Abdulrazzak v. Smith

HAIDER SALAH ABDULRAZZAK, Plaintiff, v. J.C. SMITH, DUSTI WERNER, JUSHUA J. KAUFMAN,F/N/U BERTSCH, and JOHN DOE 2, Defendants.

4:17-CV-04058-KES

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

December 12, 2017

AMENDED ORDER DENYING IN PART AND GRANTING IN PART MOTION TO AMEND AND MISCELLANEOUS OTHER MOTIONS

INTRODUCTION

Plaintiff, Haider Salah Abdulrazzak, is an inmate at the Mike Durfee State Prison in Springfield, South Dakota. He filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Docket 1. Abdulrazzak was later granted permission to amend his complaint. Docket 13. He now has filed multiple motions to amend his complaint again. Dockets 17,18, 31, 44. The court grants Abdulrazzak's motions in part and denies the motions in part. The court also directs service in part.

FACTUAL BACKGROUND

The pertinent facts are set forth in the initial screening order at docket 13.

LEGAL STANDARD

Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend his pleadings once without court authorization if the motion is made within 21 days after service or within 21 days after service of a responsive pleading. "In all other cases, a party may amend its pleadings only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15 (a)(2). A motion to amend may be denied when the motion would cause undue delay, is made in bad faith or based on a dilatory motive on the part of the movant, or is futile. Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008). Leave of court is required here, because Abdulrazzak has previously amended his complaint.

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." 1915A(b).

DISCUSSION

Abdulrazzak has labeled the document at Docket 31-1 as his second amended complaint. The court will screen this document to determine if the motion to amend should be granted.¹

I. Count I

In Count I, Abdulrazzak raises claims under the First, Fifth, Eighth, and Fourteenth Amendments against South Dakota Secretary of Corrections (SD DOC) Dennis Kaemingk, SD DOC Policy Maker Aaron Miller, the SD Board of Pardons and Paroles (the Board), and the Director of the Board Doug Clark. Docket 31-1 at 4. Abdulrazzak states that he brings these claims against defendants "as municipalities" and against the Parole Board members, who he claims "adopted an unconstitutional arbitrary and discriminatory act." Id. He alleges that there is a policy to discriminate against him as a non-citizen of the United States. Id. He alleges that the policy required him to admit his guilt and participate in sex offender treatment, requirements that were not in his original parole agreement. Id.

First, with regard to the claims against Kaemingk, Miller, and Clark, the court addressed this claim previously in its order at Docket 13. The second amended complaint still alleges that the defendants are "municipalities." The defendants are not "municipalities." Municipalities are cities or towns—none of these defendants are cities or towns. Even if they were, a municipality may only be liable for a violation of constitutional rights if the violation was caused by its customs or policies. Crawford v. Van Buren Cty., 678 F.3d 666, 669 (8th Cir. 2012) (quoting Rynders v. Williams, 650 F.3d 1188, 1195 (8th Cir. 2011)). Abdulrazzak does not point to a custom or policy that was adopted by a city or town that violated his rights.

Second, Abdulrazzak alleges that the Parole Board members "adopted an unconstitutional arbitrary and discriminatory act by parole officer, where unlike U.S. Citizens, she required me to participate in a sex offender treatment and to admit the guilt almost 2 years into my initial parole release on 6/25/2014." Docket 31-1 at 4. He alleges that defendants adopted such custom to save the Department of Corrections money on rehabilitation programming. Abdulrazzak does not identify an official policy or custom that was adopted by the Parole Board. Instead, he references the actions of one parole officer. He does not explain how his citizenship status or nationality changed and caused the Parole Board members to begin discriminating against him two years after his initial parole release. Therefore, Abdulrazzak fails to state a claim upon which relief may be granted, and it would be futile to allow him to amend Count I.

II. Count II

In Count II, Abdulrazzak raises claims under the First, Fifth, Eighth, and Fourteenth Amendments against Warden Robert Dooley, Deputy Warden Susan Jacobs, and Unit Staff Member Kim Lippincott. Docket 31-1 at 6. Abdulrazzak claims that Dooley, Jacobs, and Lippincott violated his rights by failing to discuss the requirements of parole that were subsequently added. Id. He alleges that they discussed the parole requirements with United States citizens. Id. He also alleges that if defendants had discussed these parole requirements with him, he would have invoked his Fifth Amendment rights.Id. He adds no new allegations regarding these defendants as compared to his first amended complaint.

