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Shaw v. Kaemingk

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

March 27, 2019

JAMES ELMER SHAW, Plaintiff,
v.
DENNIS KAEMINGK, SECRETARY OF CORRECTIONS; INDIVIDUAL AND OFFICIAL CAPACITY; ROBERT DOOLEY, DIRECTOR OF PRISON OPERATIONS; INDIVIDUAL AND OFFICIAL CAPACITY; DARIN YOUNG, WARDEN; INDIVIDUAL AND OFFICIAL CAPACITY; JENNIFER DRIESKE, DEPUTY WARDEN; INDIVIDUAL AND OFFICIAL CAPACITY; JENNIFER STANWICK-KLEMIK, DEPUTY WARDEN; INDIVIDUAL AND OFFICIAL CAPACITY; TROY PONTO, ASSOCIATE WARDEN; INDIVIDUAL AND OFFICIAL CAPACITY; ARTHOR ALCOCK, ASSOCIATE WARDEN; INDIVIDUAL AND OFFICIAL CAPACITY; DAVID LENTSCH, UNIT MANAGER; INDIVIDUAL AND OFFICIAL CAPACITY; DERRICK BIEBER, UNIT MANAGER; INDIVIDUAL AND OFFICIAL CAPACITY; AL MADSEN, UNIT MANAGER; INDIVIDUAL AND OFFICIAL CAPACITY; JOSH KLEMIK, UNIT MANAGER; INDIVIDUAL AND OFFICIAL CAPACITY; TAMMI MERTINS-JONES, CULTURAL ACTIVITIES COORDINATOR; INDIVIDUAL AND OFFICIAL CAPACITY; ELIZABETH VITETTA, UNIT COORDINATOR; INDIVIDUAL AND OFFICIAL CAPACITY; BRITINEY ULMER, UNIT COORDINATOR; INDIVIDUAL AND OFFICIAL CAPACITY; MELISSA MATURAN, ADMINISTRATIVE REMEDY COORDINATOR; INDIVIDUAL AND OFFICIAL CAPACITY; STEVE BAKER, MAJOR; INDIVIDUAL AND OFFICIAL CAPACITY; LINDA MILLER-HUNHOFF, MAIL SUPERVISOR; INDIVIDUAL AND OFFICIAL CAPACITY; SHARRON REIMANN, MAILROOM; INDIVIDUAL AND OFFICIAL CAPACITY; JORDAN STOREVIK, MAILROOM; INDIVIDUAL AND OFFICIAL CAPACITY; NICK ANDERSON, CORRECTIONAL OFFICER, SDSP; PRESTON PERRETT, CORRECTIONAL OFFICER; INDIVIDUAL AND OFFICIAL CAPACITY; JUDY JACOBS, CORRECTIONAL OFFICER; INDIVIDUAL AND OFFICIAL CAPACITY; LISA FRASIER, CORRECTIONAL OFFICER; INDIVIDUAL AND OFFICIAL CAPACITY; NICK REDDMAN, TEACHER; INDIVIDUAL AND OFFICIAL CAPACITY; DR. MARY CARPENTER, MD; INDIVIDUAL AND OFFICIAL CAPACITY; ER REGIER, MD; INDIVIDUAL AND OFFICIAL CAPACITY; BRAD ADAMS, PA-C; INDIVIDUAL AND OFFICIAL CAPACITY; JESSICA SCHREURS, RN; INDIVIDUAL AND OFFICIAL CAPACITY; HEATHER BOWERS, RN; INDIVIDUAL AND OFFICIAL CAPACITY; UNKNOWN DEPARTMENT OF HEALTH/CORRECTIONAL HEALTH SERVICE (DOH/CHS) EMPLOYEES, INDIVIDUAL AND OFFICIAL CAPACITIES; CBM CORRECTIONAL FOOD SERVICES, INDIVIDUAL AND OFFICIAL CAPACITIES; JOHN TWEIRWEILLER, CBM DISTRICT MANAGER; INDIVIDUAL AND OFFICIAL CAPACITY; UNKNOWN CBM EMPLOYEES, INDIVIDUAL AND OFFICIAL CAPACITIES; DELMER WALTER, CONTRACTED DOC ATTORNEY; INDIVIDUAL AND OFFICIAL CAPACITY; AND MARK BIDNEY, CONTRACTED DOC PARALEGAL; INDIVIDUAL AND OFFICIAL CAPACITY; Defendants.

          ORDER DENYING CBM DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Plaintiff, James Elmer Shaw, is an inmate at the South Dakota State Penitentiary (SDSP) in Sioux Falls. Shaw filed a pro se civil rights lawsuit under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA). The court screened Shaw's complaint under 28 U.S.C. § 1915A and directed service. CBM Food Services, John Tweirweiller, and unknown CBM Food Service employees (CBM defendants) now move for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Docket 85. Shaw resists the motion. Docket 112. For the following reasons, the court denies the motion.

