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Shaw v. Kaemingk

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

March 29, 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 ALLCOCK, 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 EFFLING, 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 GRANTING IN PART AND DENYING IN PART STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING MISCELLANEOUS OTHER MOTIONS

          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). Docket 1. The court screened Shaw's complaint under 28 U.S.C. § 1915A and directed service. Docket 7. The court then stayed discovery pending a determination of qualified immunity. Docket 67. The state defendants now move for summary judgment based on qualified immunity. Docket 86.[1], [2] Shaw resists the motion for summary judgment. Docket 120. Shaw also filed several other motions. Dockets 69, 73, 74, 117, and 132.

         FACTUAL BACKGROUND

         The facts, viewed in the light most favorable to Shaw, are as follows: Shaw was an inmate at the Mike Durfee State Prison (MDSP) in Springfield, South Dakota from approximately April 2017 to June 2018. Docket 1 ¶ 44; Docket 66. Prior to April 2017 and after June 2018, Shaw was and continues to be incarcerated at the SDSP. Id.

         RLUIPA

         Shaw's religion, Dorcha Cosàn (DC), follows a strict code of ethics called “The Nine Laws of Dorcha Cosàn” (NLDC). Docket 1 ¶ 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 is Gaelic for dark path and “[i]t represents modern day Wiccans.” Docket 2 at 1 n.1.

         DC is a Wiccan religion. Docket 109 ¶ 9. Shaw describes DC as within the “tradition of Wicca” and refers to DCs rituals as “among the outer aspects of Wicca by which Shaw defines his religion.” Docket 1 ¶¶ 85, 105. The adherence to the NLDC differentiates DC from Wicca. Docket 121 at 3.

         Both MDSP and the SDSP have a recognized Wiccan group. Docket 109 25. Although MDSP and SDSP have inmates that identify as DC, there is no recognized DC group. Docket 121 at 10.[3] Wicca, but not DC, is listed in the Inmate Religious and Cultural Activities policy. See Docket 88-1.

         Defendants have denied Shaw's requests for accommodations separate from Wicca. Docket 1 ¶ 55; see also Docket 109 ¶ 22. Defendants require religious groups to meet as one group if they do not have a volunteer from outside the prison to lead the group worship and study time. Docket 88 ¶ 20. Several non-Christian groups are made up of different sects, but all sects meet as one group. Id. Shaw argues this requirement is not always followed. Docket 121 at 6-7. According to the SDSP Cultural Activities Sign-Up form, with the last printed date of October 2017, the Jewish and Messianic groups meet separately. Docket 122-1 at 4. Defendants maintain that, if a volunteer is located to lead a DC group and completes the requisite background check and training, the DOC would allow and encourage that. Docket 88 ¶ 21 (citing Docket 88-1 at 1).

         Shaw identifies several ways he claims defendants have substantially burdened his religious exercises. Docket 1 ¶¶ 62, 67. Shaw contends that all requests could be accommodated: no cost to defendants. Id. ¶ 68. DC could purchase everything through approved vendors. Id.

         First, Shaw alleges that Kaemingk, Dooley, Young, Drieske, Stanwick-Klemik, and Mertens-Jones require Shaw to provide proof that his religious requests are mandated by his religion. Id. ¶ 62(a). As evidence, Shaw offers the “Request for Religious or Alternative Diet” form that asks, “Explain in detail how the diet relates to your religion, why it is mandated, and list books or authorities that support your request.” Docket 122-1 at 2-3. Defendants maintain that the DOC does not require proof that requests are mandated. Docket 88 ¶ 12. Defendants only inquire about the basis of the request. Id.

         Second, Shaw alleges that Kaemingk, Dooley, Young, Drieske, Stanwick-Klemik, and Mertens-Jones allow Shaw's religion to be taken away from him for up to thirty days for a rule infraction. Docket 1 ¶ 62(b). Shaw provides the following account of events,

Shaw was written-up for a minor rule violation on a Saturday. On Monday morning Shaw received three (3) days cell restriction. Inmates start their cell restriction the day after the sanction. Therefore, Shaw was on cell restriction for Tue, Wed, and Thur. Wicca is held on Tuesday and Thursday nights. Because Shaw was not on cell restriction for a full week or longer, he was not allowed to attend Wicca. The following week Shaw experienced the exact same scenario. Because Shaw missed two consecutive weekly meetings, he was forced to miss an additional thirty (30) days of Wicca.

