Scheetz v. Kaemingk et al

Filing 15

ORDER dismissing complaint in part; directing service of complaint; denying 8 Motion for Preliminary Injunction; denying 11 Motion to Appoint Counsel. Signed by U.S. District Judge Karen E. Schreier on 3/4/2014. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DARYL SCHEETZ,
Plaintiff,
vs.
DENNIS KAEMINGK, Secretary of
Corrections, in his individual and
official capacity;
ROBERT DOOLEY, Chief Warden
and Director of Prison Operations, in
his individual and official capacity;
DARREN YOUNG, Warden, in his
individual and official capacity;
TROY PONTO, Associate Warden, in
his individual and official capacity;
ARTHUR ALLCOCK, Associate
Warden, in his individual and
official capacity;
CLIFFORD FANTROY, Director of
Security, in his individual and
official capacity;
CRYSTAL VANVOOREN, Major
Special Security, in her individual
and official capacity;
HUNTER SUMMERS, Lieutenant
Special Security, in his individual
and official capacity; and
JOHN DOE,
Defendants.

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Civ. 13-4144-KES

ORDER DISMISSING
COMPLAINT IN PART, DENYING
MOTION FOR PRELIMINARY
INJUNCTION, DENYING MOTION
TO APPOINT COUNSEL, AND
DIRECTING SERVICE OF
COMPLAINT

Plaintiff, Daryl Scheetz, is an inmate at the South Dakota State
Penitentiary (SDSP) in Sioux Falls, South Dakota. Scheetz filed a pro se civil
rights lawsuit pursuant to 42 U.S.C. § 1983 and requested leave to proceed in

forma pauperis pursuant to 28 U.S.C. § 1915. Dockets 1, 2. On January 6,
2014, the court granted Scheetz leave to proceed in forma pauperis and
ordered him to pay an initial partial filing fee by February 6, 2014. Docket 7.
Scheetz has since paid the initial partial filing fee. Docket 14. Furthermore,
Scheetz has filed a motion for preliminary injunction (Docket 8) and a motion
to appoint counsel (Docket 11).
The court must now screen Scheetz’s complaint to determine whether
any claims should be dismissed. Pursuant to the PLRA, the court must
dismiss an action or any portion thereof if the prisoner has raised a claim
that “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may
be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)–(iii).
STANDARD OF REVIEW
A claim “is frivolous where it lacks an arguable basis in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). The court may, therefore,
dismiss a claim as frivolous when it is “based on an indisputably meritless
legal theory” or where the factual contentions “are clearly baseless.” Id. at
327. The court may dismiss a complaint for failure to state a claim when the
plaintiff fails to plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In reviewing
a complaint for failure to state a claim, “[t]he court must presume that the

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factual allegations in the complaint are true and accord all reasonable
inferences from those facts to the [pleader].” Valiant-Bey v. Morris, 829 F.2d
1441, 1443 (8th Cir. 1987) (citing Holloway v. Lockhart, 792 F.2d 760, 762
(8th Cir. 1986)).
Pro se complaints, “ ‘however inartfully pleaded,’ [are] held to ‘less
stringent standards than formal pleadings drafted by lawyers.’ ” Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)); see also Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995)
(noting that “civil rights pleadings should be construed liberally”).
Nonetheless, a pro se complaint must comply with the minimal requirements
set forth in the Federal Rules of Civil Procedure, which specifically require
pleadings to contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a pro se
complaint need not contain detailed factual allegations, it must contain “more
than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555. Simply stated, a pro se
complaint must “allege facts sufficient to support the claims advanced.” Stone
v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). The court is not required to
“supply additional facts, nor will [it] construct a legal theory that assumes
facts that have not been pleaded.” Id. (citing Dunn v. White, 880 F.2d 1188,
1197 (10th Cir. 1989)). If the complaint does not contain these bare

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essentials, dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657, 663
(8th Cir. 1985).
DISCUSSION
“[T]o state a claim for relief under § 1983, a plaintiff must allege
sufficient facts to show ‘(1) that the defendant(s) acted under color of state
law, and (2) that the alleged wrongful conduct deprived the plaintiff of a
constitutionally protected federal right.’ ” Zutz v. Nelson, 601 F.3d 842, 848
(8th Cir. 2010) (quoting Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th
Cir. 2009)). In the instant case, Scheetz claims that defendants have engaged
in retaliatory discipline, thus violating the Eighth Amendment’s prohibition
on cruel and unusual punishment. Docket 1 at 4–7. Furthermore, Scheetz
alleges that defendants have violated his rights under the due process and
equal protection clauses of the Fourteenth Amendment. Id. at 7–8. To remedy
these alleged constitutional violations, Scheetz requests that the court issue a
declaratory judgment in his favor and order defendants to restore Scheetz’s
Class I visitation rights and expunge inaccurate accusations from Scheetz’s
institutional record. Id. at 9–10. Scheetz also requests compensatory and
punitive damages. Id. at 10.
I.