         FACTUAL BACKGROUND

         Viewing the evidence in the light most favorable to Shaw, the non-moving party, the facts are:

         Shaw alleges several violations of his civil rights relating to the practice of his religion occurring at both SDSP and MDSP. Docket 1 ¶ 44. Shaw was an inmate at the Mike Durfee State Prison (MDSP) in Springfield, South Dakota from approximately April 2017 to June 2018. Id.; Docket 66. Prior to April 2017 and after June 2018, Shaw was incarcerated at the SDSP. Docket 1 ¶ 44.

         Shaw's religion, Dorcha Cosàn (DC), follows a strict code of ethics called “The Nine Laws of Dorcha Cosàn” (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. Law II of DC mandates adherence to a religious diet. Docket 112 at 7. Shaw explains the diet as follows:

I must purify my body by eating all natural, farm fresh, organic fruits and vegetables (they must be consumed raw, boiled, stewed or juiced) and grass fed, no-growth-hormone meats four (4) times daily (and between meals); I am unable to consume any foods with chemicals or artificial additives; DC calls this the ‘Before Christ' diet, in essence, if my ancestors before Christianity could not fish it, hunt it, grow and harvest it, it is repugnant and violates my geise; All questionable ingredients are forbidden; I am unable to consume any beverages that are not fresh water from the spring (or boiled of impurities), all natural, organic herbal teas, whole “organic” milks (goat or bovine), freshly squeezed fruit and vegetable beverages four (4) times daily, with every meal (and between meals); All beverages must be made with all natural organic ingredients. I am unable to consume any liquids with chemical or artificial additives.

Id. When unable to consume food in accordance with Law II, Shaw “believes he is defiling himself by doing something that is completely forbidden by his religion.” Docket 1 ¶ 71. Law II of DC also mandates that Shaw celebrate his holy day called Sabbats and Ebats with “Ritual and Feast.” Id. ¶ 74.

         CBM, a company contracted by the South Dakota Department of Corrections (DOC), provides all meals to inmates incarcerated at the SDSP and MDSP. Docket 85 at 2. CBM also provides meals to inmates who require a special diet due to their religious beliefs. Id. CBM does not provide Shaw a special diet due to his religious beliefs. Dockets 1 ¶ 69; Docket 112 at 2. When Shaw inquired about the denial of special diets for DC members, an unknown CBM employee stated, “ ‘If you don't like it don't eat anymore.' ” Docket 1 ¶ 70. Shaw is unable to follow his religious diet requirements. Id. ¶ 73.

         CBM provides commissary products to inmates. Docket 85 at 2. CBM makes available certain products to allow religious inmates to conform to their sincerely held religious beliefs. Id. CBM did not make available any products to allow Shaw to conform to his sincerely held religious beliefs. Docket 112 at 2. CBM defendants falsely advertised that their commissary products complied with Shaw's religious requests and that their commissary products were a particular name-brand, price, and quantity. Docket 1 ¶ 112. CBM employees replaced the name-brand products with cheaper, generic, smaller quantity, non-compliant products without posting the changes. Id. ¶ 113. And Shaw did not receive notice of the changes until his order was delivered. Id. ¶ 114. CBM employees refused to reimburse Shaw. Id.

         CBM has provided free special meals for mainstream religions on religious holidays. Id. ¶ 111. CBM provided Shaw celebratory meals. Id. ¶ 110. But these meals are the same as the main line general population meals. Id. And CBM raised the prices for a meal that is otherwise free. Id. On December 21, 2016, Shaw canceled the Yule Sabbat feast and celebration because CBM refused to allow Shaw to order “all natural” foods from Hy-Vee. Id. ¶¶ 124-26. Hy-Vee is an approved vender for the DOC. Id. ¶ 126. Hy-Vee has catered Buddhist, Jewish, and Muslim group meals. Id. ¶ 127.

         CBM allowed other religious groups to buy and receive donations from outside approved venders for religious or cultural gatherings. Id. ¶ 108. CBM defendants allowed other religions to purchase foods, commissary, and religious items from vendors other than CBM. Id. ¶ 117. This allowed other groups to comply with their dietary restrictions. Id. ¶ 108. CBM denied Shaw this ability. Id. Shaw can only purchase foods for religious gatherings and celebrations through CBM. Id. CBM also denied Shaw the ability to receive care packages from friends and family even though he is an indigent inmate. Id. ¶ 97.

         STANDARD ...


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