         Docket 121 at 4. Defendants dispute that they “take away” an inmate's religion. Docket 109 ¶ 15. If an inmate is placed on cell restriction for a full week or more, the inmate can attend one religious group meeting. Id. Inmates are automatically prevented from attending their religious group meeting if they miss group two times in a row. Docket 122-1 at 3. The SDSP Cultural Activities Sign-Up form includes the following:

IMPORTANT NOTE: if you miss any activity two (2) times in a row, or you leave before the activity is over, your name will automatically be removed from the list and you will be placed on a removal list for thirty (30) days. Once the thirty (30) days have passed, you may submit a new sign-up to be placed on the activity list again.

Id.

         Third, Shaw claims Kaemingk, Dooley, Young, Drieske, Stanwick-Klemik, and Mertens-Jones caused him to wait four months for religious requests to be considered and he did not always receive a response. Docket 1 ¶ 62(c). Defendants dispute that Shaw had to wait four months, because they review applications quarterly. Docket 88 ¶ 15. None of the applications Shaw submitted as exhibits were returned more than twenty-five days after submission. See Docket 122-1. Shaw does not identify or describe any of the applications defendants failed to return. See Dockets 1 and 121.

         Fourth, Shaw claims Kaemingk, Dooley, Young, Drieske, Stanwick-Klemik, and Mertens-Jones forced Shaw to wait an entire year to celebrate a single religious holiday when he is mandated to celebrate many, including eight Sabbats and thirteen Ebats. Docket 1 ¶ 62(d). And Drieske, Stanwick-Klemik and Mertens-Jones have denied Shaw the ability to celebrate the Sabbats and Esbats with Ritual and Feast. Id. ¶ 74. The Wiccan group celebrates Sabbats and Esbats during the year at their regularly scheduled meetings. Docket 88 ¶ 23. The Wiccan group also has annual ceremonial meals for Yule and Samhein. Id. The project applications Shaw submitted on behalf of the Hill Wiccan group show that defendants approved a ceremonial meal for Yule and Samhein. See Docket 122-1 at 22-23. Defendants also approved cake and ale for Sabbats and Esbats. See Id. at 18-21, 24; Docket 122-3 at 1.

         Fifth, Shaw claims Kaemingk, Dooley, Young, Drieske, Stanwick-Klemik, and Mertens-Jones only allow him one day a week for group worship when he is mandated to meet three times a week with additional time for holidays. Docket 1 ¶ 62(f). The Wiccan group at MDSP is allowed one, three-hour meeting time per week to meet as a religious group for worship and study time. Id. The Wiccan group at SDSP that Shaw can attend is allowed two ninety-minute meetings per week to meet as a religious group for worship and study time. Id. There are 100 religious group activities each week at the SDSP. Docket 109 ¶ 26. These meetings are limited by available time and space. Id. Holiday celebrations often occur in addition to normal schedule and require additional time, space and staff. Id.

         Sixth, Shaw claims Kaemingk, Dooley, Young, Drieske, Stanwick-Klemik, and Mertens-Jones forced him to allow at least two sex offenders and non-DC-members to attend his religious worship time in violation of Shaw's beliefs. Docket 1 ¶¶ 62(e), (g). Drieske and Stanwick-Klemik denied Shaw the ability to perform DC rituals with only DC-members. Docket 1 ¶ 86. Defendants do not choose who attends religious groups. Docket 109 ¶ 29. If an inmate identifies with the religion and signs up to attend the meeting or ceremonies, defendants do not intervene. Id.