Scheetz Has Alleged Facts Sufficient to Support a Retaliatory
Discipline Claim under the Eighth Amendment.
To establish a prima facie case of retaliatory discipline, a plaintiff must

show that “(1) the prisoner exercised a constitutionally protected right;
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(2) prison officials disciplined the prisoner; and (3) exercising the right was
the motivation for the discipline.” Haynes v. Stephenson, 588 F.3d 1152, 1155
(8th Cir. 2009). Here, Scheetz alleges that his visitation privileges were
reduced from Class I to Class II visits1 “in retaliation for acts [he] committed
. . . at the Mike Durfee State Prison.” Docket 1 at 5. Although Scheetz does
not specify the nature of his conduct at Mike Durfee State Prison (MDSP), the
court will assume for pleading purposes that the conduct in question involved
the exercise of constitutionally protected rights. The court therefore finds that
Scheetz has alleged facts sufficient to support the claim that his visitation
rights were circumscribed in retaliation for Scheetz’s exercise of a
constitutionally protected right. Scheetz’s retaliatory discipline claim therefore
survives initial review under 28 U.S.C. § 1915(e)(2)(B).
II.

Scheetz Has Not Alleged Facts Sufficient to Support a Due Process
Claim under the Fourteenth Amendment.
The Eighth Circuit has consistently held that there is no constitutional

right to visitation in prison. Ware v. Morrison, 276 F.3d 385 (8th Cir. 2002).
“Consequently, in the Eighth Circuit, it appears that prison officials are free
to arbitrarily deny visitation, even indefinitely, with a prisoner’s mother, wife,

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According to Scheetz, Class I visits are contact visits, while Class II
visits take place in two separate rooms where visitors are separated from
inmates by a piece of glass. Docket 1 at 3. During Class II visits, inmates
communicate with visitors using a phone. Id. Class II visits are restricted to
one visitor at a time. Id.
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child, or close friend without being subject to federal court scrutiny.”
Steinbach v. Branson, No. 1:05-CV-101, 2007 WL 2985571, at *5 (D.N.D.
Oct. 9, 2007). Scheetz’s right to contact visits therefore does not constitute a
liberty interest protected by the Due Process Clause. Phillips v. Norris, 320
F.3d 844, 847 (8th Cir. 2003) (citation omitted) (“A prisoner does not have a
liberty interest in contact visitation.”); see also Ky. Dep’t of Corr. v. Thompson,
490 U.S. 454, 460–61 (1989) (“The denial of prison access to a particular
visitor ‘is well within the terms of confinement ordinarily contemplated by a
prison sentence,’ and therefore is not independently protected by the Due
Process Clause.”) (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983)).
Accordingly, Scheetz’s due process claim does not survive initial review under
28 U.S.C.
§ 1915(e)(2)(B).
III.

Scheetz Has Alleged Facts Sufficient to Support an Equal
Protection Claim under the Fourteenth Amendment.
The Equal Protection Clause of the Fourteenth Amendment prohibits

the government from unfairly discriminating between similarly situated
groups. To invoke the protections of the Equal Protection Clause, a plaintiff
must “allege he was a member of a protected class or that a fundamental
right was violated.” Phillips, 320 F.3d at 848. If neither of those elements can
be alleged, a plaintiff must allege “that similarly situated classes of inmates
are treated differently, and that this difference in treatment bears no rational
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relation to any legitimate penal interest.” Weiler v. Purkett, 137 F.3d 1047,
1051 (8th Cir. 1998) (citing Timm v. Gunter, 917 F.2d 1093, 1103 (8th Cir.
1990)); see also Romer v. Evans, 517 U.S. 620, 631 (1996) (explaining that “if
a law neither burdens a fundamental right nor targets a suspect class, we will
uphold the legislative classification so long as it bears a rational relation to
some legitimate end”).
Here, Scheetz has not alleged that he is a member of a protected class
or that defendants violated a fundamental right. Scheetz does, however, allege
that he is being treated differently than similarly situated inmates. Docket 1
at 7. More specifically, Scheetz represents that defendants have
circumscribed his visitation rights due to allegations that Scheetz has
engaged in the transferring of funds to other inmates—an offense for which
no other inmate has been deprived contact visitation. Docket 1 at 3, 7. Taking
these allegations as true and drawing all reasonable inferences therefrom in
Scheetz’s favor, the court finds that Scheetz has alleged facts sufficient to
support an equal protection claim for purposes of surviving initial review
under 28 U.S.C. § 1915(e)(2)(B).
IV.

