 1-1,
p. 36) and Mr. Bell claims he requested to receive
exclusively new, softcover books from this free book program.
See Docket 52-2.
Bell asserts his books were rejected because they were
donated from a non-religious source. In his
deposition, defendant Mousel conceded that if a book is
donated instead of purchased, it is automatically deemed
“used” rather than “new” for purposes
of OM 2.3.C.4. Mousel deposition at pp. 86-87. Mr. Bell
further notes that though OM 2.3.C.4 is silent regarding
religion, in practice a religious group sending a book with
religious content may send inmates free books, while other,
non-religious groups may not send inmates free books. Mousel
deposition at 69-70. This is true whether the non-religious
group wishes to send books whose content is religious or
non-religious. Mousel deposition at 70, 72, 74-75.
Bell, who asserts he is Buddhist, explains the defendants
rejected a book sent to him (“Past Lives, ”)
using different criteria than were being applied to Christian
texts coming into the institution at that same time.
See Docket 1-1 at 44; Mousel deposition at 69-70;
Docket 1-1 at 44, 53-54. Mr. Bell was informed that the book
“Past Lives” was rejected because it was deemed
not a new book received directly from a dealership,
publisher, or bookstore. Docket 1-1, at p. 45. But, Mr. Bell
argues, books received during this same time from Christian
organizations were routinely accepted, including books not
sent directly from a dealership, bookstore or publisher. See
Docket 1-1, p. 60.
have not articulated what heightened security and
administrative problems are presented by donated new
books versus purchased new books whose source is a
non-religious centralized retailer, warehouse, distributor,
dealership, or publisher. In his deposition, defendant CO
Mousel attempted to explain that it is “less
likely” that contraband would be smuggled into the
institution though new books that are donated by a religious
source than new books donated by a non-religious source.
Mousel deposition at 91-92. No. defendant has offered any
reasoning whatsoever behind the theory that contraband is
more likely to be smuggled through a donated, new
paperbackbook from any non-religious source that is
otherwise acceptable pursuant to OM 2.3.C.4 (in other words,
a centralized retailer, warehouse, distributor, dealership,
or publisher) than from a religiously affiliated one.
affidavit (Docket 56), Warden Young explains he is aware of
past instances in which contraband was smuggled into the SDSP
through used books. Id. at ¶ 10. Warden Young
does not claim contraband has been smuggled in to a South
Dakota DOC facility through new, donated books. In fact,
Warden Young explains that new, donated books are placed in
the prison chapel and library for all inmates to enjoy.
Docket 126-1, p. 4. Warden Young also avers it would be
burdensome for prison staff to inspect books from sources
other than publishers, dealerships, or distributors. Docket
56 at ¶ ¶11, 14-15. Neither Warden Young nor any of
the other defendants have explained why new, donated
books that originate from publishers, dealerships, or
distributors are more burdensome on prison staff to inspect
than new, purchased books that originate from
publishers, dealerships, or distributors. Likewise, neither
Warden Young nor any of the other defendants have explained
why donated new books from a religious source are actually
less likely to contain contraband than donated new books from
non-religiously affiliated publishers, dealerships, or
Count 2: First Amendment Claim (Policy
22, 2015, the South Dakota DOC issued a revised pornography
policy (Policy 1.3.C.8-Pornography). The policy prohibits the
purchase, possession, attempted possession and manufacturing
of pornographic materials by offenders housed in South Dakota
DOC institutions. Section III of the policy contains
definitions and states as follows:
Includes books, articles, pamphlets, magazines, periodicals,
publications or materials that feature nudity or
“sexually explicit” conduct. Pornographic
material may include books, pamphlets, magazines,
periodicals, or other publication material that features or
includes photographs, drawings, etchings, paintings, or other
graphic depictions of nudity or sexually explicit material.
“Nudity” means a pictorial or other graphic
depiction where male or female genitalia, pubic area,
buttocks, or female breasts are exposed. Published material
containing nudity illustrative of medical, educational or
anthropological content may be excluded from this definition.
