United States District Court, D. South Dakota, Southern Division
ORDER DIRECTING SERVICE IN PART AND DISMISSING IN
PART, GRANTING MOTION TO AMEND COMPLAINT, GRANTING MOTION FOR
SERVICE, DENYING MOTION TO APPOINT COUNSEL, AND DENYING
MOTION TO SUPPLEMENT COMPLAINT
E. SCHREIER, UNITED STATES DISTRICT JUDGE.
Burton Kenneth Landman, is an inmate at Mike Durfee State
Prison (MDSP). Landman filed a pro se civil rights lawsuit
under 42 U.S.C. § 1983. Docket 1. The court granted
Landman leave to proceed in forma pauperis and Landman paid
his initial partial filing fee. Dockets 5, 12. Landman moves
to amend his complaint by inserting additional pages to his
original complaint (Docket 1). Docket 14. Landman also moves
for the appointment of counsel, to proceed in forma pauperis,
to amend and supplement his amended complaint, and for the
court to adopt and extend the “Brakeall single copy
rule.” Dockets 7, 10, 11, 16, 17. The court has now
screened his amended complaint (Dockets 1, 14) under 28
U.S.C. § 1915A, and for the reasons stated below, the
court directs service in part and dismisses in part.
to Landman’s complaint:
Landman is a disabled veteran with multiple disabilities
including military-related PTSD, severe sleep apnea, and
hypertension. Docket 1 ¶ 27. Since 1998, Landman has
sought disability benefits from the Department of Veterans
Affairs (VA) with the help of MDSP staff. Id. ¶
29. Landman has been awarded VA service-connection benefits
and is in the process of advancing various claims and appeals
on these medical conditions. Id. ¶ 30. MDSP
staff were aware that Landman is a veteran with VA
service-connected disabilities, and were aware of the
existence and treatment of his medical conditions.
Id. ¶¶ 28, 34-35.
1997, MDSP staff have regularly processed and delivered
manila-enveloped mail addressed to Landman from a variety of
agencies including mail from the VA. Id. ¶ 36.
Landman frequently corresponds with the VA on pending
disability benefits claims and appeals, and receives VA
appellate decisions from appellate judges and federal courts.
Id. ¶ 33. On January 19, 2018, MDSP posted a
notice that procedures concerning incoming envelopes to the
prison would change. Id. ¶ 16. On May 2, 2018,
MDSP posted a revised policy, Inmate Correspondence Policy
1.S.D.3, which stated that “incoming envelopes must be
white in color . . . [e]nvelopes that do not meet the
criteria will be returned unopened to the sender[.]”
Id. ¶ 20.
before, on May 1, MDSP mailroom staff rejected a manila
envelope addressed to Landman from the VA’s Board of
Veterans Appeals (BVA). Id. ¶ 38. The
correspondence was rejected without notice to Landman and was
returned unopened to the sender. Id.; see
also Docket 1-1 at 8-9. A different VA decision and
order addressed to Landman was rejected by MDSP staff on May
17. Docket 1 ¶ 39; see also Docket 1-1 at 6-7.
Landman alleges that Karissa Livingston and unknown mailroom
staff personally rejected his incoming legal mail from the
VA, returned the mail as undeliverable to the sender, and
failed to notify Landman of the rejections. Docket 1 ¶
87. Landman remained unaware of his rejected legal mail until
June 11, 2018, when the VA Evidence Intake Center sent a
letter to Landman alerting that his BVA decision letters were
being rejected and returned to it as undeliverable.
Id. ¶ 40; see also Docket 1-1 at 6-9.
Landman alleges that he no longer can litigate his federal
disability claim because defendants rejected his mail, and
his responses to the VA decisions are now time-barred. Docket
1 ¶ 97.
12, 2018, Landman filed an Informal Resolution Request (IRR),
alleging that the rejection of his VA mail could cost him $2,
977.86 in monthly VA disability benefits. Id. ¶
41; see also Docket 1-1 at 10-12. That same day,
MDSP responded to his IRR, stating that “the items were
rejected because of the colored manila envelope per policy.
