United States District Court, D. South Dakota, Southern Division
BRIAN E. KADER, Plaintiff,
DEPARTMENT OF CORRECTIONS, SUSAN JOHANNSEN, CLERK OF COURTS, THIRD JUDICIAL CIRCUIT, STATE OF SD, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; ROBERT DOOLEY, DIRECTOR OF PRISON OPERATIONS AND WARDEN, MIKE DURFEE STATE PRISON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JOSH KLIMEK, UNIT MANAGER, WEST CRAWFORD HALL, MIKE DURFEE STATE PRISON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; MANUEL DE CASTRO JR., ATTORNEY APPOINTED IN HABEAS ACTION IN SANBORN COUNTY, SOUTH DAKOTA; INDIVIDUALLY AND HIS OFFICIAL CAPACITY; JEFFREY LARSON, SANBORN COUNTY PROSECUTOR, WOONSOCKET, SOUTH DAKOTA, IN HIS OFFICIAL CAPACITY; JUDGE VINCE FOLEY, CIIRCUIT COURT JUDGE, THIRD JUDICIAL CIRCUIT, BROOKINGS, SD, IN HIS OFFICIAL CAPACITY; UNKNOWN STAFF, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY; AND UNKNOWN MAILROOM STAFF, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY; Defendants.
ORDER DIRECTING SERVICE IN PART AND DISMISSING
COMPLAINT IN PART
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Brian E. Kader, is an inmate at Mike Durfee State Prison
(MDSP) in Springfield, South Dakota. Kader filed a pro se
civil rights lawsuit under 42 U.S.C. § 1983. Docket 1.
The court screened Kader's original complaint under 28
U.S.C. § 1915A and dismissed it without prejudice.
Docket 11. Kader moved to amend his complaint, and the court
granted his motion. Docket 13; Docket 14. Kader filed an
amended pro se civil rights lawsuit under 42 U.S.C. §
1983 and a motion for reconsideration. Docket 15; Docket 16.
The court now screens Kader's amended complaint under 28
U.S.C. § 1915A, and for the reasons stated below, the
court dismisses Kader's complaint in part and directs
service in part. The court also denies Kader's motion to
relevant facts are set forth in the initial screening order
at docket 11. Kader's amended complaint includes the
addition of the following defendant: Mike Grossheusch
[sic] as the Mike Durfee State Prison Mailroom
Supervisor. Docket 15 ¶ 9. The amended complaint also
includes the addition of the following facts as alleged by
has “exhausted all available remedies.”
Id. ¶ 12. Kader adds to his cruel and unusual
punishment facts by alleging the showers at MDSP are moldy
and constantly wet. Id. ¶ 46. The overcrowding
in West Crawford hall is because the “building was
designed as a college dormitory” originally planned for
36 students but currently houses “66 inmates in the
same facility.” Id. ¶ 47. Shower
facilities have been limited now that West Crawford was made
handicap accessible. Id. ¶ 48. Laundry at MDSP
is returned to inmates “wet and unclean” as there
are not enough washing machines. Id. ¶ 49. When
inmates complained about their laundry being unclean, the
Department of Corrections did not fix the problem but
“began issuing brown boxers to hide urine and fecal
stains.” Id. ¶ 50. This did not make the
laundry clean. Id. Finally, Kader alleges that Mike
Grosshuesch, along with MDSP mailroom staff, censored his
subscription to Archeology magazine. Id.
court must accept the well-pleaded allegations in the
complaint as true and draw all reasonable inferences in favor
of the non-moving party. Schriener v. Quicken Loans,
Inc., 774 F.3d 442, 444 (8th Cir. 2014). Civil rights
and pro se complaints must be liberally construed.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation
omitted); Bediako v. Stein Mart, Inc., 354 F.3d 835,
839 (8th Cir. 2004). As a pro se plaintiff, the
court lowers the pleading standards, but the court “
‘will not supply additional facts, nor will [it]
construct a legal theory for plaintiff that assumes facts
that have not been pleaded.' ” Stone v.
Harry, 364 F.3d 912, 914 (8th Cir. 2004) (quoting
Dunn v. White, 880 F.2d 1188, 1197 (10th Cir.
1989)). Even with this construction, “a pro se
complaint must contain specific facts supporting its
conclusions.” Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985); Ellis v. City of
Minneapolis, 518 Fed.Appx. 502, 504 (8th Cir. 2013).
Civil rights complaints cannot be merely conclusory.
Parker v. Porter, 221 Fed.Appx. 481, 482 (8th Cir.
2007); Davis v. Hall, 992 F.2d 151, 152 (8th Cir.
complaint “does not need detailed factual allegations .