“Sexually explicit” includes written and/or
pictorial, graphic depiction of actual or simulated sexual
acts, including but not limited to sexual intercourse, oral
sex or masturbation. Sexually explicit material also includes
individual pictures, photographs, drawings, etchings,
writings or paintings of nudity or sexually explicit conduct
that are not part of a book, pamphlet, magazine, periodical
or other publication.
pertinent to the issues in this lawsuit is Section IV of the
Purchase, Possession and/or Attempted Possession
of Pornographic Material:
A. Any pornographic material is considered contraband.
2. Institutional Guidelines:
A. Each institution's Warden or Superintendent will
ensure procedures are in place to prevent pornographic
material from being brought into an institution(s) under
their authority. Such procedures will encompass at a minimum:
1. Prevention of the introduction or movement of pornographic
material through correspondence or visits (See DOC policies
1.5.D. 1 Inmate visiting, 1.5.D.2 Juvenile Visitation and
Telephone Contact and 1.5.D.3 Offender Correspondence).
a. All incoming and outgoing correspondence or publications
depicting pornography or containing pornographic material
will be rejected (See DOC policy 1.5.D.3 Offender
than receiving a copy of this pornography policy, prison
staff do not receive any training on how to apply it. The
same is true for OM 2.3.C.4. Defendants' response to
Interrogatories at ¶ 5; Mousel deposition at pp. 16-17;
Moisan deposition at pp. 11-12. The pornography policy is
“all or nothing, ” meaning if any portion of a
book or magazine offends the policy, the entire book or
magazine is rejected. Mousel deposition at pp. 43-44.
exceptions to the pornography policy are: nudity illustrative
of medical, educational or anthropological content.
See above. Personnel charged with applying these
exceptions, however, could not articulate what they meant
with the exception of anthropological content. Moisan
deposition at p. 18; Mousel deposition at pp. 41-42; 78. CO
Moisan testified she has been employed by SDSP for eleven
years and has never applied any of the exceptions. Moisan
deposition at pp. 17, 22. As far as she is aware, if a
publication contains nudity, it is not allowed, period.
Id. at pp. 25-26. She believes this is the
interpretation of the policy which is endorsed by her
prison staff who determine whether the enumerated exceptions
to the policy should apply do not consider any individual
characteristic of the recipient (course of study, interest,
intellectual pursuit) to determine whether the exceptions
should apply. Mousel deposition at p. 44.
February 29, 2016, a magazine Mr. Bell had ordered (the May,
2016, issue of Military History) was rejected by the
prison mailroom staff. The magazine was rejected because it
contained material that was deemed sexually explicit. Docket
1-1, p. 32; Docket 89, ¶ 33. Specifically, the magazine
contained (on page 25) a reproduction of a painting of a
Turkish battle scene that includes a depiction of a
bare-breasted woman. Docket 109-15. The material within the
magazine which was deemed contrary to Policy 1.3.C.8 was a
copy of a painting of a group of distressed people lying on
the battlefield, in what appears to be the aftermath of a
battle. Id. One of the people was a bare-breasted
woman holding a small child. Id.
Bell grieved the rejection of this magazine, and argued it
did not contain sexually explicit material because “any
kid can buy this magazine.” Docket 1-1, p. 35. His
grievance was denied based upon the language of policy
1.5.D.3. Docket 1-1, p. 34. Mr. Bell now asserts
the drawing contained within the May, 2016, Military
History magazine should have come within one of the
exceptions to the definition of “nudity” within
Policy 1.3.C.8, or that prison personnel who screened the
magazine should have at least considered the exceptions as
applied to the May, 2016, Military History magazine
before rejecting it outright. He did not, however, make this
claim during the prison grievance process. Docket 1-1, pp.
defendants assert this drawing (Docket 109-15), if allowed
within the SDSP, would in all likelihood find its way into
the hands of inmates who are sex offenders, because inmates
have been known to barter pornographic materials in the past.