VA is not considered legal mail.” Docket 1 ¶ 42;
see also Docket 1-1 at 13. Three days later, on June
15, Landman filed a Request for Administrative Remedy (ARR),
alleging that the reply to his IRR did not reasonably respond
to his issue and injury. Docket 1 ¶ 44; see
also Docket 1-1 at 14. On June 19, Landman asked Alex
Reyes, MDSP Associate Warden of Operations and Facility
Americans with Disabilities Act (ADA) Coordinator, for an
“Inmate Request for Reasonable Accommodation
Form” as required by Department of Corrections (DOC)
ADA Policy 1.1.E.7. Docket 1 ¶ 45. Reyes declined to
respond to Landman’s request. Id. Landman
alleges this was in retaliation for filing his mail
interference grievances because Reyes’ reaction was
only seven days after Landman filed his IRR and four days
after his follow-up ARR. Id. ¶ 88.
Reyes would not give him the ADA form, Landman created his
own ADA Reasonable Accommodation Form and provided it to
Reyes on June 24. Id. ¶ 46; see also
Docket 1-1 at 15. Reyes again did not respond. Docket 1
¶ 46. On July 18, Landman’s June 15th ARR request
was denied by Brent Fluke, MDSP Warden. Id. ¶
48. Fluke reiterated that all non-white envelopes would
continue to be rejected and returned unopened to the sender
without notice to inmates. Id. On July 26, Landman
appealed the denial of his ARR to Dennis Kaemingk, Secretary
of the South Dakota DOC. Id. ¶ 50; see
also Docket 1-1 at 16.
his VA mail issues, Landman had a chronic case exam conducted
by a Physician Assistant (PA) with the DOC Medical Health
Services. Docket 1 ¶ 52. The PA was concerned about the
spike in Landman’s normally well-controlled blood
pressure. Id. On August 23, another exam was
conducted concerning Landman’s military-related PTSD,
anxiety, and depression. Id. ¶¶ 52-53.
Landman was given various techniques and exercises to use
when distressed over the mail rejections. Id. ¶
53; see also Docket 1-1 at 21-23. Landman alleges
that the stress caused by his VA correspondence being
rejected has greatly affected his sleep, his previously
managed PTSD, anxiety, depression, and has increased the
frequency and intensity of his panic attacks. Docket 1 ¶
43. During this time, Fluke told Landman that the prison was
looking into getting VA mail deemed privileged or legal mail,
and that Fluke would personally contact the VA to re-mail the
rejected decisions. Id. ¶¶ 54, 63.
also alleges that the prison rejected or diverted a VA
past-due benefits check of $39, 073.34 that the VA released
to Landman on July 27, 2018. Id. ¶¶ 69,
80; see also Docket 1-1 at 30-31. This retroactive
benefits money was never released to Landman, reflected in
his bank statements, or physically delivered to him by MDSP
staff. Docket 1 ¶ 81. Landman was unaware that the money
had been released to him until November 15, when he received
a November 8th letter from the VA, informing Landman that the
Department had failed to withhold 20% of attorney’s
fees when the VA released to Landman the entire amount of his
past-due benefits, resulting in an overpayment of $7, 814.67.
Id. ¶ 80; see also Docket 1-1 at
30-31. To recoup the attorney’s fees, the VA will
garnish $136.42 monthly disability benefits until the missing
$7, 814.67 is paid in full. Docket 1 ¶ 84. Landman
claims Livingston, mailroom staff, or the other defendants
converted this money in retaliation for submitting his
grievances and ADA accommodation requests. Id.