         Seventh, Shaw alleges that Kaemingk, Dooley, Young, Drieske, Stanwick-Klemik, and Mertens-Jones limit him to two religious books when Shaw's beliefs require him to have access to thousands at any given time. Docket 1 ¶¶ 62(h), 67(h). Defendants explain the rules permit Shaw to have ten softcover books and an additional two hardcover religious books, if they were acquired before the rule prohibiting hardcover books was adopted, in his cell. Docket 109 ¶ 30; Docket 88-2 at 20. The number of books an inmate may possess in their cell is due to the limited storage space in a cell. Docket 109 ¶ 31. Each member of a religious group can have ten additional religious books stored in a group locker box. Id. ¶ 30. Given the current membership number, Shaw claims this system would provide access to ninety-four books. Docket 121 at 11.

         Eighth, Dooley, Young, Drieske, and Stanwick-Klimek denied Shaw the following ritual tools: small beads and small stones, geise ring, group book of shadows, personal group of shadows, altar, altar clothes, altar plate, altar tile, amulet, athame, Asperger, bell, besom, birthstone pendant, boline or white handled knife, bottles, bowls, candles, cast iron cookwear, cauldron, prayer rug, censer, ceramic ring, chalice, cloth bags, clothing, cords, crane bag, 200mm crystal ball with stand or cushion, crystals, stones, gems, metals and minerals, curved ash catcher, drum, fans, flags, fire pit rotisserie, small stones, goblets, god and goddess images, herbs, horn with stand, incense cones or sticks, ogham sticks and stones, oils, oil diffusers, oil boxes and herb boxes, plates, pendulum and mat, pentacle, pitcher, runes, mortar and pestle, salt, satchel, sacred pipe and tobacco, scrying mirror and holder, shield, staff, statutes, storage shed, talisman, tarot decks and books, virtual reality and video games, wands, and wind chimes. Docket 1 ¶¶ 67(c), (f), (k), 81; Docket 2 ¶¶ 19, 234-97. Currently, Wiccan inmates can possess the following religious property in their cell: very small pebbles, sheets of parchment paper, individual book of shadows, and tarot cards. Docket 88-2 at 22. Wiccan inmates can also possess the following group property items: athame (sword of cardboard, 24 inches), candles, candleholders, wand (wood or cardboard), pentacles, chalice, bowl, feather fan, altar top, bell, small drum, mortar and pestle, group book of shadows, tarot cards, salt shaker, and cauldron. Id. at 24-25. There is also a list of approved oils and botanicals available for an inmate purchase. Id. at 27, 31.

         Ninth, Drieske, and Stanwick-Klemik have denied Shaw the ability to build an outside nematon and vision mound. Docket 1 ¶ 87. DC requires all rituals, worship, spells, and celebrations be practiced outdoors in a nematon or vision mound. Docket 2 ¶ 330. Shaw provides an illustration and detailed explanation of a nematon. Id. ¶¶ 343-52. It requires 56 square feet of outdoor space, a seven-foot oak staff, brick foundations, fire pit, water feature, marble slabs, gardens, and stone paths. Id. The vision mound “is similar to the Finnish sauna or Native American sweat lodge.” Id. ¶ 353. Without an outside space, Drieske and Stanwick-Klemik have denied Shaw the ability to “worship and celebrate the ‘Sun' throughout the ‘Wheel of the Year' (WOY) and Dorcha Cosàn's Zodiac system, by giving thanks, sending daily offerings, and having ‘outdoor-cook-outs' followed by ‘outdoor-ritual-and feast' ceremonies on the day before or the day of the Eight Sabbats.” Docket 1 ¶ 88. And they have denied Shaw the ability to “worship and celebrate the ‘Moon' throughout the ‘Tree Calendar,' by giving thanks, sending daily offerings, and having ‘outdoor-cook-outs' followed by ‘outdoor-ritual-feasts' ceremonies on the day before or day of the Thirteen Esbats.” Id. ¶ 89; see also Docket 122-1 at 5, 10. Shaw emphasizes that DC is an earth-based religion and worship must occur outside. Docket 121 at 22.

         Two religious groups currently worship outside. First, the Native American group has a sweat lodge outside. Docket 109 ¶ 54. Second, the Jewish groups are allowed a sukkah. Docket 130 at 5. For eight days, a temporary tent like structure is set up and inmates are allowed two hours and juice and bread for the ceremony. Id. Defendants say there is a lack of outdoor space to allow inmates to worship outside. Docket 109 ¶ 55.