Young affidavit, Docket 56, ¶ 28. Mr. Bell disputes as
wholly conclusory and speculative Warden Young's claim
that such a drawing would be bartered into the hands of a sex
offender. Mr. Bell questions this conclusion because the
document in this issue of Military History is a
historic period drawing, and the defendants have presented no
evidence that such a drawing would likely be bartered as
Mr. Bell first filed his complaint in this lawsuit, the
defendants have continued to deny him access to periodicals
and at least one book, based on Policy 1.3.C.8. For example,
in June, 2017, defendants denied Mr. Bell's receipt of
the July/August issue of National Geographic
History. CO Moisan determined an image on page 73 of
that magazine was sexually explicit. The page in question was
a picture of a statuary of Queen Nefertari, an Egyptian
monarch from the 16th century B.C. that is currently housed
in the Lourvre in Paris, France. The statuette shows an adult
female with bare breasts. Attachment to Hagen affidavit,
Docket 126-7. After this magazine was rejected, Mr. Bell
filed a request for administrative remedy, explaining that he
believed the magazine should be exempt from Policy 1.3.C.8
because of its anthropological and educational content.
August, 2017, another issue of National Geographic
History magazine was rejected from Mr. Bell's
incoming mail. Mr. Bell filed an informal resolution request
stating his belief that this rejection was in retaliation for
his lawsuit. Docket 126-8.
August 28, 2017, defendant Mousel rejected another incoming
parcel of mail intended for Mr. Bell. This parcel was a book
entitled Special Operations Force Medical Handbook.
The ground stated for rejecting this book was that it
contained nudity. The front cover of the book shows Da
Vinci's Vitruvian man, and there are medical diagrams of
the human anatomy (including male genitalia) in the text of
the book. Docket 126-9.
August 29, 2017, Corporal Miller-Hunhoff (a non-party to this
suit) denied Mr. Bell receipt of the November, 2017, issue of
Military History on the grounds that page 60 was
sexually explicit. Docket 126-10.
defendants maintain a document entitled “inter-facility
publications rejection log” that tracks the incoming
publications that are rejected from the mailroom. Docket
126-11. This document tracks the name of the publication, the
date or issue of the publication, the reason it was rejected,
the facility, and in some instances, the officer who rejected
the item. Id. Mr. Bell notes that before he started
this lawsuit in June, 2016, no issues of National
Geographic History were rejected, but after he started
this lawsuit, three issues of National Geographic
History were rejected. See Docket 126-11. Mr. Bell also
notes that the November, 2017, issue of Military
History magazine which was rejected in August, 2016, is
not noted in the publication rejection log. Docket 126-11.
Bell also asserts the Bible has been exempted from the plain
language of Policy 1.3.C.8 even though the Bible contains
written passages that are “sexually explicit” as
that term is defined in the Policy. See Moisan
deposition at p. 29-30 (discussing Genesis 38:8-10, which
describes masturbation). Specifically, Mr. Bell asserts the
Bible is allowed within SDSP even though CO Mousel
acknowledged it should not be if it contains a written
description of masturbation, under Policy 1.3.C.8. Mousel
deposition at p. 57; Moisan deposition at 29. CO Moisan
testified that a written description of masturbation is
“always” sexually explicit. Moisan deposition at
p. 23. Yet, the Bible is not excluded from SDSP institutions.
Count 3: Retaliation Claim
December, 2015, Mr. Bell was notified during the pendency of
the appeal of his 2014 lawsuit that he would not be allowed
to receive two donated books from Parallax Press. The reason
cited for the rejection of these books was that their receipt
by him violated a “prohibited act or any other rule,
regulation or directive governing the DOC or this
facility.” The policy cited by the defendants for this
rejection of donated books in December, 2015, is OM 2.3.C.4.
Mr. Bell, however, has provided the court with property
receipts (Docket Nos. 77-4 through 77-11) which he avers are
copies of receipts for books he previously received in prison
through the mail that were donated books-all while the very
same policy was in effect. See Docket 77,
Bell also directs the court's attention to the affidavit
and deposition testimony of defendant CO Craig Mousel. Mr.
Mousel has submitted two affidavits and given a deposition in
this lawsuit. See Docket 57 (first affidavit);
Docket 85 (second affidavit); and Docket Nos. 126-3, 109-16
(deposition excerpts). CO Mousel explained that OM 2.3.C.4
has not been consistently applied during his tenure.
when CO Mousel began his duties as property officer at the
SDSP, he was under the impression that there was an unwritten
“exception” to OM 2.3.C.4. Mousel deposition, p.