¶¶ 82, 87. Because defendants converted and stole
his $39, 073.34 check, Landman cannot pay the missing $7,
814.67. Id. ¶ 83.
November 20, 2018, Landman was handed an envelope from DOC
Administration addressed to Landman but not postmarked or
labeled. Id. ¶ 75. The letter said
Landman’s request for appeal of administrative remedy
was denied by Kaemingk for two reasons: “[Landman] did
not provide a copy of the [IRR], ” and “[t]his
issue cannot be appealed to the Secretary of
Corrections.” Id. ¶¶ 75-76; see
also Docket 1-1 at 19. Landman contends that he has
exhausted all available administrative remedies. Docket 1
¶ 14. As of the date of the complaint, Landman has not
received his rejected legal mail, missing VA funds, and the
DOC policy prohibiting manila envelopes has not changed.
Id. ¶ 54.
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). 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); see
also Ellis v. City of Minneapolis, 518 Fed.App’x
502, 504 (8th Cir. 2013). Civil rights complaints cannot be
merely conclusory. Davis v. Hall, 992 F.2d 151, 152
(8th Cir. 1993); Parker v. Porter, 221
Fed.App’x 481, 482 (8th Cir. 2007).
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.App’x 926, 927
(8th Cir. 2008); see also 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).
Official Capacity Claims
has sued each of the defendants in their official capacity.
Docket 1 at 1. As the Supreme Court has stated, “a suit
against a state official in his or her official capacity is
not a suit against the official but rather is a suit against
the official’s office.” Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989)
(citing Brandon v. Holt, 469 U.S. 464, 471 (1985)).
Thus, it is a suit against the state itself. While
“[§] 1983 provides a federal forum to remedy many
deprivations of civil liberties . . . it does not provide a
federal forum for litigants who seek a remedy against a State
for alleged deprivations of civil liberties.”
Id. at 66. The Eleventh Amendment generally acts as
a bar to suits against a state for money damages unless the
state has waived its sovereign immunity. Id. But
when an official capacity claim is asserted for injunctive
relief against a state officer, the defense of qualified
immunity does not apply. See Pearson v. Callahan,
555 U.S. 223, 242-43 (2009).
as part of Landman’s requested remedy, he seeks to
recover money damages. Docket 1 ¶¶ 124-32.
Consequently, because Landman has sued defendants in their
official capacities, Landman has asserted a claim for money
damages against the state of South Dakota. The state of South
Dakota has not waived its sovereign immunity. Thus, to the
extent Landman seeks to hold defendants liable in their
official capacities for money damages, the court finds that
defendants are protected by sovereign immunity and are
entitled to judgment as a matter of law. Landman’s
claims against defendants in their official capacities for
injunctive relief survive screening.
First Amendment Claim
alleges that defendants violated his First Amendment right of
free speech to send and receive mail. Id. ¶ 94.
“The fact of confinement and the needs of the penal
institution impose limitations on constitutional rights,
including those derived from the First Amendment[.]”
Jones v. N.C. Prisoners’ Union, Inc., 433 U.S.
119, 125 (1997). “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) (citation omitted). In Turner v.
Safley, the Supreme Court held that prison rules and
restrictions on First Amendment rights are constitutional
only “if it is reasonably related to legitimate
penological interests.” 482 U.S. 78, 89 (1987). The
Turner Court provided four factors to determine
whether the 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.
Thongvanh v. Thalacker, 17 F.3d 256, 259 (8th Cir.
1994). This standard applies to both incoming and outgoing
Kaden, an inmate at South Dakota State Penitentiary
(SDSP) alleged that the prison mailroom’s rejection of
his magazine violated his rights under the First Amendment.
The complaint was dismissed by the district court under
§ 1915A. 651 F.3d at 968. The Eighth Circuit Court of
Appeals held that, “if a valid prison regulation is
applied to particular mail items in such a way as to negate
the legitimate penological interest, the regulation may be
unconstitutional as applied to those items. Before censoring
materials, prison authorities must review the content of each
particular item received.” Id. at 969 (citing
Murphy v. Mo. Dep’t of Corr., 372 F.3d 979,
986 (8th Cir. 2004)). The Eighth Circuit accepted
Kaden’s allegations as true on appeal and found them
“sufficient to plausibly state a claim under §
1983.” Id. The Eighth Circuit pointed out that
at the ...