Bell v. Young

SHANE DOUGLAS BELL, Plaintiff, v. DARIN YOUNG, Warden, individual and official capacity;JENNIFER DREISKE, Deputy Warden, individual and official capacity;DENNIS KAEMINGK, Secretary of Corrections, individual and official capacity;BOB DOOLEY; Director of Prison Operations, individual and official capacity;CRAIG MOUSEL, Correctional Officer, individual and official capacity;and SCO MOISAN, individual and official capacity, Defendants.

4:16-CV-4046-VLD

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

June 27, 2018

MEMORANDUM OPINION AND ORDER

(DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, DOCKET #108)

INTRODUCTION

This matter is before the court on plaintiff Shane Douglas Bell's amended complaint pursuant to 42 U.S.C. § 1983. See Docket 89. The defendants have moved the court for summary judgment in their favor. See Docket 108. The parties have consented to this magistrate judge handling their case pursuant to 28 U.S.C. § 636(c).

FACTS

Pursuant to FED. R. CIV. P. 56(c) and Local Rule 56.1, the defendants submitted a statement of undisputed material facts (Docket 116). The plaintiff submitted a response (Docket 124) indicating whether he admitted or disputed each of the defendants' facts. In that same document (Docket 124) the plaintiff also submitted 59 additional facts which he asserts are material. The defendants have not disputed these additional facts. The facts below merge the defendants' statement of undisputed facts, the plaintiff's response to the same, and the plaintiff's statement of additional material facts.

A. Parties

Plaintiff, Shane Douglas Bell, is and has been at all time relevant to this lawsuit an inmate at the South Dakota State Penitentiary (SDSP) in Sioux Falls, South Dakota.

Defendant Darin Young is the Warden of the SDSP. Defendant Young has been the Warden of the SDSP since May 24, 2013.

Defendant Jennifer Dreiske is the Deputy Warden at the SDSP and has served in that position since March 26, 2013.

Defendant Denny Kaemingk is the South Dakota Secretary of Corrections and has served in that position since May 2, 2011.

Defendant Bob Dooley was the Warden of the Mike Durfee State Prison (MDSP) in Springfield, South Dakota and also served as the Director of Prison Operations for the South Dakota Department of Corrections (SDDOC).Mr. Dooley had served as the Director of Prison Operations for the SDDOC since June, 2013.¹

Defendant Moisan is a Senior Correctional Officer at the SDSP.

Defendant Craig Mousel is a correctional officer as the SDSP. CO Mousel has been employed by the SDDOC since August, 2007 and has at all times relevant to this lawsuit served as a property officer at the SDSP.

Mr. Bell brings this lawsuit against all defendants in both their official and individual capacities.

B. Mr. Bell's Amended Complaint

Mr. Bell's amended complaint (Docket 89) alleges four causes of action. Mr. Bell seeks declaratory and prospective injunctive relief pursuant to 42 U.S.C. § 1983 (p. 1) as well as Mr. Bell's attorney's fees (p. 16) based upon the alleged violation of his First Amendment rights, his right to be free from unlawful retaliation, and his right to equal protection under the law (class of one). See Docket 89, p. 1.

In count one, Mr. Bell alleges a violation of his First Amendment right to receive mail. Docket 89, p. 8. Mr. Bell does not specifically name any defendants in this cause of action, but generally refers to "the defendants." However, in the factual allegations which he asserts pertain to all counts in the amended complaint, Mr. Bell alleges that defendant Mousel, acting is his capacity as the property officer, is the individual who rejected Mr. Bell's books when the books arrived in the prison mail room. Mr. Bell asserts defendantMousel is the person who completed the "Supply Correspondence Rejection Notice" form advising Mr. Bell that the books in question were not delivered to him because the books violated prison policy. See Docket 89, ¶¶ 21-22. The named defendants who responded to Mr. Bell's grievances regarding the rejected books are Jennifer Dreiske and Warden Young. See Docket 1-1, p. 52.

This cause of action alleges the defendants' policy regarding incoming mail is facially invalid because it rests upon distinctions between "new," "used," and "donated" books which are vague and overbroad. Id. Mr. Bell further alleges that such distinctions are not rationally related to a valid penological interest. Id.

Alternatively, Mr. Bell asserts the policy is invalid as it has been applied to him. Docket 89 at pp. 8-9. Mr. Bell alleges that as it has been applied to him, the policy is so arbitrary and capricious as to constitute a violation of his First Amendment right to receive mail. Id. at p. 9.

