v. Dooley
Filing
78
ORDER granting in part 56 Motion for Summary Judgment; adopting 74 Report and Recommendation; overruling 76 Objection to Report and Recommendation. Signed by U. S. District Judge Jeffrey L. Viken on 9/10/12. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JEREMY J. ROUBIDEAUX,
Plaintiff,
vs.
ROBERT DOOLEY, Warden, Mike
Durfee State Prison; ED
LIGHTENBERG, South Dakota
Board of Pardons and Paroles;
SAM BADURE, Parole Agent;
LELAND TJEERDSMA, Special
Security, Mike Durfee State
Prison; TIM REISCH, Secretary of
Correction; and SUE JACOBS,
Associate Warden, Mike Durfee
State Prison,
Defendants.
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CIV. 10-4126-JLV
ORDER
NATURE AND PROCEDURE OF THE CASE
Plaintiff Jeremy Roubideaux (“Roubideaux”), an inmate in the South
Dakota penal system, commenced this action seeking relief pursuant to
42 U.S.C. § 1983. (Docket 1). Mr. Roubideaux alleges defendants violated
his constitutional rights when his parole was revoked and he was not given
credit for his “street time.” Id. Mr. Roubideaux also alleges his rights were
violated when defendants failed to supply him with arch supports and
charged him for medical care. Id. Mr. Roubideaux further alleges that his
rights were violated by Leland Tjeerdsma (“Tjeerdsma”), an officer with the
facility where Mr. Roubideaux is housed. Id. Mr. Roubideaux contends that
Mr. Tjeerdsma improperly confiscated legal documents which belonged to
Mr. Roubideaux and made threatening statements toward Mr. Roubideaux
in retaliation for the filing of grievances. Id. Finally, Mr. Roubideaux alleges
inmates are charged fees for legal copies and toiletries and that third-parties
are overcharged when purchasing care packages for inmates through CBM
Food Services. Id.
The matter was referred to Magistrate Judge Veronica L. Duffy, who
ordered service upon defendants. (Dockets 9 & 12). Defendants moved for
summary judgment. (Docket 56). Defendants contend Mr. Roubideaux is
barred from proceeding in forma pauperis under 28 U.S.C. § 1915 as he
previously filed three or more actions which were dismissed as frivolous or
for failure to state a claim upon which relief could be granted. (Docket 57).
Defendants further assert Mr. Roubideaux cannot proceed on his claims as
he failed to exhaust available administrative remedies. Id. Defendants
finally contend Mr. Roubideaux’s claims fail on the merits. Id.
Magistrate Judge Duffy reviewed the record and pertinent law and
issued a report and recommendation concluding summary judgment in
favor of defendants is appropriate. (Docket 74). First, Magistrate Judge
Duffy concluded Mr. Roubideaux is properly proceeding in forma pauperis.
Next, the magistrate judge found Mr. Roubideaux had not exhausted the
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administrative remedies available to him with the exception of his claims
regarding his request for arch supports and his claims against Mr.
Tjeerdsma which have been fully exhausted. Id. at p. 20. Turning to Mr.
Roubideaux’s claim regarding his request for arch supports, the magistrate
judge found Mr. Roubideaux rescinded his medical services request for the
arch supports. Id. at p. 23. The magistrate judge concluded the denial of
the requested arch supports did not violate Mr. Roubideaux’s constitutional
rights under the Eighth Amendment as it did not rise to the level of an
objectively serious medical need. Id. The magistrate judge further found
Mr. Roubideaux’s retaliation claims against Mr. Tjeerdsma did not amount
to constitutional violations as the alleged threatening statements occurred
prior to the filing of Mr. Roubideaux’s grievances. Id. at p. 25. Based upon
these findings, the magistrate judge recommended summary judgment be
granted in favor of defendants. Id. at p. 26.
The parties were given fourteen days to object to the report and
recommendation. Id. Mr. Roubideaux lodged several objections to the
magistrate judge’s conclusions. (Docket 76). Accordingly, the court will
conduct a de novo review as to those objections. See 28 U.S.C.
§ 636(b)(1)(C).
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DISCUSSION
Before addressing the merits of Mr. Roubideaux’s objections, the court
notes Mr. Roubideaux’s assertion that he is unfamiliar with the court
system and “should be cut some slack.” (Docket 76 at p. 2). “Though pro
se complaints are to be construed liberally, they still must allege sufficient
facts to support the claims advanced.” Stone v. Harry, 364 F.3d 912, 914
(8th Cir. 2004) (citation omitted). The court understands Mr. Roubideaux is
not law-trained. However, a review of Mr. Roubideaux’s filings reveals he is
able to articulate his claims and the relief he seeks. As a result, the court
finds oral argument, as requested by Mr. Roubideaux, is unnecessary.
A.
Exhaustion
Mr. Roubideaux objects to the recommendation his unexhausted
claims be dismissed. (Docket 76). The magistrate judge found the only
claims which Mr. Roubideaux exhausted are his claims regarding his
request for arch supports and his claim that Mr. Tjeerdsma engaged in
retaliatory actions. (Docket 74). The magistrate judge further found
administrative remedies were available to Mr. Roubideaux which would have
allowed defendants to address his remaining claims. Id. at pp. 19-21. Mr.
