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

Filing 286

ORDER denying 270 Motion to modify the remedial order; denying 273 Motion to modify order; denying 275 Motion for Hearing; denying 276 Motion for further relief; denying 279 Ex Parte Motion to remove current counsel; denying 280 Moti on to Appoint Replacement Counsel; denying 281 Motion for a certified question regarding modification and amendment; denying without prejudice 282 Motion to Amend; denying without prejudice 284 Motion to amend inter alia. Signed by U.S. District Judge Karen E. Schreier on 8/9/17. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
NATIVE AMERICAN COUNCIL OF
TRIBES,
BLAINE BRINGS PLENTY, and
CLAYTON SHELDON CREEK,
Plaintiffs,
vs.
DOUGLAS WEBER, Warden of the
South Dakota State Penitentiary; and
DENNIS KAEMINGK, Secretary of the
Department of Corrections,

4:09-CV-04182-KES

ORDER DENYING MOTIONS TO
MODIFY REMEDIAL ORDER,
DENYING MOTION FOR PERMANENT
INJUNCTION AND HEARING,
DENYING MOTION TO REPLACE
COUNSEL, AND DENYING MOTIONS
TO AMEND

Defendants.
INTRODUCTION
Plaintiffs, Native American Council of Tribes (NACT), Blaine Brings
Plenty, and Clayton Creek, succeeded in a court trial against defendants,
Douglas Weber and Dennis Kaemingk, showing that a complete ban of tobacco
in Department of Corrections (DOC) facilities violates the Religious Land Use
and Institutionalized Persons Act (RLUIPA). Native Am. Council of Tribes v.
Weber, 897 F. Supp. 2d 828 (D.S.D. 2012) (NACT I).
On January 25, 2013, this court entered a remedial order that afforded
inmates who participate in the Native American religion the opportunity to use
tobacco during certain religious ceremonies. Docket 196. On appeal, the Eighth
Circuit Court of Appeals affirmed the remedial order. Native Am. Council of
Tribes v. Weber, 750 F.3d 742 (8th Cir. 2014) (NACT II). On September 23,

2015, this court amended that order. Docket 248. Creek now moves to modify
the order, for a preliminary injunction and hearing, to remove counsel, and to
amend the complaint. Docket 270; Docket 273; Docket 275; Docket 276;
Docket 279; Docket 280; Docket 281; Docket 282; Docket 284.
DISCUSSION
I.

Motion to Modify Remedial Order
Creek moves to modify the remedial order to increase the volume of

tobacco allowed in the mixtures to five percent tobacco by volume. Docket 270;
Docket 271 at 4; Docket 273. Creek argues that the court should increase the
permitted volume of tobacco because the Eighth Circuit acknowledged that a
mixture that contains one to five percent tobacco would be appropriate for
Lakota religious ceremonies and the DOC has not met its “goal of preventing
contraband tobacco from entering the prisons [sic] systems.” Docket 271 at 6.
The standard for modifying a remedial order is governed by Fed. R. Civ.
P. 60(b)(5), 1 18 U.S.C. § 3626, 2 and the test set out in Rufo v. Inmates of Suffolk
County Jail, 502 U.S. 367, 383 (1992). 3 “[A] party seeking modification of a
consent decree bears the burden of establishing that a significant change in
circumstances warrants revision of the decree.” Rufo, 502 U.S. at 383. “A party
Fed. R. Civ. P. 60(b)(5) allows a court to relieve a party from a final judgment
or order if applying the order prospectively would no longer be equitable.
2 18 U.S.C. § 3626 provides that any remedial order must be “narrowly drawn,
extends no further than necessary to correct the violation of the Federal right,
and is the least intrusive means necessary to correct the violation of the
Federal right.”
3 In Rufo, the Supreme Court considered the standard for addressing consent
decrees, but the standard also applies to modifying remedial orders. Agostini v.
Felton, 521 U.S. 203, 215 (1997).
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seeking a modification of a consent decree may meet its initial burden by
showing either a significant change in either factual conditions or in law.” Id. at
384.
Creek has failed to show a significant change in facts or law that would
satisfy the standard for modifying a remedial order. Creek argues that the
order should be modified to allow five percent tobacco by volume in the
mixtures used for Native American religious ceremonies because the Eighth
Circuit acknowledged in its opinion that one to five percent of tobacco in a
mixture is satisfactory for practicing religious ceremonies. Docket 271 at 4.
This argument does not meet the Rufo standard because it is not a change in
fact. When the Eighth Circuit originally upheld the remedial order in NACT II, it
considered the testimony at trial that one to five percent tobacco was
satisfactory to practice the Lakota religion. NACT II, 750 F.3d at 752. Thus,
there has not been a change in fact since the Eighth Circuit upheld the
remedial order.
Creek also argues that the DOC has not upheld its goal of preventing
contraband tobacco from entering the prison. Docket 271 at 3 (“[U]nauthorized
tobacco continues to enter the South Dakota prison system through visitors,
employees, inmates from trustee units, inmates from other facilities, and
volunteers.”). Creek does not provide any evidence that the DOC is failing to
prevent contraband tobacco from entering the prisons. But even if the DOC is
struggling to keep contraband tobacco out of the prisons, that does not warrant
modifying the order. Defendants originally argued that they had a compelling
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interest in maintaining security by preventing tobacco from being used for nonreligious purposes in the prisons, and the Eighth Circuit found that the
remedial order balanced the DOC’s interest with the prisoners’ religious rights.
NACT II, 750 F.3d at 750-51. The fact that defendants are still unable to
prevent contraband tobacco from entering the prisons is not a significant
change in facts because the DOC was unable to prevent contraband from
entering the prisons at the time of the order. Thus, Creek’s motions to modify
the order (Docket 270; Docket 273) are denied.
Creek also attempts to amend the order to add provisions regarding the
seven sacred ceremonies and prisoners’ access to a sweatlodge. Docket 271 at
5-6. The scope of this case and this remedial order is limited to tobacco use
and this case has already been decided on the merits. Thus, any attempts to
amend the remedial order must be limited to tobacco use, and the remedial
order may only be amended in the event of a substantial change in facts or law.
Any new claims alleging that DOC policies are restricting additional religious
rights of prisoners, such as the seven sacred ceremonies, access to a sweat
lodge, or any other non-tobacco related claims, should be brought in a new
complaint and not as an amendment to the remedial order.
II.