Mr. Bell alleges the right to be free from selective and arbitrary enforcement of putatively neutral prison mail policies is clearly established, and any reasonable prison official should understand that a prisoner is entitled to be free from selective enforcement of such policies. Id.

In count two, Mr. Bell alleges that on its face, the SDSP and SDDOC pornography policy is unconstitutionally vague and overbroad. Docket 89, p. 10. Again, Mr. Bell does not bring this cause of action against any specific defendant, but generally alleges the defendants have violated his constitutional rights. A reading of the allegations which Mr. Bell asserts pertain to all causesof action, however, reveal that defendant Moisan rejected Mr. Bell's May, 2016, issue of Military History magazine based upon her interpretation of the SDDOC pornography policy. Unit Coordinator (UC) Hughes affirmed defendant Moisan's decision when UC Hughes rejected Mr. Bell's informal resolution request. Docket 89, ¶ 35. UC Hughes is not a party to this lawsuit. Also, defendant Warden Young affirmed this decision by rejecting Mr. Bell's request for administrative remedy. Docket 1-1, p. 30. Mr. Bell asserts the prison officials who are charged with enforcing the policy are unable to meaningfully differentiate between material that is prohibited by the terms of the policy and material that is allowed under the exceptions articulated by the policy. Docket 89, ¶ 75.

Alternatively, Mr. Bell asserts that even assuming the pornography policy is valid on its face, the policy has been unconstitutionally applied as to him. As an example, Mr. Bell asserts the policy was applied in an unconstitutional manner when the defendants refused to allow him to have the May, 2016, issue of Military History magazine. Docket 89, p. 5. Mr. Bell asserts that his administrative appeals regarding Military History were ruled upon by prison officials who had never seen the rejected magazine and therefore, could not have made an independent review of the allegedly offensive material. Id. Therefore, Mr. Bell alleges, the documented reasons for the rejection of the magazine are suspect and there is no rational relationship between the policy and the defendants' actions. Id.

Mr. Bell further alleges that the images contained within the Military History magazine should have fallen within one of the exceptions contained within the pornography policy because the image had extrinsic value. Mr. Bell asserts the defendants' denial of the Military History magazine adversely affected his First Amendment rights.

In count three, Mr. Bell alleges the defendants retaliated against him for exercising his constitutional rights. Docket 89, p. 11. Again, Mr. Bell does not name specific defendants in count three. The court therefore reviews the general allegations to discern the identities of the actors responsible for the actions Mr. Bell asserts were taken for a retaliatory motive.

Mr. Bell alleges he filed a previous lawsuit against prison officials in 2014 ("the 2014 lawsuit"). Id. He further alleges that, before he filed the 2014 lawsuit, he was allowed to receive books from various publishers without purchasing them ("donated books"). Id. Mr. Bell alleges that after filing the 2014 lawsuit, he was no longer allowed to receive the same donated books he was previously allowed to receive, ostensibly pursuant to OM 2.3.C.4. Docket 89, p. 12.

Mr. Bell alleges in count three that the SDDOC policy regarding a prisoner's conditional right to receive books has been arbitrarily and selectively enforced against him in a discriminatory manner, and that the timing and circumstances of the manner in which the policy has been enforced establish a causal nexus between his protected activity and the adverse action (rejecting books sent to him through the mail.). Docket 89, p. 12. Because the onlynamed defendant who is alleged to have been involved in Mr. Bell's receipt/rejection of books is defendant Mousel, the court understands Mr. Bell's retaliation claim to be made against defendant Mousel. Mr. Bell asserts the selective and arbitrary enforcement of OM 2.3.C.4 is direct evidence of the defendants' unlawful retaliation against him for filing the 2014 lawsuit.

Mr. Bell also alleges he has been subjected to retaliation because he was denied access to "kite" forms for the purpose of filing grievances. Docket 89, ¶ 58. Mr. Bell does not specify in his amended complaint who denied him the forms. Id. Mr. Bell's grievance forms, however, indicate that the person who he claims denied him grievance forms was UC Steinecky, who is not a named defendant in this lawsuit. See docket 109-1, p. 1. The persons who responded to Mr. Bell's grievance regarding UC Steinecky's alleged refusal to provide Mr. Bell with the forms were Krista Bast (not a named defendant in this lawsuit) and defendant Warden Young. See Docket Nos. 109-2, 109-4 and 109-8.

In the section of his amended complaint which articulates facts applicable to all claims, Mr. Bell alleges he was involved in an altercation on February 1, 2017, and that, based on how he was treated after the altercation, he believes prison staff retaliated against him. Docket 89, p. 12. He also claims staff failed to investigate or...