         Tenth, Shaw alleges that Dooley, Young, Drieske and Stanwick-Klimek denied Shaw the ability to take his mandated curriculum of study. Docket 1 ¶¶ 67(a), (i). Shaw desires access to online correspondence courses, three Ancestry DNA tests, the ability to research his ancestry online, and to study and learn genealogy online. Id. ¶ 67(b)-(c). Shaw needs a classroom to set up a computer, art stations, and library. Id. ¶ 67(j). Defendants allow religious groups to contact groups outside the prison and request worship and study materials. Docket 109 ¶ 34. Shaw can study whatever topics he wishes in his cell during free time or during the three hour weekly religious group meetings. Id. Defendants assert that DNA tests are not allowed under the current circumstances, but Shaw can study genealogy and ancestry. Id. ¶ 35. Inmates are not allowed to use the internet. Id. ¶ 36.[4] Internet access provides opportunities for illegal activity and there is insufficient staff to monitor use. Id. ¶ 37.

         Eleventh, Drieske, Stanwick-Klemik, and Mertens-Jones have denied Shaw the ability to adhere to his religious diet. Docket 1 ¶ 69. Shaw “must purify [his] 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).” Docket 2 ¶ 164. Shaw cannot consume “any foods with chemical or artificial additives.” Id. ¶ 165. The same applies to drinks. Id. ¶ 169. Shaw must eat at 5:30 a.m., 10:30 a.m., 3:30 p.m., and 8:30 p.m. Id. ¶ 174. “All food and beverages must be prepared and cooked by a member of DC . . . . This person takes 5 years of culinary courses.” Id. ¶ 176. Defendants, through CBM, offer a religious diet tray that they believe complies with all religious groups' requirements. Docket 109 ¶ 66. Defendants offer religious feasts and ceremonial meals to religious groups. Id. ¶ 67. Groups can choose from different items and the cost of the meals are the same for each group. Id. The only exception is the Jewish kosher for Passover daily meals, which are more expensive. Id. All food orders go through CBM. Id. ¶ 69. Hy-Vee only provides food for the prison by way of CBM. Id. CBM does not have an all-natural food option due to the higher cost and logistical issues in obtaining all-natural foods. Docket 89 ¶ 3.

         Twelfth, Unknown CHS employees and Drieske have denied Shaw all-natural herbal remedies to replace his currently prescribed pharmaceuticals. Docket 1 ¶¶ 75-76; Docket 2 ¶ 213. Shaw has a prescription for vitamin D, liquid antacid and petroleum jelly. Docket 109 ¶ 6.

         Thirteenth, Drieske, Allcock, Lentsch, Bieber, and Klemik forced Shaw to live and dine with non-DC members knowing there is a high risk of confrontation while allowing other religious inmates to live together if they request it. Docket 1 ¶¶ 75, 77-79; Docket 2 ¶ 214. Shaw wants to eat in his cell and claims other religions are allowed to eat in their cell. Docket 121 at 21. DOC does not make housing decisions based on religion. Docket 109 ¶ 51. Shaw can request to live with a DC member. Id. If the DOC determines that the inmates can live safely with each other, unit staff will try to accommodate that request. Id. Inmates cannot choose where they sit and who they sit with at meal times. Id. ¶ 50. The next inmate in line takes the next available seat. Id. It is a security issue to allow inmates to choose their seats because gangs could congregate. Id.

         Free Exercise

         Kaemingk, Dooley, Young, Drieske, Stanwick, Mertens-Jones, Lentsch and Bieber allow religious accommodations for other religions but deny the same accommodations for DC. Docket 1 ¶ 93. The denials forced Shaw to significantly modify his practice and “render[ed] Shaw's religious exercise effectively impractical.” Id. ¶¶ 93-95.

