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Shaw v. Kaemingk

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

August 2, 2018

JAMES ELMER SHAW, Plaintiff,
v.
DENNIS KAEMINGK, ET AL., Defendants.

          ORDER GRANTING DEFENDANT GLOBAL TEL*LINK CORPORATION'S MOTION TO DISMISS

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         Plaintiff, James Elmer Shaw, is an inmate at the South Dakota Department of Corrections (DOC). Shaw filed a pro se civil rights lawsuit under 42 U.S.C. § 1983 against defendant Global Tel*Link Corporation (GTL). Docket 1. Shaw's First Amendment free exercise claim against GTL survived screening under 28 U.S.C. § 1915A. Docket 7 at 44. On November 28, 2017, the court directed service of Shaw's complaint. Docket 7. GTL moves to dismiss under Federal Rule of Civil Procedure 12(b)(6). Docket 40. For the following reasons, the court grants GTL's motion to dismiss.

         BACKGROUND

         As they relate to Shaw and GTL, the facts are as follows. Shaw was an inmate at the South Dakota State Prison (SDSP) in Sioux Falls, South Dakota, from 2004 to 2017. Docket 1 ¶ 44. In 2017, Shaw was transferred to the Mike Durfee State Prison (MDSP) in Springfield, South Dakota. Id. Shaw's religion, Dorcha Cosán (DC), follows a strict code of ethics called “The Nine Laws of Dorcha Cosán” (NLDC). Id. ¶ 57. By adhering to the NLDC, Shaw can attain Godhood, connect with the source of his spiritual path, and perform “true Magick.” Id. ¶¶ 58-60. DC requires Shaw to have constant access to thousands of books. Id. ¶ 62. In count one of his complaint, ostensibly under the Religious Land Use and Institutionalized Persons Act (RLUIPA), Shaw states a claim against several of the defendants for denying him access to books as mandated by DC and the NLDC. Id. ¶¶ 54, 62. GTL is not a defendant in count one.

         GTL is “a company contracted by the [Department of Corrections] to provide internet services to inmates within the [Department of Corrections].” Id. ¶ 42. In count two, Shaw's claim against GTL is styled as a “free exercise” claim. Id. at 15. Shaw states, “GTL has discriminated agains (sic) Shaw by denying Shaw the ability to receive music, books and games on a tablet because he is an indigent inmate. Shaw, Shaws (sic) friends and family are being punished for Shaw being poor.” Id. ¶ 98. Shaw states that, “[a]t all times relevant to this complaint, defendants acted or failed to act under the color of state law.” Id. ¶ 43.

         This court found that Shaw's free exercise claim was sufficiently pleaded to survive initial review under 28 U.S.C. § 1915. Docket 7 at 28.

         STANDARD OF REVIEW

         A court may dismiss a complaint “for failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In considering dismissal pursuant to Rule 12(b)(6), “the court must accept all well-pleaded allegations of the complaint as true, and all reasonable inferences therefrom must be construed favorably to the pleader.” McCormack v. Citibank, N.A., 979 F.2d 643, 646 (8th Cir. 1992) (citing Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986)). “The court may consider the pleadings themselves, materials embraced by the pleadings, exhibits attached to the pleadings, and matters of public record.” Mills v. City of Grand Forks, 614 F.3d 495, 497-98 (8th Cir. 2010) (citation omitted).

         The court may dismiss a complaint for failure to state a claim when the plaintiff fails to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Stating a claim that is facially plausible is a higher standard than pleading facts establishing a “sheer possibility” or a probability of misconduct. Id. Courts are not required to accept as true legal conclusions “couched as factual allegation[s]” contained in a complaint. Papasan v. Allain, 478 U.S. 265, 286 (1986).

         Pro se complaints, “ ‘however inartfully pleaded,' [are] held to ‘less stringent standards than formal pleadings drafted by lawyers.' ” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). Nonetheless, a pro se complaint must comply with the minimal requirements set forth in the Federal Rules of Civil Procedure, which specifically require pleadings to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although a pro se complaint need not contain detailed factual allegations, it must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A pro se complaint must “allege sufficient facts to support the claims advanced.” Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). The court is not required to “supply additional facts, nor will [it] construct a legal theory . . . that assumes facts that have not been pleaded.” Id. (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)). If the complaint does not contain these bare essentials, dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985)).

         DISCUSSION

         “[T]o state a claim for relief under § 1983, a plaintiff must allege sufficient facts to show ‘(1) that the defendant(s) acted under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right.' ” Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010) (quoting Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009)). “[Section] 1983 demands more than a simple claim that the [defendant] engaged in wrongful conduct and the [plaintiff was] deprived of constitutional rights. Indeed, to state a cause of action under § 1983, a plaintiff must plead facts that would tend to establish that the defendant's wrongful conduct caused the constitutional deprivation.” Id. at 851 (emphasis in original).

         I. State Actor

         First, Shaw must show that GTL acted under color of state law. In a § 1983 action, acting under the color of state law means that the defendant must “have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.' ” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). “The injury complained of must have been caused by the exercise of some right or privilege created by the state, by a rule of conduct imposed by the state, or by a person for whom the state is responsible.” Parker v. Boyer, 93 F.3d 445, 448 (8th Cir. 1996) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). The government's “ ‘[m]ere approval of or ...


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