Roubideaux does not contend he exhausted all of his claims. (Docket 76).
Rather, Mr. Roubideaux contends the available grievance process is futile.
Id.
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Title 42 of the United States Code, section 1997e(a) provides:
No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.
As a result, a prisoner must exhaust all available remedies prior to
commencing an action under § 1983. See Johnson v. Jones, 340 F.3d 624,
627 (8th Cir. 2003). The United States Court of Appeals for the Eighth
Circuit has “only excused inmates from complying with an institution’s
grievance procedures when officials have prevented prisoners from utilizing
the procedures, or when the officials themselves have failed to comply with
the grievance procedures.” Gibson v. Weber, 431 F.3d 339, 341 (8th Cir.
2005) (citation omitted).
There are no allegations officials prevented Mr. Roubideaux from
applying for relief through the grievance process. Moreover, there are no
facts provided which would support the contention that officials themselves
failed to comply with the procedures they implemented. The court finds Mr.
Roubideaux is not excused from the requirements of exhaustion. Thus, Mr.
Roubideaux’s unexhausted claims involving the revocation of his parole and
his “street time” credit, and charges for medical care, toiletries, copies, and
care packages must be dismissed without prejudice. See Johnson, 340 F.3d
at 627.
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B.
Claims Against Mr. Tjeerdsma
Mr. Roubideaux objects to the magistrate judge’s recommendation
regarding his claim of retaliation. (Docket 76). “To prevail on a retaliation
claim, [Mr. Roubideaux] must show 1) he engaged in a protected expression,
2) he suffered an adverse action, and 3) the adverse action was causally
related to the protected expression.” Nelson v. Shuffman, 603 F.3d 439,
450 (8th Cir. 2010). Mr. Roubideaux contends he was threatened by Mr.
Tjeerdsma after filing a grievance regarding his request for arch supports.
(Docket 74). The magistrate judge found, however, the filing of Mr.
Roubideaux’s grievances occurred after Mr. Tjeerdsma’s alleged retaliatory
threats, a finding which Mr. Roubideaux does not deny. Id. at p. 25. As a
result, Mr. Roubideaux has not shown he suffered an adverse action as the
result of his exercise of a constitutional right. See Nelson, 603 F.3d at 450.
Furthermore, the Eighth Circuit held that “[v]erbal threats are not
constitutional violations cognizable under § 1983.” Martin v. Sargent, 780
F.2d 1334, 1338 (8th Cir. 1985). Thus, Mr. Roubideaux cannot state a
claim for relief based solely upon Mr. Tjeerdsma’s alleged threats. The court
finds Mr. Roubideaux’s objection to the magistrate judge’s finding and
recommendation on this issue should be overruled.
Mr. Roubideaux objects to the magistrate judge’s finding and
recommendation regarding the confiscation of Mr. Roubideaux’s legal
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documents by Mr. Tjeerdsma. (Docket 76). These legal documents were
confiscated after being found in the possession of another inmate in
violation of prison policy. (Docket 74 at p. 12). The papers were later
returned to Mr. Roubideaux. Id. at p. 13. Mr. Roubideaux contends Mr.
Tjeerdsma “relished taking” the papers. (Docket 76 at p. 3). Mr.
Roubideaux, however, does not deny the papers were considered
contraband when in the possession of the other inmate and were properly
confiscated. (Docket 74). The Eighth Circuit held that “ ‘[t]he taking of a
prisoner’s legal papers states a claim under 42 U.S.C. §§ 1983 or 1985 if the
taking results in interference with or infringement of the prisoner’s
constitutional right of access to the courts.’ ” Holloway v. Dobbs, 715 F.2d
390, 392 (8th Cir. 1983) (quoting Tyler v. “Ron” Deputy Sheriff, 574 F .2d
427, 429 (8th Cir. 1978)). As there are no allegations the confiscation of
legal papers hindered Mr. Roubideaux’s access to the courts, the court
overrules the objection.
CONCLUSION
The court finds Mr. Roubideaux’s objections to the report and
recommendation to be without merit. The court, therefore, adopts the
report and recommendation of the magistrate judge with the modification
that the claims which were not exhausted will be dismissed without
prejudice. See Hammett v. Cofield, 681 F.3d 945 (8th Cir. 2012).
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Accordingly, it is hereby
ORDERED that the report and recommendation of the magistrate
judge (Docket 74) is adopted.
IT IS FURTHER ORDERED that plaintiff’s objections (Docket 76) are
overruled.
IT IS FURTHER ORDERED that defendants’ motion for summary
judgment (Docket 56) is granted with respect to the claim regarding the
requested arch supports and the claims against Mr. Tjeerdsma. These
claims are dismissed with prejudice.
IT IS FURTHER ORDERED that plaintiff’s remaining claims are
dismissed without prejudice for failure to exhaust the available
administrative remedies.
Dated September 10, 2012.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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