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Landman v. Kaemingk

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

September 27, 2019

BURTON KENNETH LANDMAN, Plaintiff,
v.
DENNIS KAEMINGK, SUED IN OFFICIAL AND/OR INDIVIDUAL CAPACITY; ROBERT DOOLEY, SUED IN OFFICIAL AND/OR INDIVIDUAL CAPACITY; BRENT FLUKE, SUED IN OFFICIAL AND/OR INDIVIDUAL CAPACITY; ALEX REYES, SUED IN OFFICIAL AND/OR INDIVIDUAL CAPACITY; KARISSA LIVINGSTON, SUED IN OFFICIAL AND/OR INDIVIDUAL CAPACITY; AND JANE/JOHN DOE STAFF WORKING IN MDSP MAILROOM ON/AFTER 5/1/2018, SUED IN THEIR OFFICIAL AND/OR INDIVIDUAL CAPACITIES; Defendants.

          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

          KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Plaintiff, 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.

         FACTUAL BACKGROUND

         According 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.

         Since 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.

         The day 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.

         On June 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.

         Because 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.

         After 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.

         Landman 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.

         On 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.

         LEGAL STANDARD

         The 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).

         A 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).

         DISCUSSION

         I. Official Capacity Claims

         Landman 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).

         Here, 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.

         II. First Amendment Claim

         Landman 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 mail. Id.

         In 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 ...


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