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Cody v. Bowers

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

September 17, 2019

WILLIAM CODY, Plaintiff,
v.
RN HEATHER BOWERS; LINDA MILLER-HUNOFF; RN JESSICA SCHREURS; KRISTINE WIERSMA; RN KAYLA TINKER; DR. MARY CARPENTER; STEVE BAKER; ARTHUR ALLCOCK; JENNIFER DRIESKE; DARIN YOUNG; DENNIS KAEMTNGK; DR. KENDRA[1] OTT; RD JESSICA BECKER; MERLIN SEJNOHA JR.; TROY PONTO; DERRICK BIEBER; ELIZABETH EFFLING; CO GAIKOWSKI; BRENT MCDONALD, ALL PRECEEDING DEFENDANTS IN THEIR OFFICIAL OR INDIVIDUAL CAPACITIES; AND CBM MANAGED SERVICES, Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION WITH ONE MODIFICATION

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         William Cody ("Cody"), an inmate at the South Dakota State Penitentiary ("SDSP"), filed an amended pro se complaint against the above captioned SDSP officials (collectively "Defendants"), alleging that Defendants deprived him of adequate medical care, denied him access to medical records by seizing his mail from outside medical providers, subjected him to retaliatory treatment, and deprived him of access to the courts. Doc. 9. The case was referred to Magistrate Judge Veronica Duffy for screening under 42 U.S.C. § 1915, and she issued a Report and Recommendation on June 28, 2019. Doc. 12. Judge Duffy recommended that all of Cody's equal protection and due process claims be dismissed; that Cody's Eighth Amendment claims relating to his eyecare, diet, and the requirement that he purchase over-the-counter treatments from commissary be dismissed; that Cody's access to the courts claim alleging inadequate medical references in the prison library be dismissed; and that defendants Dr. Kendra Ott, Jessica Becker, Merlin Sejnoha Jr., CBM Managed Services, Dr. Mary Carpenter, Darin Young, and Dennis Kaemingk be dismissed. Doc. 12 at 35. Judge Duffy further recommended that the claims surviving screening should be Cody's First Amendment interference with mail claims, his Eighth Amendment claim relating to hearing impairment, and his access to the courts claims based on alleged retaliation. Doc. 12 at 35.

         Cody thereafter objected to some of Judge Duffy's recommendations. Doc. 14. Cody objected to Judge Duffy's recommendation to dismiss his equal protection claims, Doc. 14 at 1-2; to dismiss parts of the interference with mail claims, Doc. 14 at 3-5; and to dismiss defendants Carpenter, Young and Kaemingk, Doc. 14 at 7.

         This Court reviews objections to a report and recommendations de novo. 28 U.S.C. § 636(b)(1). "In the absence of an objection, the district court is not required 'to give any more consideration to the magistrate's report than the court considers appropriate.'" Anderson v. Evangelical Lutheran Good Samaritan Soc'y, 308 F.Supp.3d 1011, 1015 (N.D. Iowa 2018) (quoting Thomas v. Arn, 474 U.S. 140, 150 (1985)). This Court has conducted a de novo review of the record and adopts the Report and Recommendation with one modification.

         II. DISCUSSION

         A. Equal Protection Claims

         In Cody's Amended Complaint, he alleges equal protection violations claiming that Defendants promulgated and followed a policy by which they seized prisoners' mail from outside medical providers and that they retaliated against Cody for pursuing legal claims against them. Doc. 9 at 62-64, 67-68. On these claims, Judge Duffy recommended dismissal because Cody failed to allege that he was a member of a suspect class or that Defendants treated him differently than another similarly-situated group of prisoners.

         The Fourteenth Amendment's promise of equal protection of the law extends to provide some protections to prison inmates. Murphy v. Mo. Dep't of Corr., 372 F.3d 979, 984 (8th Cir. 2004). In order to successfully plead an equal protection claim, Cody "must show that he is treated differently than a similarly situated class of inmates, that the different treatment burdens one of his fundamental rights, and that the different treatment bears no rational relation to any legitimate penal interest." Id.

         In the Report and Recommendation, Judge Duffy reasoned that because Cody did riot allege he was treated differently than any other similarly-situated class, his equal protection claims should fail. Doc. 12 at 7. Cody objects and argues that he was treated as a "class of one" without any rational basis therefore. Doc. 14 at 2 (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)). In Village of Willowbrook v. Olech, the Supreme Court of the United States established that a "class of one" can successfully raise an equal protection claim. 528 U.S. at 565. In Village of Willowbrook, a landowner sought to connect certain property to the municipal water supply, but the municipality conditioned that connection on the granting of a 3 3-foot easement, when it only required a 15-foot easement from other similarly-situated landowners. Id. at 563. The landowner alleged that the disparate demand was motivated by animosity resulting from the landowner's unrelated lawsuit against the municipality. Id. The Supreme Court held that an individual may maintain an equal protection claim when "the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Id. at 564. The Supreme Court found that because the complaint alleged the municipality's demand was irrational and wholly arbitrary, the landowner successfully stated an equal protection claim. Id. at 565.