The Court Denies Scheetz’s Motion for Preliminary Injunction.
“A preliminary injunction is an extraordinary remedy.” Roudachevski v.

All-American Care Centers, Inc., 648 F.3d 701, 705 (8th Cir. 2011) (citation
omitted); see also Hughbanks v. Dooley, 788 F. Supp. 2d 988, 992 (D.S.D.

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2011) (“[I]n the prison setting, a request for a preliminary injunction ‘must
always be viewed with great caution because judicial restraint is especially
called for in dealing with the complex and intractable problems of prison
administration.’ ”) (quoting Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995)).
“The burden of proving that a preliminary injunction should be issued rests
entirely with the movant.” Goff, 60 F.3d at 520. To determine whether the
issuance of a preliminary injunction is appropriate, the court considers the
following factors:
(1)
(2)
(3)
(4)

the threat of irreparable harm to the movant;
the state of balance between this harm and the injury that
granting the injunction will inflict on other parties litigant;
the probability that movant will succeed on the merits; and
the public interest.

Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). The
court asks “whether the balance of equities so favors the movant that justice
requires the court to intervene to preserve the status quo until the merits are
determined.” Id. at 113.
Although no single factor is determinative, “[f]ailure to show irreparable
harm is an independently sufficient ground upon which to deny a preliminary
injunction.” Watkins, Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003); see also
Dataphase, 640 F.2d at 114 n.9 (“[T]he absence of a finding of irreparable
injury is alone sufficient ground for vacating the preliminary injunction.”). To
demonstrate irreparable harm, plaintiff must show that the harm is “certain,

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great and of such imminence that there is a clear and present need for
equitable relief.” Packard Elevator v. Interstate Commerce Comm’n, 782 F.2d
112, 115 (8th Cir. 1986). Notably, “plaintiff must make a showing of actual,
substantial harm resulting from the alleged infringement.” Travelers Express
Co. v. Transaction Tracking Tech., Inc., 305 F. Supp. 2d 1090, 1095 (D. Minn.
2003) (citation omitted).
In the instant case, Scheetz has alleged that he is threatened by
irreparable harm, that the balance of hardships falls in his favor, that he is
likely to succeed on the merits, and that the relief he is seeking will serve the
public interest. Docket 8 at 1. Scheetz, however, has not provided facts to
support these bare assertions. Most significantly, he has failed to show “actual,
substantial harm resulting from the alleged infringement.” Travelers Express,
305 F. Supp. 2d at 1095. Accordingly, the court finds that Scheetz has not met
his burden of proving that a preliminary injunction should be issued. Scheetz’s
motion for preliminary injunction is therefore denied.
V.

The Court Denies Scheetz’s Motion to Appoint Counsel.
“A pro se litigant has no statutory or constitutional right to have

counsel appointed in a civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th
Cir. 1998). In determining whether to appoint counsel to a pro se litigant’s
civil case, the district court considers the complexity of the case, the ability of
the indigent litigant to investigate the facts, the existence of conflicting

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testimony, and the indigent's ability to present his claim. Id. In this case, the
facts of Scheetz’s remaining claims are not complex. Scheetz appears able to
adequately present his § 1983 claims at this time, and his motion to appoint
counsel (Docket 11) is therefore denied. Accordingly, it is
ORDERED that Scheetz’s complaint is dismissed in part pursuant to 28
U.S.C. § 1915. Scheetz’s retaliatory discipline and equal protection claims
have been sufficiently pleaded to survive initial review under § 1915, but his
due process claim is dismissed without prejudice.
IT IS FURTHER ORDERED that the clerk of court will cause service of
the complaint, summons, and this order upon defendants. All costs of service
will be advanced by the United States.
IT IS FURTHER ORDERED that defendants will serve and file an
answer or responsive pleading to the complaint on or before 21 days following
the date of service.
IT IS FURTHER ORDERED that Scheetz will serve upon defendants, or,
if appearance has been entered by counsel, upon their counsel, a copy of
every further pleading or other document submitted for consideration by the
court. He will include with the original paper to be filed with the clerk of court
a certificate stating the date and that a true and correct copy of any
document was mailed to defendants or their counsel.

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IT IS FURTHER ORDERED that Scheetz’s motion for preliminary
injunction (Docket 8) is denied.
IT IS FURTHER ORDERED that Scheetz’s motion to appoint counsel
(Docket 11) is denied.
Dated March 4, 2014.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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