Hughbanks v. Fluke

KEVIN LEE HUGHBANKS Plaintiff, v. BRENT FLUKE, Warden, Mike Durfee State Prison, in his individual and official capacity; REBECCA SCHIEFFER, Associate Warden of Operations and Administrative Remedy Coordinator, Mike Durfee State Prison, in her individual and official capacity; ALEJANDRO REYES, Associate Warden of Programs and Americans with Disabilities Act Coordinator, Mike Durfee State Prison, in his individual and official capacity; LAINE SCHRYVERS, Former Ludeman and West Crawford Unit Manager, Mike Durfee State Prison, in their individual capacity; TAMMY DOYLE, Barracks Unit Manager, Mike Durfee State Prison, in her individual and official capacity; SECRETARY SOUTH DAKOTA DEPARTMENT OF HEALTH, Cabinet Secretary, in their individual and official capacity; DIRECTOR CORRECTIONAL HEALTH SERVICES, Director, All S.D. DOC Locations, in their individual and official capacity; CHS JANE DOE, Nurse, Mike Durfee State Prison, in her individual and official capacity; MARY CARPENTER, Medical Director, All S.D. DOC locations, in her individual and official capacity; STEPHANIE HAMILTON, Nurse, Mike Durfee State Prison, in her individual and official capacity; MIKE LEIDHOLT, Former Secretary of Corrections, All S.D. DOC Locations, in his individual capacity; TIM REISCH, Former Interim Secretary of Corrections, All S.D. DOC Locations, in his individual capacity; CHS JANE DOE, Nurse, South Dakota State Penitentiary, in her individual and official capacity; SAM BADURE, Unit Manager and SDSP Prison Rape Elimination Act Coordinator, South Dakota State Penitentiary, in his individual and official capacity; CODY HANSON, Former Case Manager and Current Unit Manager, South Dakota State Penitentiary, in his individual and official capacity; MELISSA MATURAN, SDSP Administrative Remedy Coordinator, South Dakota State Penitentiary, in her individual and official capacity; TAMMY TOP, Former Physician's Assistant, South Dakota State Penitentiary, in her individual and official capacity; JESSICA SCHRUER, South Dakota State Penitentiary, in her individual and official capacity; “X” SALOUM, Doctor of Medicine, Employed though Department of Health, South Dakota State Penitentiary, in his/her individual and official capacity; DARIN YOUNG, Former Chief Warden and Director of Operations, South Dakota State Penitentiary, in his individual capacity; JENNIFER DREISKE, Former Deputy Warden, South Dakota State Penitentiary, in her individual capacity; CHARISSA WAREMBOURG, Mailroom Officer, Mike Durfee State Prison, in her individual and official capacity; CHUCK GILCHRIST, Sex Offender Management Program Counselor/Therapist, Mike Durfee State Prison, in his individual and official capacity, a/k/a Charles Gilchrist; BRENNA CARLSON, Sex Offender Management Program Director, All S.D. DOC Facilities, in her individual and official capacity; MARK STOEBNER, Former Sex Offender Management Program Counselor/Therapist, Mike Durfee State Prison, in his individual and official capacity; JAMES HENRY, Corporal and Supervisor of Laundry, Mike Durfee State Prison, in his individual and official capacity; GLOBAL TEL LINK CORPORATION, All South Dakota Department of Corrections Facilities, in its individual and official capacity; SUMMIT FOOD SERVICE, LLC; Mike Durfee State Prison, in its individual and official capacity; UNKNOWN CORRECTIONAL HEALTH SERVICES EMPLOYEES, Unknown Positions, Mike Durfee State Prison, in their individual and official capacities; SOMP JOHN DOE, Unknown Contractor for Sex Offender Management Program, Mike Durfee State Prison, in his individual and official capacity; TIFFANY VOIGT, Unit Coordinator, Mike Durfee State Prison, in her individual and official capacity; DOUG CLARK, Deputy Secretary of Corrections, Former Interim Secretary of Corrections and Former Executive Director of South Dakota Board of Pardons and Paroles, in his individual and official capacity; DAN SULLIVAN, Warden of South Dakota State Penitentiary, in his official capacity; KELLIE WASKO, Cabinet Secretary South Dakota Department of Corrections, All S.D. DOC Locations, in their official capacity; GORDON SWANSON, Parole Board Member, All S.D. DOC Facilities, in his individual and official capacity; KENNETH ALBERS, Parole Board Member and Former Sheriff, All S.D. DOC Facilities, in his individual and official capacity; MARK SMITH, Parole Board Member, All S.D. DOC Facilities, in his individual and official capacity; MYRON RAU, Parole Board Member, All S.D. DOC Facilities, in his individual and official capacity; PAIGE WILBUR BOCK, Parole Board Member, All S.D. DOC Facilities, in her individual and official capacity; DAVE NELSON, Parole Board Member and Former Prosecutor, All S.D. DOC Facilities, in his individual and official capacity; KEVIN KRULL, Parole Board Member, All S.D. DOC Facilities, in his individual and official capacity; ANNE HAJEK, Parole Board Member, All S.D. DOC Facilities, in her individual and official capacity; ED LIGTENBERG, Parole Board Member and Former Executive Director of South Dakota Board of Pardons and Paroles, All S.D. DOC Facilities, in his individual and official capacity; GREGG GASS, Parole Board Member, All S.D. DOC Facilities, in his individual and official capacity; JODY JESSEN, Correctional Officer, Mike Durfee State Prison, in his/her individual and official capacity; ED LOEWE, Lieutenant of Special Investigative Unit, Mike Durfee State Prison, in his individual and official capacity; KIM HALVERSON, Summit Food Service, LLC, Director at Mike Durfee State Prison, in their individual and official capacity; and JARROD “X”, Former Summit Food Service, LLC, Director at Mike Durfee State Prison, in his individual capacity, Defendants.