. . [but] requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). “If a plaintiff cannot make the
requisite showing, dismissal is appropriate.”
Abdullah v. Minnesota, 261 Fed.Appx. 926, 927 (8th
Cir. 2008) (per curiam); Beavers v. Lockhart, 755
F.2d 657, 663 (8th Cir. 1985). Under 28 U.S.C. § 1915A,
the court must screen prisoner complaints and dismiss them if
they are “(1) frivolous, malicious, or fail to state
a claim upon which relief may be granted; or (2) seek
monetary relief from a defendant who is immune from such
relief.” 28 U.S.C. § 1915A(b).
Motion for Reconsideration
initial matter, Kader moves this court to reconsider its
earlier motion dismissing his original complaint without
prejudice. Docket 16. Because Kader amended his complaint,
his motion for reconsideration is denied as moot.
amended complaint requests that “this court also treat
this action as a petition of habeas corpus.” Docket 15
¶ 67. The Supreme Court held in Heck v.
Humphrey, 512 U.S. 477 (1994) that a state prisoner
cannot use a § 1983 action to challenge his confinement.
“When ‘a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or
sentence' . . . § 1983 is not an available
remedy.” Skinner v. Switzer, 562 U.S. 521, 533
(2011) (quoting Heck, 512 U.S. at 487); see also
Abdullah, 261 Fed.Appx. at 927 (stating that if the
plaintiff cannot show the invalidity of his conviction or
sentence, dismissal is appropriate). Thus, this court will
not treat Kader's § 1983 action as a habeas corpus
alleges that defendants violated his First Amendment rights
by censoring his magazine subscriptions. Docket 15 ¶ 61.
He alleges “mailroom staff are able to censor any item
they want, ” and the censorship policy is “vague,
” allowing mailroom staff censorship to continue.
Id. ¶ 56. Specifically, Kader alleges the
Unknown Mailroom Staff and Mike Grosshuesch have wrongly
censored his subscription to Archeology magazine.
Id. ¶ 57. He also alleges Unknown Mailroom
Staff wrongly censored his subscription to Wired, a
computer technology magazine. Id. ¶ 56. Kader
alleges he was unable to view his magazines, “resulting
in monetary losses for his subscriptions.” Id.
Turner v. Safley, the Supreme Court held that prison
rules are constitutional if they are “reasonably
related to legitimate penological interests.” 482 U.S.
78, 89 (1987). Turner provided four factors to
determine whether a prison rule withstands scrutiny:
(1) whether there is a valid rational connection between the
regulation and the legitimate government interest it purports
to further; (2) whether the inmate has an alternative means
of exercising his constitutional right; (3) the impact that
accommodation of the inmate's right would have upon
others, including inmates as well as non-inmates; and (4) the
absence of a ready alternative to the regulation.
Ortiz v. Fort Dodge Corr. Facility, 368 F.3d 1024,
1026 (8th Cir. 2004). This standard applies to both incoming
and outgoing mail. Thongvanh v. Thalacker, 17 F.3d
256, 259 (8th Cir. 1994). “While prisoners retain their
constitutional rights, limitations may be placed on the
exercise of those rights because of the needs of the penal
system.” Kaden v. Slykhuis, 651 F.3d 966, 968
(8th Cir. 2011) (citing Turner, 482 U.S. at 84-85).
“[P]rison officials may lawfully censor prison mail
that is detrimental to the security, good order and
discipline of the institution.” Id. (citing
Thornburgh v. Abbott, 490 U.S. 401, 404 (1989)). To
decide whether a prison policy advances “a legitimate
penological interest, ” the court must consider all
four factors. Id. (quoting Turner, 482 U.S.
example, in Kaden, a South Dakota state prison
inmate alleged that the prison mailroom staff violated his
First Amendment rights by censoring his magazine
subscription. 651 F.3d at 967-68. The complaint was screened
and dismissed under § 1915A by the district court.
Id. at 968. The Eighth Circuit found Kaden's
allegations “sufficient to plausibly state a claim
under § 1983.” Id. at 969. The Eighth
Circuit found “a reasonable inference that SDSP's
policy was unconstitutionally applied to the censored
same is true here. Kader alleges that Grosshuesch and unknown
mailroom staff violated his First Amendment rights by
rejecting his magazines because they were sexually explicit.
Docket 15 ¶¶ 56-57. Kader alleges that the
magazines “are sold over the counter at many retailers
and do not contain sexually explicit material.”
Id. ¶ 57. Kader alleges that the Department of
Corrections policy defining “sexually explicit”
material is ambiguous and is “defined by the person in
the mailroom on any given day.” Id. Liberally