Native American Council of Tribes et al v. Weber et al

Filing 106

ORDER denying 97 Motion to transfer; denying 100 Motion for Hearing; granting 103 Motion to Dismiss Party. Shaun Garnette, Nephi Antelope, and David Deloria are dismissed. Signed by Chief Judge Karen E. Schreier on 9/9/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
NATIVE AMERICAN COUNCIL OF
TRIBES,
BLAINE BRINGS PLENTY,
SHAUN GARNETTE,
NEPHI ANTELOPE,
BRIAN DUBRAY,
CLAYTON CREEK, and
DAVID DELORIA,
Plaintiffs,
vs.
DOUGLAS WEBER, Warden of the
South Dakota State Penitentiary,
TIMOTHY REISCH, Secretary of the
Department of Corrections, and
MARTY JACKLEY, Attorney General,
Defendants.

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Civ. 09-4182-KES

ORDER

Plaintiff Clayton Creek moves to consolidate a hearing on this case with
a trial on the merits and to appoint counsel for plaintiff Native American
Council of Tribes (NACT). Docket 100. Clayton Creek also moves to transfer
from his current institutional facility to the South Dakota State Penitentiary
(Penitentiary). Docket 97. Defendants, Douglas Weber, Timothy Reisch, and
Marty Jackley (collectively defendants), resist. Defendants move to dismiss
certain plaintiffs from this case. Docket 103. Plaintiffs do not resist
defendants’ motion. Plaintiff Clayton Creek’s motions to consolidate, appoint

an attorney, and transfer are denied. Defendants’ motion to dismiss certain
plaintiffs is granted.
BACKGROUND
Plaintiffs brought suit against defendants after defendants implemented
a policy in October of 2009 to remove tobacco from a tobacco/botanical
mixture used by plaintiffs in their Native American religious ceremonies.
Plaintiffs allege violations of the Religious Land Use and Institutionalized
Persons Act (RLUIPA), 42 U.S.C. § 2000cc, the First Amendment, the
Fourteenth Amendment, the American Indian Religious Freedom Act, 42
U.S.C. § 1996, and various violations of international law. Plaintiffs seek
injunctive relief to prohibit defendants from continuing to implement the
October 2009 policy.
Plaintiffs were represented by counsel until their attorney moved to
withdraw without substitution. Docket 85. After allowing plaintiffs an
opportunity to secure substitute counsel, the court granted the motion to
withdraw. Docket 95. Plaintiffs are now unrepresented. Clayton Creek
appears to have taken a leadership role in representing plaintiffs’ interest in
this action because he is the only plaintiff who responded to defendants’
summary judgment motion. Docket 102.
Clayton Creek is currently incarcerated at the Mike Durfee State Prison
in South Dakota. Plaintiffs Blaine Brings Plenty and Brian Dubray are
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incarcerated at the Penitentiary. Plaintiff Shaun Garnette is now incarcerated
at a facility in Indiana. Plaintiffs Nephi Antelope and David Deloria have been
discharged from the Penitentiary.
DISCUSSION
I.

Clayton Creek’s Motion to Consolidate
Clayton Creek moves under Rule 65(a)(2) for a hearing and to

consolidate that hearing with the trial on the merits. The court can
consolidate a hearing on a preliminary injunction motion with a trial on the
merits. Fed. R. Civ. P. 65(a)(2). There currently is no pending preliminary
injunction motion. The court further finds that no hearing is necessary at this
time. Thus, Clayton Creek’s motion to consolidate and for a hearing is
denied.
II.

Clayton Creek’s Motion to Appoint Counsel
Clayton Creek also moves this court to appoint counsel for NACT. In an

order dated July 18, 2011, the court allowed NACT’s counsel to withdraw
without substitution and gave NACT until August 15, 2011, to secure
substitute counsel. Docket 95. NACT did not secure new counsel and was
technically in default on August 15, 2011. See Ackra Direct Mktg. Corp. v.
Fingerhut Corp., 86 F.3d 852, 857 (8th Cir. 1996) (reasoning that a
corporation is technically in default on the date its counsel is permitted to
withdraw unless substitute counsel has entered an appearance).
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A civil litigant has no constitutional or statutory right to a
court-appointed attorney. Rayes v. Johnson, 969 F.2d 700, 702 (8th Cir.
1992) (citing Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985)). The court
has the discretion to appoint counsel to represent indigent civil litigants. Id.
(citing Wiggins, 753 F.2d at 668). Because there are other individual plaintiffs
who are still viable parties to this action, and these plaintiffs can represent
their own interests and the interests of other Native American inmates who
may be impacted by the ultimate outcome of this case, Clayton Creek’s
motion to appoint an attorney for NACT is denied.
III.

