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Bell v. Young

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

June 27, 2018

SHANE DOUGLAS BELL, Plaintiff,
v.
DARIN YOUNG, Warden, individual and official capacity; JENNIFER DREISKE, Deputy Warden, individual and official capacity; DENNIS KAEMINGK, Secretary of Corrections, individual and official capacity; BOB DOOLEY; Director of Prison Operations, individual and official capacity; CRAIG MOUSEL, Correctional Officer, individual and official capacity; and SCO MOISAN, individual and official capacity, Defendants.

          MEMORANDUM OPINION AND ORDER (DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, DOCKET #108)

          VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         This 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. § 636(c).

         FACTS

         Pursuant 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 material facts.

         A. Parties

         Plaintiff, 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.

         Defendant Darin Young is the Warden of the SDSP. Defendant Young has been the Warden of the SDSP since May 24, 2013.

         Defendant Jennifer Dreiske is the Deputy Warden at the SDSP and has served in that position since March 26, 2013.

         Defendant Denny Kaemingk is the South Dakota Secretary of Corrections and has served in that position since May 2, 2011.

         Defendant 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).

         Mr. Dooley had served as the Director of Prison Operations for the SDDOC since June, 2013.[1]

         Defendant Moisan is a Senior Correctional Officer at the SDSP.

         Defendant 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.

         Mr. Bell brings this lawsuit against all defendants in both their official and individual capacities.

         B. Mr. Bell's Amended Complaint

         Mr. 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.

         In 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.

         This 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.

         Alternatively, 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.

         Mr. 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. Id.

         In 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.

         Alternatively, 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.

         Mr. 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.

         In 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 retaliatory motive.

         Mr. 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.

         Mr. 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.

         Mr. 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.

         In the 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.

         In 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.

         Mr. 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.

         In 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.

         Again, 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 retaliation claim.

         C. Claim-Specific Facts Supported by the Record

         The 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.[2]

         1. Count 1: First Amendment Claim (Right to Receive Mail- Policy OM 2.3.C.4)

         At the 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
**
G.
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.

         The 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.

         When CO 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.

         At some 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.

         In the 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. Id.

         Though 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.

         Mr. 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.

         Mr. 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.

         Defendants 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 paperback[3]book 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.

         In his 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 distributors.

         2. Count 2: First Amendment Claim (Policy 1.3.C.8-Pornography)

         On May 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:

III Definitions:
Pornographic Material:
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:
“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:
“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.

         Also pertinent to the issues in this lawsuit is Section IV of the policy:

         IV PROCEDURES:

         1. 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 Correspondence).

         Other 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.

         The 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 supervisors. Id.

         The 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.

         On 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.[4] 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.

         Mr. 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.[5] 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. 16, 35.

         The 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 pornography.

         Since 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. Docket 126-6.

         In 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.

         On 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.

         On 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.

         The 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.[6] 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.

         Mr. 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.

         3. Count 3: Retaliation Claim

         In 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, ¶¶ 5-7.

         Mr. 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.

         Specifically, 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.

         At some 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.

         Defendant 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).

         The 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 behavior. Id.

         Though 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.

         Another 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.

         Pursuant 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.

         Mr. 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.

         4. Count 4: Equal Protection Claim

         Mr. 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.

         The 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 ...


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