Motion for Temporary Restraining Order and Hearing
Creek moves for a temporary restraining order (TRO) under Fed. R. Civ.

P. 65(b) until such time as this court can have a hearing to determine if a
preliminary injunction is justified. Docket 275; Docket 276. The four factors
the court considers in determining whether to grant preliminary injunctive
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relief are: “ ‘(1) the threat of irreparable harm to the movant; (2) the state of
balance between this harm and the injury that granting the injunction will
inflict on other parties litigant; (3) the probability that movant will succeed on
the merits; and (4) the public interest.’ ” Barrett v. Claycomb, 705 F.3d 315,
320 (8th Cir. 2013) (quoting Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109,
114 (8th Cir. 1981)). The Eighth Circuit Court of Appeals has “observed that
the ‘likelihood of success on the merits is most significant.’ ” Id. (quoting S.J.W.
ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012)).
Creek does not precisely identify the relief requested, 4 but to the extent
Creek is asking this court to impose a temporary restraining order prohibiting
defendants from banning the use of tobacco in Native American religious
ceremonies, this request is denied as moot because that exact language is
already part of this court’s order dated January 25, 2013. Docket 196 at 10. To
the extent that Creek is requesting a temporary restraining order prohibiting
defendants from restricting the mixture used in Native American ceremonies to
one percent tobacco, this request is denied because this court’s order
specifically permits defendants to restrict the mixtures to one percent tobacco,
and Creek does not show a significant change in facts or law to warrant
amending the remedial order. Thus, Creek has a low probability of success on
the merits. Docket 196 at 3. Creek’s motion for a temporary restraining order
In his motion, Creek states that “reversing the tobacco ban” would not waste
resources and argues that the mixture should be increased to five percent.
Docket 277 at 3-4. Thus, it is unclear whether Creek seeks a TRO to prohibit a
tobacco ban or to prohibit defendants from restricting the mixture to one
percent tobacco.
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and a hearing (Docket 275; Docket 276) are denied.
III.

Motion to Remove and Replace Counsel
Creek moves to remove Pamela R. Bollweg, Sara E. Show, and Ronald A.