         Redmond denied Shaw the ability to use a law computer in the school at SDSP when trying to prepare this complaint and declaration. Id. ¶ 100. Shaw is banned from using the law library computers. Docket 92 ¶¶ 2-4. On September 9, 2016, Redmond was auditing the law library computers. Docket 96 ¶ 7. Redmond found documents saved by an inmate. Id. Using the time and date of the saved file, Redmond determined that the document was saved by Shaw. Id. ¶ 9. The files all related to Wicca. Id. ¶ 10. Inmates can only use law library computers to complete legal work, and they cannot save or store any documents on the computers. Id. ¶ 8. Redmond prepared a write up and attached the documents he found. See Docket 93-1.

         Shaw was denied employment in the school. Docket 1 ¶ 102. Redmond, as GED instructor at SDSP, hires inmates to work in the school as tutors or librarians. Docket 93 ¶¶ 1, 3. These inmates wear green shirts and have special privileges such as moving between units and accessing special computers. Id. ¶¶ 3-4. Redmond reviews inmate's disciplinary records before hiring. Id. ¶ 5. Redmond denied Shaw employment due to his disciplinary record. See Docket 93-1 at 1.

         Equal Protection

         Shaw has requested many accommodations from Kaemingk, Dooley, Young, Drieske, Stanwick-Klemik, and Mertens-Jones. Docket 1 ¶ 105. Shaw's requests were denied but the same requests were approved for similarly situated inmates in more mainstream religious groups. Id. ¶¶ 106-07.

         Drieske and Stanwick-Klemik allow other religious groups to receive donations from outside approved vendors for religious or cultural gatherings. Id. ¶ 108; see also Docket 88 ¶ 64. Shaw claims that DC has been denied the ability to receive donations. Docket 1 ¶ 108. Defendants assert that if the Wiccan group can identify an outside Wiccan organization that is willing to donate to that group, the DOC would work with that organization to facilitate donations if the items are not a risk to safety and security. Docket 88 ¶ 65.

         Shaw has not been allowed to buy from vendors other than CBM. Docket 1 ¶¶ 108, 118. CBM does not offer food that complies with DC's strict dietary requirements. Id. ¶ 109. On December 21, 2016, Shaw canceled the Yule Sabbat feast and celebration because Drieske refused to allow Shaw to order “all natural” foods from Hy-Vee. Id. ¶¶ 124-26. Hy-Vee is an approved vendor for the DOC. Id. ¶ 126. Hy-Vee has catered Buddhist, Jewish, and Muslim group meals. Id. ¶ 127. Shaw alleges that Drieske approved different treatment for their religions. Id. ¶ 128. Defendants maintain that all food orders go through CBM, including ordering food from Hy-Vee. Docket 88 ¶ 69.

         First Amendment Right to Receive Mail

         Drieske, Baker, Miller-Hunhoff, Reimann, and Storevick rejected or refused to deliver over 200 magazines that were mailed to Shaw. Id. ¶ 131; Docket 122-3; 122-4. Shaw provided twenty-seven Mailroom Correspondence Rejection forms dated from March 15, 2015 to October 6, 2017. Docket 122-3 at 15-30; Docket 122-4 at 1-14. The rejected magazines include Inked, Urban Inked, Freshly Inked, Tattoo, Skin & Ink, Rebel Ink, Maxim, and Fangoria. Id. All but four were rejected for violation of the prison porn policy. Id. Inked Volume 5 Issue 2, Freshly Inked November 2015, Tattoo November/December 2015, Urban Ink May 2016 were rejected, at least in part, for containing a hand gang sign. Docket 122-3 at 24; Docket 122-4 at 1-2, 7. Tattoo January 2016 was rejected because it contained a calendar. Docket 122-3 at 28.

         Shaw claims most of the rejections are based on a single, small picture within an entire magazine. Docket 1 ¶ 134. Shaw maintains that these are art magazines and “necessary reference materials for Shaw's religion . . . to develop [his] artistic-magickal mind [sic].” Id. ¶ 132.

         Shaw filed grievances regarding the rejected magazines. See Docket 122-4. In almost all grievances, Shaw argues that the rejected magazines were not adult only and can be sold to minors. Id. Drieske and Baker denied Shaw's grievances. Docket 1 ¶136. Shaw alleges that Drieske stated, “ ‘they might have nudity in them.' ” Id. ¶ 138. When the magazines are rejected, Shaw is indigent and unable to send the rejected magazines out. Id. ¶ 135. Shaw has suffered over $1, 000.00 in monetary loss. Id.