As this court previously found, based on the titles of these defendants, it appears that they are prison employees, and such defendants generally are not liable in claims concerning parole. See Munson v. Norris, 435 F.3d 877, 879-80 (8th Cir. 2006) (upholding dismissal of prisoner's claims that he was being forced to admit to crimes he was convicted of in sex offender treatment because he sued prison officials who had no authority over prison conditions).Thus, it would be futile to allow Abdulrazzak to amend his complaint to add this claim against Dooley, Jacobs and Lippincott.

Abdulrazzak moves to add defendants Board of Pardons and Paroles, Parole Board Director, Parole Officer Supervisor and Parole Officer (Dusti Werner) and Treatment Providers (Dakota Psychological Services, LLC, and Joshua Kaufman) as named defendants in Count II. With regard to the Board of Pardons and Paroles, it is well established that " 'in the absence of consent[,] a suit in which the [s]tate or one of its agencies or departments is named as [a] defendant is proscribed by the Eleventh Amendment.' " Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 645 U.S. 89, 100 (1984)). Thus, it would be futile to add the Board of Pardons and Paroles as a named defendant.

With regard to the Parole Board Director and the Parole Officer Supervisor, the proposed second amended complaint does not allege that theyhad personal involvement in the alleged deprivation of Abdulrazzak's constitutional rights. "A supervisor is not vicariously liable under 42 U.S.C. § 1983 for an employee's unconstitutional activity." White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994). Thus, it would be futile to add the two supervisors as named defendants in Count II.

Next, the court will discuss the new allegations against the parole officer. In McKune v. Lile, 536 U.S. 24 (2002) (plurality opinion), a plurality of the Supreme Court held that prison officials did not violate a prisoner's Fifth Amendment rights when they changed the prisoner's privilege status level and moved him to a maximum-security facility after he refused to participate in a sexual abuse treatment program, which required him to admit all prior improper sexual activities without guaranteed immunity. Id. at 36. The Court found that these consequences were not severe enough to constitute "compulsion" for purposes of the Fifth Amendment right against self-incrimination. Id. There, the plaintiff complained he would be transferred and lose privileges, but the Court observed that his decision would "not extend his term of incarceration" or affect his parole eligibility. Id. at 38.

The Eighth Circuit Court of Appeals discussed McKune in Entzi v. Redmann, 485 F.3d 998 (8th Cir. 2007). There, Entzi claimed that his probation officer compelled him to be a witness against himself by filing a petition to revoke his probation when it was discovered that Entzi had not finished the sex offender treatment. Id. at 1001. The state did not revoke Entzi's probation, but Entzi did have to pay an attorney to defend him in therevocation process. Id. at 1002. The Eighth Circuit found that this did not constitute compulsion. Id.

The Eighth Circuit found that, even assuming the probation officer's actions constituted compulsion, Entzi did not have a cause of action for damages under § 1983. Id. "[T]he general rule is that a person has no claim for civil liability based on the Fifth Amendment's guarantee against compelled self-incrimination unless compelled statements are admitted against him in a criminal case." Id. (citing Chavez v. Martinez, 538 U.S. 760, 767 (2003)). The "core guarantee" of the self-incrimination clause is evidentiary. Id. (citing Chavez, 538 U.S. at 778). Although the court "left open the possibility that a 'powerful showing' might persuade [it] to expand the protection of the self-incrimination clause to the point of civil liability," an expansion of the clause should not be implemented through money damages. Id. (quoting Chavez, 538 U.S. at 778) (citation omitted).

The Eighth Circuit found that Entzi had made no showing that evidentiary protections were inadequate to protect his constitutional rights. Id. at 1002-03. Here, Abdulrazzak alleges more serious consequences than paying an attorney to defend him: he alleges his parole was actually revoked. This was one of the consequences the Supreme Court stated may violate a prisoner's rights in McKune. See Bradford v. Mo. Dep't of Corr., 46 F. App'x 857, 858 (8th Cir. 2002) (finding prisoner stated a claim under McKune by claiming that defendants' violated his constitutional...