Parsons as counsel for plaintiff and to appoint new counsel. Docket 279;
Docket 280. On September 20, 2011, this court appointed Pamela R. Bollweg,
Sara E. Show, and Ronald A. Parsons as counsel for plaintiffs, to serve without
compensation except such as they were entitled under 42 U.S.C. § 1988 or
from the Fifth Amended Plan for the Attorney Admission Fund. Docket 111.
The court has the discretion to appoint counsel to represent indigent civil
litigants. 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 may also appoint
substitute counsel when warranted. Rayes, 969 F.2d at 703. But “indigent
litigants should not be permitted to ‘shop around’ for appointed counsel.” Id. at
702. Whether to permit a substitution of counsel rests within the discretion of
the court. Lewis v. Lane, 816 F.2d 1165, 1169 (7th Cir. 1987). In analyzing
whether a plaintiff needs an attorney, the court looks to several, nonexhaustive factors: the likelihood that the plaintiff and the court will benefit
from assistance of counsel; the case’s factual complexity; the plaintiff’s ability
to investigate the facts; the existence of conflicting testimony; and the
complexity of the legal issues. Rayes, 969 F.2d at 703 (citing to Lewis, 816
F.2d at 1169 (citations omitted)).
Here, this court previously made a determination that plaintiffs and the
court will benefit from assistance of counsel. Docket 109 at 26. But Clayton
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Creek has not made a showing sufficient to support a substitution of counsel.
Creek’s main objection is that counsel has not filed a motion to amend the
remedial order. This court found that there has not been a significant change
in law and fact to warrant an amendment. Thus, counsel’s decision not to file a
motion to amend does not warrant substitution of counsel. Further, NACT
cannot be represented pro se 5 and Creek does not identify a replacement
attorney in his motion.
IV.

Motion for Certified Question
Creek moves under Fed. R. App. P. 33(a) for a “certified question.” Docket

281. Federal Rule of Appellate Procedure 33 6 provides that a court of appeals
may “direct the attorneys—and, when appropriate, the parties—to participate
in one or more conferences to address any matter that may aid in disposing of
the proceedings.” Fed. R. App. P. 33. It does not give this court any authority to
certify a question to the Court of Appeals. Further, a certified question is
permitted under the Rules of the Supreme Court and allows a United States
While individuals are able to represent themselves pro se under 28 U.S.C.
§ 1654, that statute does not apply to corporations. Carr Enters., Inc. v. United
States, 698 F.2d 952, 953 (8th Cir. 1983).
6 The Federal Rule of Appellate Procedure 33 states:
The court may direct the attorneys—and, when appropriate, the
parties—to participate in one or more conferences to address any
matter that may aid in disposing of the proceedings, including
simplifying the issues and discussing settlement. A judge or other
person designated by the court may preside over the conference,
which may be conducted in person or by telephone. Before a
settlement conference, the attorneys must consult with their
clients and obtain as much authority as feasible to settle the case.
The court may, as a result of the conference, enter an order
controlling the course of the proceedings or implementing any
settlement agreement.
Fed. R. App. P. 33.
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Court of Appeals to certify to the Supreme Court a question of law on which it
seeks instruction. Sup. Ct. R. 19.1. It does not allow this court to answer a
question of law presented by a party. Thus, Creek’s motion (Docket 281) is
dismissed.
V.

Motion to Grant Amend Inter Alia
Creek moves to amend his complaint. Docket 282: Docket 284. In this

court’s June 1, 2010 scheduling order, the parties were given until June 28,
2010, to amend the pleadings. Docket 69 at 2. “[A] motion for leave to amend
filed outside the district court’s Rule 16(b) scheduling order requires a showing
of good cause[.]” Williams v. TESCO Servs., Inc., 719 F.3d 968, 977 (8th Cir.
2013). Creek has not shown good cause. Therefore, his motion to amend is
denied. See Harris v. FedEx Nat’l LTL, Inc., 760 F.3d 780, 786 (8th Cir. 2014)
(“A district court acts ‘within its discretion’ in denying a motion to amend
which made no attempt to show good cause.”) (citations omitted).
Further, this case has been decided on the merits. After a case is decided
on the merits, the district court may amend the remedy as it relates to the
cause of action that was alleged in the complaint and adjudicated on the
merits. Plaintiff may not add new claims to the complaint after there has been
a final adjudication. Thus, any claims that Creek moves to add to this
complaint should instead be filed as a new complaint. The court would not
treat Creek or Brings Plenty as a barred filer for raising new RLUIPA claims.
CONCLUSION
Based on the above findings, it is ORDERED
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1. Creek’s motion to modify the remedial order (Docket 270) is denied.
2. Creek’s motion to modify order (Docket 273) is denied.
3. Creek’s motion for a hearing (Docket 275) is denied.
4. Creek’s motion for further relief (Docket 276) is denied.
5. Creek’s ex parte motion to remove current counsel (Docket 279) is
denied.
6. Creek’s motion to appoint replacement counsel (Docket 280) is denied.
7. Creek’s motion for a certified question regarding modification and
amendment (Docket 281) is denied.
8. Creek’s motion to amend (Docket 282) is denied without prejudice.
9. Creek’s motion to grant amend inter alia (Docket 284) is denied
without prejudice.
Dated August 9, 2017.

BY THE COURT:

/s/ Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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