United States District Court, D. South Dakota, Southern Division
ORDER GRANTING DEFENDANT GLOBAL TEL*LINK
CORPORATION'S MOTION TO DISMISS
E. SCHREIER UNITED STATES DISTRICT JUDGE
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.
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.
“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.
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.
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).
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).
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.
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).
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 ...