United States District Court, D. South Dakota, Southern Division
ORDER GRANTING IN PART AND DENYING IN PART STATE
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING
MISCELLANEOUS OTHER MOTIONS
E. SCHREIER UNITED STATES DISTRICT JUDGE.
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
resists the motion for summary judgment. Docket 120. Shaw
also filed several other motions. Dockets 69, 73, 74, 117,
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.
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.
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. Wicca, but not DC, is listed in the Inmate
Religious and Cultural Activities policy. See Docket
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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. ¶
Internet access provides opportunities for illegal activity
and there is insufficient staff to monitor use. Id.
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.
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.
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
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.
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.
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.
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. ¶¶
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.
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.
Amendment Right to Receive Mail
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.
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.
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.
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
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” 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” 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.
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
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.
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
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.
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. ¶¶
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.
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.
of Medical Care / Deliberate Indifference
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.
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
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.
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
Id. at 2.
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.
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.
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. 
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.
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.
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
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.
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.
to the Courts
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.
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. ¶