22-24, 65. The exception was, that if the non-purchased
(donated) book which was sent to the inmate was (or at least
looked) new, it could be accepted. Id. Even though
that practice did not square with the policy as it was
written, CO Mousel testified he did not know why things were
done that way, but “that's the way it was.”
Mousel deposition, p. 29. CO Mousel testified, however, that
many times he could not discern whether incoming books were
purchased or donated. Id. at p. 31. Regarding the
property receipts that Mr. Bell placed into evidence, CO
Mousel testified that he could not tell whether those books
were purchased or donated. Id. Regarding the program
through which many of the donated books were previously
received, CO Mousel explained that many of the books that
arrived at the prison through that program looked “beat
up and used, ” but many looked as if they had
“never been opened.” Id. at p. 14. His
practice was to allow the ones that looked new, and reject
the ones that looked used. Id. Even when books are
purchased, however, there is not always a receipt enclosed
when they arrive in the mailroom definitively indicating the
book has been purchased. Id. at p. 32.
point in time, however, that unwritten exception narrowed
further so that publishers and other prison donation programs
in general could no longer donate new books to prisoners.
Instead, only religiously affiliated groups could donate new
books to prisoners. Id. at 24, 67. The rationale
offered by CO Mousel for this restriction on donated new
books is that contraband might be smuggled in with donated
books. Mousel deposition at 91. Mousel asserts this is less
likely to happen if the entity donating the book is
religiously affiliated. Id. at 92.
Mousel's first affidavit (Docket 57) was submitted in
November, 2016. At that time, he had been the supply officer
for approximately three years. Id. at ¶ 1. In
his deposition, CO Mousel explained that when he first
started as the supply officer, he was trained by Officer
Hanson, so he (Mousel) did things the same way Officer Hanson
did. Mousel deposition at p. 65. Later, when an inmate
complained, CO Mousel inquired to Deputy Warden Dreiske about
whether the policy was being implemented correctly.
Id. at p. 14; Mousel affidavit (Docket 85) at
¶¶7-12. Deputy Warden Dreiske informed CO Mousel
that incoming books must be purchased. Mousel deposition at
p. 14. The policy was informally modified again to allow
donated new books, but only if the books came from a
religiously affiliated source. Id. During his
deposition, CO Mousel estimated that this informal policy
change occurred in September, 2016. Mousel deposition, p. 67
(Docket 109-16, p. 9).
defendants agree that they understand it is a violation of
prison policy, as well as the terms of their employment, to
refuse to process an inmate's grievance form. Response to
request for admissions (Docket 126-1) at p. 5). They do not
agree, however, that the prison grievance procedure, in and
of itself, confers any substantive rights upon Mr. Bell.
Id. The defendants also agree that it is a violation
of prison policy to induce or direct other inmates to
threaten or harass Mr. Bell or to knowingly allow such
Mr. Bell asserts prison officials have retaliated against him
as a result of his 2014 lawsuit by denying him access to
“kite” forms which are required for him to file
prison grievances, Mr. Bell's institutional file reveals
he filed over fifty grievances between April, 2016, and
April, 2017. Maturan affidavit, Docket 112, ¶ 4. Many of
the grievances Mr. Bell has filed consist of his complaint
that he has not been properly given grievance forms.
Id. ¶ 5. On at least one of these occasions,
the staff member in question reminded Mr. Bell that he should
not file frivolous informal resolution requests. Id.
at ¶ 7. On other occasions, Mr. Bell asserts staff
members either tried to dissuade him from filing grievances
or told him to stop filing grievances. Docket 112,
¶¶ 8-13. While the prison staff interpret these
instances and attempts to resolve Mr. Bell's grievances
at the lowest possible level, Mr. Bell interprets them as
attempts to intimidate him or prevent him from filing
grievances at all. Docket Nos. 109-1 through 109-8.
incident which Mr. Bell interprets as retaliation against him
by staff is the aftermath of an altercation which occurred
between Mr. Bell and inmate Gerald Dismounts Thrice.
According to prison staff, verbal exchanges and arguments
between inmates are commonplace and do not usually escalate
to physical altercations. Flick affidavit, Docket 114, ¶
6. On the date in question (February 1, 2017), Mr. Bell and
Mr. Dismounts Thrice engaged in a physical altercation.