         The primary premise of counts one and two in Cody's Amended Verified Complaint is that the seizure of prisoner mail is constitutionally impermissible. Doc. 9 at 62. As an initial matter, Cody cannot establish an equal protection claim as a "class of one" because he was not treated differently from other prisoners in the initial seizure of his mail from outside medical providers. In his Declaration, Cody cites an email from Miller-Hunoff stating that "[a]ll correspondence from a Doctor or a medical facility does indeed get sent to [Health Services]." Doc. 15 at 19. Therefore, the facts as alleged establish that Cody is treated the same as similarly-situated prisoners in that his mail from outside medical providers is diverted to Health Services. Furthermore, although Cody alleges that the mail policy implemented by Bowers, Miller-Hunoff, and Schreurs was irrational, Doc. 14 at 2, his pleadings acknowledge a possible rational basis for the seizure of his medical mail-the correspondence may contain information of the date and time of a future medical appointment, which could allow an inmate to plan an escape and thereby threaten prison security. Doc. 15 at 19.

         Cody claims that he was treated as a "class of one" in that only he had to request to receive his mail from outside medical providers. Doc. 14 at 2. However, this allegation misses the point. After a prior lawsuit filed by Cody regarding the seizure of his medical mail, Cody and prison officials established a system by which he could request copies of his medical reports from outside medical providers and then notify Health Services of such request. Doc. 15 at 20-21. Health Services would then read the correspondence, redact any dates relating to future medical appointments, and then deliver it to Cody. Doc. 15 at 21. This system, although alleged to only apply to Cody, cannot fairly be characterized as a regulation, but would more accurately be described as an accommodation. Cody was not subjected to an irrational and arbitrary condition that did not apply to others as the plaintiff was in Village of Willowbrook. Rather, he was subjected to the same rational regulation, but provided an alternative means to achieve his end goal-the receipt of his medical reports upon request.

         Cody further alleges that Defendant McDonald treated him differently from other prisoners by packing and inventorying the items in Cody's cell while Cody was placed in the institution's Special Housing Unit, also referred to as disciplinary segregation. Doc. 14 at 2. Cody alleges that McDonald seized a great deal of his permitted property as contraband and that he failed to provide an accurate inventory of the items. Doc. 15 at 52. Although he alleges this was an error according to policy, he failed to allege that he was treated differently from other prisoners who are temporarily sent to the Special Housing Unit, which allegation is a necessary component of an equal protection claim. Doc. 15 at ¶ 168. Because Cody failed to allege that he was irrationally and arbitrarily treated differently from other prisoners, his objections to the recommended dismissal of his equal protection claims is overruled.

         B. First Amendment Seizure of Mail Claims

         Cody next objects to Judge Duffy's application of the three-year statute of limitations to his First Amendment claims and argues that the Defendants' seizure of his mail constitutes a continuing violation of, his constitutional rights. Doc. 15 at 3. As Judge Duffy noted, Cody's complaint alleges seizures of his medical mail dating back several years. Doc. 12 at 9.

         Cody's First Amendment claim is cognizable in this Court under 42 U.S.C. § 1983, which contains no limitation period for claims.. For federal causes of action arising under federal statutes enacted before December 1, 1990, "[w]hen Congress has not established a time limitation... the settled practice has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so." Wilson v. Garcia, 471 U.S. 261, 266-67 (1985). Because the cause of action Cody now asserts under § 1983 existed before December 1, 1990, the South Dakota statute of limitations for these claims applies. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004). South Dakota Codified Law 15-2-15.2 establishes in relevant part that "[a]ny action brought under the federal civil rights statutes may be commenced only within three years after the alleged constitutional deprivation has occurred." SDCL § 15-2-15.2. Therefore, Judge Duffy appropriately considered only the allegations within three years of Cody filing his complaint to determine if he successfully pled a claim. She determined that he had, and this Court agrees.

         Despite Judge Duffy's recommendation that Cody's First Amendment claims within the three-year statutory period should survive screening, Cody argues that the continuing violations doctrine should allow him to maintain all of his alleged First Amendment claims. However, the reaches of that doctrine do not extend as far as he asserts. "The continuing violations doctrine is typically applied to hostile work environment and antitrust claims; however it has been applied to § 1983 for Eighth Amendment violations." Turner v. Palmer, 84 F.Supp.3d 880, 885-86 (S.D. Iowa 2015). In the context of employment discrimination, the Supreme Court held that discrete "acts are not actionable if time barred, even when they are related to acts alleged in timely filed ...


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