         The DOC has a pornography policy (Policy 1.3.C.8-Pornography) that was last revised on May 23, 2016. Docket 88-3. The policy “prohibits the purchase, possession, attempted possession and manufacturing of pornographic materials by inmates.” Id. Section III of the policy contains the definitions of pornographic material, nudity and sexually explicit:

Pornographic Material:
Includes books, articles, pamphlets, magazines, periodicals, publications or materials that feature nudity or “sexually explicit” conduct. Pornographic material may include books, pamphlets, magazines, periodicals, or other publication material that features or includes photographs, drawings, etchings, paintings, or other graphic depictions of nudity or sexually explicit material.
Nudity:
“Nudity” means a pictorial or other graphic depiction where male or female genitalia, pubic area, buttocks, or female breasts are exposed. Published material containing nudity illustrative of medical, educational or anthropological content may be excluded from this definition.
Sexually explicit:
“Sexually explicit” includes written and/or pictorial, graphic depiction of actual or simulated sexual acts, including but not limited to sexual intercourse, oral sex or masturbation. Sexually explicit material also includes individual pictures, photographs, drawings, etchings, writings or paintings of nudity or sexually explicit conduct that are not part of a book, pamphlet, magazine, periodical or other publication.

Id. Section IV of the policy contains the procedures regarding the purchase, possession and/or attempted possession of pornographic material. It first establishes that any pornographic material is contraband and an inmate that violates this policy may be subject to disciplinary action. Id. at 1-2.

         A. Each institution's Warden or Superintendent will ensure procedures are in place to prevent pornographic material from being brought into an institution(s) under their authority. Such procedures will encompass at a minimum:

1. Prevention of the introduction or movement of pornographic material through correspondence or visits (See DOC policies 1.5.D. 1 Inmate visiting, 1.5.D.2 Juvenile Visitation and Telephone Contact and 1.5.D.3 Offender Correspondence).
a. All incoming and outgoing correspondence or publications depicting pornography or containing pornographic material will be rejected (See DOC policy 1.5.D.3 Offender Correspondence).
2. Each facility shall identify staff that has the authority to determine if a particular item meets the definition of pornographic material, as described within policy.
B. If an inmate disagrees with a decision that a particular item meets the policy definition of pornographic material, the inmate may appeal the decision through the administrative remedy process (See DOC facility (See DOC policy 1.3.A.10 Restrictions on Electronic Equipment)

Id. at 2. Section VI contains a revision log that shows only minor changes to the policy during the time Shaw's magazines were rejected. Id. at 3. There were no changes to the definitions section during the time Shaw's magazines were rejected. Id.

         Due Process

         Shaw alleges that his personal property and money were taken without due process on several occasions. On two occasions significant portions of his property were missing. Docket 1 ¶ 145. Shaw was then forced to “(1) sign the return inventory sheet and forfeit his missing property or (2) refuse to sign the return inventory sheet and lose all of plaintiff's property.” Id. Shaw does not identify when the taking occurred or what personal property was missing.

         Shaw filed two separate actions in Minnehaha County Small Claims Court. Docket 109 ¶ 257. Shaw named Young as the defendant in one action and Bieber in the other. Id. On October 31, 2016, Shaw appeared by ITV for a hearing on both files. Id. ¶ 258. Both cases were dismissed. Id. ¶ 259.

         Shaw claims defendants confiscated $140.00 out of his inmate account without notifying Shaw or giving him an opportunity to state his objection to the confiscation. Docket 1 ¶ 147. Shaw claims that DOC policy allowed for up to 95% of Shaw's incoming money to be taken without due process or held forever in a frozen account. Id. ¶¶ 139-48.

         Defendants explain that during intake inmates can sign a power of attorney (POA) form that allows the prison to accept money from outside the prison and deposit that money into an inmate's account. Docket 95 ¶ 9. If the inmate revokes the POA, the inmate cannot receive money from outside sources. Id. ¶ 10. But, revoking does not opt the inmate out of the inmate banking system. Id. ¶ 11. Shaw revoked his POA on May 15, 2015. Id. ¶ 12.