Senior Correctional Officer Randy Flick (not a party to this
lawsuit) observed Mr. Bell and Mr. Dismounts Thrice
“having words” in the “chow line” on
that date. Id. at ¶ 4. The prison personnel on
the scene were not previously aware of any problems between
Mr. Bell and Mr. Dismounts Thrice. Id. at ¶ 7.
Mr. Bell initiated the physical altercation between the two
men, and the prison staff ordered them to stop. Id.
¶ 9. When Mr. Bell and Mr. Dismounts Thrice did not stop
fighting, SCO Arop ran into the dining hall and brought
inmate Dismounts Thrice to the ground to stop the
altercation. Id. at ¶ 10. The altercation
lasted only a few seconds. Id. at ¶ 11. Both
inmates were charged with disciplinary write-ups and moved to
the Special Housing Unit (SHU) as a result of the incident.
Id. at ¶ 12.
to policy, Mr. Bell was placed in a holding cell in the SHU
and provided with a security gown. Arop affidavit (Docket
115) at ¶ 9. Mr. Bell refused to wear the security gown
he was provided. Id. at ¶ 10. SCO Arop asked
Mr. Bell to wear the security gown so the nurse could check
on him, but Mr. Bell repeatedly refused. Id. at
¶ 11-14. As a result of his refusal to wear the security
gown, Mr. Bell was charged with two more disciplinary
write-ups for conduct which disrupts or interferes with the
security or good order of the institution or interfering with
a staff member in the performance of his or her duty and with
having unsolicited contact or making suggestive remarks or
gestures. Id. at ¶¶ 15-16.
Bell was seen by nursing staff, assessed, and though he had
sustained facial injuries, the bleeding had stopped and Mr.
Bell denied he had lost consciousness, that he felt nauseous,
or that he had vomited. Smythe affidavit (Docket 110), ¶
6. His pupils were unequal but reactive to light and his
neurological signs were otherwise normal. Id. at
¶ 7. Nursing staff received medical orders over the
phone to observe Mr. Bell for 4 hours. Id. ¶
11. Mr. Bell was instructed to alert the nursing staff to any
changes in his condition before he was released from Health
Services. Id. at ¶ 12.
Count 4: Equal Protection Claim
Bell notes that though the text of OM 2.3.C.4 has not
changed, the defendants have changed how that policy has been
applied. Mousel deposition at p. 29-30. Mr. Bell also asserts
the defendants' statements about how they determine
whether a publication is acceptable pursuant to OM 2.3.C.4
are contradictory. Compare response to interrogatory
(Docket 126-2 at p. 8) to Mousel deposition at p.
24. Mr. Bell argues that though the defendants claim the
policy is facially neutral (Mousel affidavit, Docket 57,
¶ 21), the people who actually apply the policy consider
both the content of the book and the identity of the party
who sent it in making the determination regarding whether the
inmate will be allowed to receive the book. Mousel deposition
at p. 34.
allegations in the amended complaint regarding the Equal
Protection claim mirror those which are recited in the
retaliation claim. In other words, in support of his class of
one Equal Protection claim, Mr. Bell alleges he was treated
in a disparate manner when the defendants (1) decided to
reject Mr. Bell's books and magazines (the court
therefore concludes this equal protection claim is made
against defendants Mousel and Moisan); (2) decided to place
him in a holding cell at the JPA with only a security gown to
wear after the February 1, 2017, “chow hall”
fight-the court therefore understands this claim to be made
against CO Arop and Major Benting, who are not parties to
this lawsuit; (3) were deliberately indifferent to his
medical needs after the February 1, 2017, “chow
hall” fight-the court understands this claim to be made
against LPN April Smythe, who is not a party to this lawsuit;
(4) failed to provide him with grievance forms
“kites” when requested by him-the court therefore
understands this claim to be made against UC Steinecky, who
is not a party to this lawsuit; and (5) Mr. Bell further
asserts that to the extent any defendant was not personally
involved in these decisions, such defendant is nonetheless
liable because he or she knew about the wrong and ...