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Dale v. CBM Correctional Food Services

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

July 5, 2018

JAMES I. DALE, a/k/a James Irving Dale, Plaintiff,



         This case is a suit by a former prisoner charging a violation of 42 U.S.C. § 1983. The corporate Defendant and the two individual Defendants are not state employees. The two individual Defendants were, at the times applicable, employees of CBM Correctional Food Services (CBM). CBM provides food services to all South Dakota state correctional facilities. The facility in question is at Springfield, South Dakota, Mike Durfee State Prison (MDSP). The State claims that sovereign immunity excludes Plaintiff from seeking monetary damages against Defendants for any actions taken in their official capacity. It is also claimed that the individual Defendants were acting within the scope of their employment and that they are entitled to qualified immunity.

         Defendants have moved for Summary Judgment concerning the only remaining claim, the First Amendment under 42 U.S.C. § 1983 in Plaintiff James I. Dale's Second Amended Complaint. Mr. Dale was originally incarcerated with the Department of Corrections in 2001 and paroled to Minnesota in 2007. Due to a parole violation, Mr. Dale was returned to the South Dakota Department of Corrections in September 2013. Mr. Dale claims an inhibition to pursuing his Jewish faith in that he was fed food which was not kosher while incarcerated at MDSP. Mr. Dale was released from that prison on November 1, 2016. He was then incarcerated in Minnesota correctional facilities and was released from those institutions in March 2018. The Religious Land Use and Institutionalized Persons Act (RLUIPA) claims are not permitted against state officials in their individual capacities because the Spending Clause authority by which RLUIPA was enacted does not support an action against an official in his or her individual capacity. Van Wyhe v. Reisch, 581 F.3d 639, 655, n.6 (observing district court holding). See also, Jihad v. Fabian, 2011 WL 1641885 at *8 (D. Minn. Feb. 17, 2011) (RLUIPA does not permit claims against prison officials in their individual capacities because individual prison personnel do not themselves receive federal funding). Further, because the state did not waive its immunity from suit for monetary damages by accepting federal funds on the conditions set forth in the institutionalized persons section of RLUIPA, official capacity claims under RLUIPA are limited to injunctive relief. Sossamon v. Texas, 563 U.S. 277, 293-96, 131 S.Ct. 1651, 1663-65(2011); Van Wyhe, 581 F.3d at 655. The facts of record in this case through July 2015 are set forth in the Report and Recommendation from Magistrate Judge Duffy concerning the first Motion for Summary Judgment, Doc. 68. The subsequent filings of note for purposes of this third Motion for Summary Judgment are four Affidavits from persons who were prisoners at MDSP that worked in the prison kitchen, along with the Affidavits previously filed, which are summarized in the Report and Recommendation. (Doc. 68)

         Christian Thomas Mason stated that he worked for two years in the prison kitchen and that sometimes kosher pots and pans were cleaned with other non-kosher utensils and that CBM employees, unnamed, made cheese sandwiches on the burner reserved for kosher food.

         Frederick Maurice Montgomery claims the use of non-kosher spoons and pots but when he worked in the kitchen is not stated. In addition, he worked in the prison kitchen in Sioux Falls, not in MDSP in Springfield, South Dakota.

         Jerald J. Hufford claimed that CBM employees cooked food for themselves on the hot plate for kosher foods as did prison employees. (Doc. 100-4) Mr. Hufford worked in the MDSP kitchen or dining hall from December 17, 2013 until February 13, 2014. (Doc. 64-4)

         Jesus Torres Vela worked in the MDSP kitchen from 2008 through 2009 and again in 2013 and he claimed non-kosher spoons and pots were used with kosher food and that there was no CBM employee supervision.

         Defendant CBM Correctional Food Services is a corporation that provides all of the food services for the South Dakota State correctional facilities.

         Defendant Barry Schroeter was the Food Services Supervisor at MDSP from 2011 to October 2015. Defendant John Trierweiller was the Supervisor of CBM operations at all South Dakota Department of Corrections facilities and once Defendant Schroeter left CBM to go to another state institution at Yankton, South Dakota, Defendant Trierweiller then also became the Food Services Supervisor at MDSP, possibly as a position in addition to his overall responsibilities. While Defendant Schroeter was the Food Services Supervisor, he stated that inmate kitchen workers were constantly supervised by other CBM employees and staff members during the preparation and service of all meals at MDSP. He personally observed the preparation of meals in the kitchen and dining hall on a daily basis. That observation would have included the observation of the preparation of kosher meals. He would not have observed the preparation of each (breakfast, lunch, or dinner) kosher meal every day. While Schroeter was the Food Services Supervisor at MDSP, an assistant who had served as Assistant Food Service Director answered directly to him. In addition, several shift supervisors answered to both the Assistant Food Service Director and Schroeter. If any of these individuals received complaints from inmates, inmate kitchen workers, or other CBM employees, or DOC staff regarding preparation of the kosher meal they would have reported those complaints to Schroeter as the Food Service Director. Schroeter stated he received no such complaints that kosher utensils, pots, or pans were washed with the mainline utensils, pots, or pans. There was a complaint filed by Mr. Dale with MDSP DOC staff. The DOC staff talked with "kitchen staff regarding whether the kosher utensils were used to stir and serve non-kosher meals. Schroeter does not recall this complaint having been forwarded to him and he does not recall a conversation with DOC staff regarding that complaint.


         Official Capacity Claims

         Under Will v. Midrigan Department of State Police, 491 U.S. 58 (1989), state entities and officials are not subject to § 1983 liability in their official capacity for damages but they are subject to prospective relief. No. prospective relief is now available as Mr. Dale is no longer a prisoner. Accordingly, the official capacity claims against the three Defendants are dismissed. The reason for the dismissal is not Eleventh Amendment immunity as the Court does not reach that issue. If the Court did reach that issue, the result would be the same. The reason for the dismissal is the Will division of what a "person" is for purposes of § 1983 jurisdiction. If this case was now for prospective relief such as an injunction, then the Defendants would be "persons" for § 1983 purposes. But under Will the Defendants are not "persons" for § 1983 purposes when retrospective relief, i.e., damages, are sought.

         Individual Capacity Claims

         The Court considers CBM to be a "person" within the meaning of § 1983 actions. As a corporation, CBM is determined to be an individual or a person at least for First Amendment purposes in Citizens United v. FEC, 558 U.S. 310 (2010). Richardson v. McKnight, 521 U.S. 399 (1997) held that two prison guards who were the employees of the private corporation that had a contract with the state to manage a correctional center were not entitled to qualified immunity when they allegedly used excessive force on a prisoner causing him injury. In that holding, there were three caveats. The first was whether the defendants were exposed to § 1983 liability even though employed by a private firm. That question was remanded for determination pursuant to Luger v. Edmonson Oil Co.,457 U.S. 922 (1982). This Court determines under Luger v. Edmonson Oil Co. that the three Defendants in this case did act under color of state law. The second caveat was that the Richardson court "answered the immunity question narrowly, in the context in which it arose." Richardson at 413. The context under which Richardson arose was one in which a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertakes that task for profit and potentially in competition with other firms. The context in the present case is similar in that here CBM was providing the complete food service for the state penitentiaries in South Dakota with little oversight from the State as to the provision of those services, services that are provided in competition with other firms. The third caveat was that the decision of Wyatt v. Cole, 504 U.S. 158 (1992) did not foreclose the possibility that private defendants faced with § 1983 liability under Lugar could be entitled to an affirmative defense based upon good ...

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