         Defendants explain the process for when an inmate receives money. See Docket 95. Money is first deposited into a frozen account. Id. ¶ 3. Any monies owed to the prison for an outstanding credit obligation or the Prison Litigation Reform Act will be paid first. Id. ¶¶ 5-6. Then five percent will go into an inmate savings account, up to a maximum balance of $300. Id. ¶ 7. The remainder goes to an inmate spending/commissary account. Id. ¶ 4. The total monthly deposits into this account cannot exceed $160. Id. If the deposit brought an inmate over $160, up to 40% of that deposit is applied to fixed obligations, such as cost of incarceration and restitution. Id. ¶ 8. Inmates are responsible for checking their account statements for accuracy. Id. ¶ 14. If an inmate believes that an error has occurred, it is the inmate's responsibility to notify staff. Id.

         Denial of Medical Care / Deliberate Indifference

         Shaw has had ongoing medical problems with his lower back, both knees, and acid reflux during his incarceration at SDSP and MDSP. Docket 1 ¶¶ 172-179; Docket 109 ¶¶ 128-130. Between November 8, 2012 and July 17, 2018, Dr. Carpenter authorized off-site treatment for Shaw thirty-five times. See Docket 96 ¶ 9. The approved treatments include orthopedic consults, knee surgeries, knee braces, physical therapy, lumbar injections, lumbar epidurals, knee injections, and synvisc knee injections. Id. Shaw also has been prescribed a no-stair order, a head of bed wedge, knee braces, and a low bunk order. Docket 122-5 at 6, 9.

         In May of 2016, Shaw claims defendants denied him his knee braces, medical shoes, and head of bed wedge when he was in the SHU. Docket 1 ¶ 178; see also Docket 122-9. Shaw alleges that an unknown CHS defendant removed all of Shaw's medical orders when Shaw was placed in the SHU. Id. ¶ 177. Defendants say medical orders remain active regardless of what unit an inmate is in. Docket 98 ¶ 8.

         In June of 2017, Shaw claims Dr. Adams said DOC would not approve a gel injection for Shaw's knees. Docket 1 ¶ 171. Shaw's medical records show that Dr. Carpenter approved a May 1, 2017 request for Synvisc knee injections. Docket 122-5 at 10; see also Docket 96 ¶ 9.

         Shaw claims he was denied a low bed in a two-man bunk, an extra pillow, ice, and shoes. Id. ¶¶ 170-178. Shaw submitted some of his medical records. See Docket 122-5. On March 10, 2017, Shaw went to Health Services and asked for insoles, a two-man bunk, head of bed wedge, extra pillow, and ice. Id. Medical records show, “Patient was informed that he has been sized for his [shoes][, ] Spoke with Clinical Supervising staff, and these are comfort items offered by DOC.” Id. at 1. A later entry the same day states,

Emailed UM D. Lentsch at request of Nurse performing NSC on 3/10, patient was complaining that if he is in 2nd bunk of 3 man cell he doesn't have enough room for HOB wedge. Patient advised that cell placement is a housing issue managed by DOC. Answer from UM D. Lentsch states patient is single celled.

Id. at 2.

         On March 22, 2017, Shaw again went to Health Services for knee pain. Medical records show, “Pt understands DOH will not give the pillow order at this time. Id. at 3. Dr. Regier has reviewed with the patient and will not reclassify him for low bunk (will need to work with DOC for use of HOBWedge as recommended by DOH)[.] Shoe issue with orthotics is noted and understands he will need to take the issue with DOC.” Id.

         On April 25, 2017, Shaw went to Health Services for sick call complaining of continued knee pain, back pain, and acid reflux. Id. at 6. Medical records show, “PLAN: Will discuss with charge nurse re housing, extra pillow and shoes. These issues are ultimately DOC concerns.” Id. at 5.