No. 4:21-CV-04167-KES

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

February 10, 2023

ORDER ON PLAINTIFF'S PENDING MOTIONS

KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE

Plaintiff Kevin Lee Hughbanks, filed a pro se lawsuit under 42 U.S.C § 1983. Dockets 5, 20. Hughbanks alleges that his conditions of confinement at Mike Durfee State Prison (MDSP) violate his constitutional rights. Hughbanks has named as defendants current and former employees of the South Dakota Department of Corrections and Department of Health (State defendants), Summit Food Service and its current and former employees, and Global Tel Link Corporation. Docket 20 at 1-10. Hughbanks alleges deliberate indifference to his serious medical needs, unsanitary conditions, and inadequate nutrition in violation of his Eighth Amendment right to be free from cruel and unusual punishment. He alleges lack of meaningful access to the courts in violation of his First Amendment rights. He challenges the inmate correspondence policy, contending it violates his First Amendment rights. He also challenges the Sex Offender Management Program policies, contending they violate his Fourteenth Amendment right to due process and his Fifth Amendment right to be free from self-incrimination.

Hughbanks has filed motions seeking assistance with service substitution of parties, preliminary injunctive relief and additional miscellaneous relief. Below the court outlines additional factual and procedural background pertinent to the court's ruling on each of the pending motions.

I. Motions for Assistance with Service

A. Department of Corrections

After the amended complaint was filed, the clerk's office issued thirty-seven summonses and delivered the summonses, along with the amended complaint and the amended 1915A screening order, to the United States Marshal Service (USMS) in Sioux Falls for service. Docket 21. The USMS was unable to serve Jennifer Dreiske, Mike Leidholt, Tim Reisch, Laine Schryers, Tammy Top, and Darin Young because they are no longer employed by the Department of Corrections. Docket 25. The USMS was also unable to serve the summonses issued to Ed Ligtenberg, Anne Hajek, Kevin Krull, Mark Smith, Paige Wilbur Bock, and Dave Nelson. Docket 40. Ligtenberg, Hajek, Krull, Smith, and Wilbur Bock are auxiliary members of the South Dakota Board of Pardons and Paroles and are not regularly at the address in the summonses. Id. at 4, 6, 7, 9, 10, 12, 13, 15, 16, 18. Nelson is no longer at the address in the summons. Id. at 19, 21. Hughbanks has filed motions for assistance with service. See Dockets 62, 80, 85, 95, 110.

Hughbanks has not filed a motion to extend the time for service, but the court construes his motion for a temporary restraining order (Docket 80) to include a request that the court find that there is good cause to extend the time for service. More than ninety days have elapsed since the amended complaint was filed, but the court finds that there is good cause for extending the time for service on the defendants who are no longer employed with the Department of Corrections and the auxiliary members of the South Dakota Board of Pardons and Paroles. Fed.R.Civ.P. 4(m) (“[I]f the plaintiff shows good cause . . ., the court must extend the time for service for an appropriate period.”). After the summonses for Dreiske, Leidholt, Reisch, Schryers, Top, Young, Ligtenberg, Hajek, Krull, Smith, Wilbur Bock, and Nelson were returned unexecuted, Hughbanks diligently attempted to obtain these defendants' addresses. See Dockets 62, 80, 85, 95, 110. But he does not have internet access, and prison policy prohibits him from attempting to locate the addresses of the unserved defendants. Docket 80 at 4. Hughbanks has been unable to locate addresses for the defendants who are no longer employed with the Department of Corrections or the auxiliary parole board members. Docket 110 at 1. The court extends the time for serving defendants Dreiske, Leidholt, Reisch, Schryers, Top, Young, Ligtenberg, Hajek, Krull, Smith, Wilbur Bock, and Nelson until March 28, 2023.

In his motion for names and service addresses (Docket 62), Hughbanks requests that counsel for...