Clayton Creek’s Motion to Transfer
Clayton Creek moves under Rule 26(f) for a transfer to the Penitentiary

so that he can meet and confer with the other plaintiffs and defendants on
discovery matters. Rule 26(f) concerns planning conferences for discovery and
confers no power on this court to transfer an incarcerated person from one
facility to another. See Fed. R. Civ. P. 26(f) (setting out the rules for discovery
planning). Moreover, on May 10, 2010, the parties already met and conferred
pursuant to Rule 26(f). See Docket 68 (containing the parties’ Joint Form 52
Report).
“The Supreme Court has made it abundantly clear that a prisoner has
no constitutional right to chose [sic] the particular correctional facility he
wishes to be housed at or to be transferred to another facility upon request.”
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Jordan v. Longley, No. Civ. 08-4080-RHB, 2008 WL 4691813, at *4 (D.S.D.
Oct. 20, 2008) (citing Olim v. Wakinekona, 461 U.S. 238 (1983); Meachum v.
Fano, 427 U.S. 215 (1976)). Only if the prison officials have failed to follow
their established procedures for placing an inmate into a specific program will
the court review an inmate’s placement at a particular institution. See, e.g.,
LeMaster v. Hollingsworth, No. Civ. 11-4019, 2011 WL 3322227, at *3 (D.S.D.
Aug. 2, 2011) (reasoning that the Bureau of Prisons cannot automatically
deny an inmate’s request for a transfer to a Residential Re-entry Center
because there are established procedures for considering such a transfer).
Clayton Creek does not argue that defendants failed to follow an
established procedure in placing him at his current facility. Even though
Clayton Creek appears to have voluntarily agreed to file pleadings in this case
on behalf of all plaintiffs, that fact does not alter the court’s deference to
prison officials in placing inmates at the appropriate institution. Thus,
Clayton Creek’s motion to transfer is denied.
IV.

Defendants’ Motion to Dismiss Certain Plaintiffs
Defendants move to dismiss plaintiffs Nephi Antelope, David Deloria,

and Shaun Garnette from this action because they are no longer in the
custody of the South Dakota Department of Corrections (SDDOC). Antelope is
now in federal custody in Indiana and Deloria and Garnette have been
discharged from the Penitentiary.
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Plaintiffs’ complaint seeks injunctive relief, and not monetary damages,
to enjoin defendants from continuing to implement the October 2009 policy,
which only affects facilities managed by the SDDOC in South Dakota. Docket
71. “It is well-established that ‘a prisoner’s claim for injunctive relief to
improve prison conditions is moot if he or she is no longer subject to those
conditions.’ ” Brown ex rel. Indigenous Inmates at N.D. State Prison v.
Schuetzle, 368 F. Supp. 2d 1009, 1017-18 (D.N.D. May 4, 2005) (quoting
Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985)). “Therefore, when a
prisoner is transferred he no longer has standing,” and his case for injunctive
relief regarding prison conditions is moot. Id. (citing Martin, 780 F.2d at 1337;
Smith v. Hundley, 190 F.3d 852, 855 (8th Cir. 1999)). Similarly, if an inmate
is discharged, his claim for injunctive relief against that facility is moot. See,
e.g., Cockcroft v. Kirkland, 548 F. Supp. 2d 767, 778 (N.D. Cal. 2008) (“When
an inmate is released from prison or transferred to another prison and there
is no reasonable expectation nor demonstrated probability that he will again
be subjected to the prison conditions from which he seeks injunctive relief,
the claim for injunctive relief should be dismissed as moot.” (citations
omitted)).
The claims for injunctive relief by Deloria and Garnette to enjoin
defendants from continuing to implement the October 2009 policy are moot
because Deloria and Garnette are no longer incarcerated at defendants’
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institutions. Antelope’s claims for injunctive relief are also moot because he is
presently incarcerated at a facility in Indiana and the outcome of this case
will have no impact on him. Thus, defendants’ motion to dismiss Deloria,
Garnette, and Antelope is granted. Accordingly, it is
ORDERED that plaintiff Clayton Creek’s motion to consolidate and to
appoint counsel for plaintiff NACT (Docket 100) is denied.
IT IS FURTHER ORDERED that plaintiff Clayton Creek’s motion to
transfer (Docket 97) is denied.
IT IS FURTHER ORDERED that defendants’ motion to dismiss plaintiffs
Shaun Garnette, Nephi Antelope, and David Deloria (Docket 103) is granted.
Dated September 9, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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