         On May 1, 4, 5 and 10 of 2017, Shaw went to Health Services for sick call and requested to be in a two-man bunk. Id. at 9-17. Shaw was informed that “medical does not specify the bottom bunk order to be a 2 man or 3 man bunk.” Id. at 15. Shaw then explained that he was informed otherwise by Foley. Id. [5]

         Shaw claims Kaemingk, Dooley, Young, Bieber, Lentsch, Klemik, Dr. Carpenter, Dr. Regier, Schreurs, Bowers, and Unknown CHS Employees designed policies that delegate medical decisions to non-medical personnel. Docket 1 ¶¶ 165-66; Docket 122-4. Shaw relies on a memo dated February 24, 2014. See Docket 122-4. The memo states,

It is the duty of SDDOH Health Services to provide medical treatment, however this responsibility does not include providing for comfort items and custodial issues. These comfort items are not necessary for good medical care. The only possible exception to this is a lower or middle bunk, stair restrictions and legitimate work restrictions due to medical diagnosis. Health Services will not address requests for comfort items or custodial issues.

Id. Defendants maintain, “CHS retains autonomy for clinical decisions. The DOC does not make clinical decisions.” Docket 109 ¶ 147. Medical housing classifications, including bunk assignments and handicap classifications, are determined by Doctors, Physician Assistants, and Certified Nurse Practitioners. Id. ¶ 148. Defendants also state, “Collaboration between the two departments will occur regarding clinical decisions that may interfere with the security of the institution with the goal of meeting the patient's medical needs and maintaining the security of the institution.” Id. ¶ 147.

         As medical Director for CHS, Dr. Carpenter claims she is not involved in the decisions to grant or deny a handicap cell, specific bunk assignment, medical ice, or extra pillows. Docket 96 ¶ 13. Dr. Carpenter signed the memo delegating comfort care items to DOC. See Docket 122-4.

         In his affidavit, Dr. Regier stated that he does not believe a handicap cell is necessary for Shaw. Docket 96 ¶ 4. But Shaw does have a low bunk order. See Docket 122-5 at 9.

         On June 13, 2016, Young provided a response to Shaw's Administrative Remedy. In part, Young stated that “[e]xtra pillows are comfort items and needs to be discussed with DOC. Ice is provided for acute issues on a short-term basis.” Docket 122-9.

         On September 6, 2016, Shaw submitted an Informal Resolution Request requesting an extra pillow and ice. Id. at 1. Shaw stated,

I have been complaining to UM Bieber since May that I need an extra pillow order and a med ice order. I've told Bieber face to face and through kites all he has to do is call Health Bowers and she will confirm I need them. This is a clear case of Deliberate Indifference.

Id. In response, UC Mary Burgraaf wrote, “I have reviewed your Informal Resolution Request regarding an extra pillow order and med ice order. I contacted the medical staff and they report that you were recently seen by the medical provider and no recommendation was made for an extra pillow or med ice.” Id. at 2.

         Access to the Courts

         Allock, Ponto, Bieber, Lentsch, Klemik, Effling, Maturan, and Ulmer prevented Shaw from filing grievances about the conditions of his confinement by denying him the grievance forms, refusing to take his grievances once completed, not answering the grievances placed in a defendant's box or under their door, and retaliating against Shaw for trying to grieve the conditions of his confinement by punishing Shaw. Docket 1 ¶ 180. Shaw claims Bieber was involved in both stages of the administrative remedies process and lied to his superiors to prevent Shaw from challenging the conditions of confinement. Id. ¶ 181. Shaw told Ponto and Young about Bieber's conduct and claims they did nothing. Id. ¶¶ 182-83. Shaw claims Maturan denied Shaw's administrative remedies for “exaggerated reasons to prevent Shaw from getting his claim to court.” Id. ¶ 184.

         Defendants describe the process for filing a grievance. Docket 109 ¶ 172. An inmate first must file an Informal Resolution Request (IRR) and submit the completed IRR to the Unit Coordinator (UC). Id. The UC will investigate by talking to the named parties and provide the inmate a response. Id. If unsatisfied, an inmate may then submit a Request for Administrative Remedy (AR) to the UC. Id. ¶ 173. The UC will forward the AR to the Administrative Remedy Coordinator. Id. The Coordinator will investigate by contacting the named parties and provide the inmate a response. Id. ¶ 174. ...


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