Dale v. Dooley et al
ORDER denying 82 Motion to Compel; granting in part and denying in part 90 Motion for Summary Judgment. Signed by U.S. District Judge Lawrence L. Piersol on 2/17/17. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
JAMES I. DALE,
a/k/a James Irving Dale,
ORDER DENYING MOTION TO
COMPEL AND GRANTING IN PART
UNKNOWN DEPARTMENT OF
AND DENYING IN PART MOTION
FOR SUMMARY JUDGMENT
CBM CORRECTIONAL FOOD
UNKNOWN CBM EMPLOYEES,
Plaintiff, James I. Dale, filed this lawsuit pursuant to 42 U.S.C. § 1983
claiming that defendants violated his constitutional rights. At that time. Dale
was an inmate at the South Dakota State Penitentiary in Sioux Falls. Dale now
moves this Court to compel discovery. Docket 82, and defendants move for
summary judgment. Docket 90. For the reasons stated below. Dale's motion is
denied and defendants' motion is granted in part and denied in part.
In his amended complaint. Dale raised claims under the First, Eighth,
and Fourteenth Amendments, the Religious Land Use Institutionalized Persons
1 The full factual background can be found in Magistrate Judge Duffy's Report and
Recommendation. Docket 68.
Act (RLUIPA), the Americans with Disabilities Act, and the Rehabilitation Act.
Docket 21. On December 12, 2014, defendants filed their first motion for
summary judgment. Docket 50. United States Magistrate Judge Veronica L.
Duffy recommended that the court grant defendants summary judgment as to
the claims under the Eighth Amendment, the Americans with Disabilities Act,
and the Rehabilitation Act. Docket 58.
Magistrate Judge Duffy found that certain defendants were not entitled
to summary judgment based upon qualified immunity as to whether they had
denied Dale a kosher diet because Dale should be allowed to do limited
discovery. Id. at 57. Magistrate Judge Duffy recommended limiting this
discovery to determining the identities of the "'unknown CBM employees' and
'unknown [Department of Corrections (DOC)] staff which he claims are the very
people who violated his constitutional rights),]" and
"whether the entity responsible for providing his kosher diet (CBM
Correctional Food Services) [was] put on notice of the claims
contained in Mr. Dale's fellow inmates' affidavits (i.e. that there is a
continuing, widespread persistent pattern of unconstitutional
misconduct by the governmental entity's employees) that would
rise to the-level of deliberate indifference to or tacit authorization of
Id. Therefore, Magistrate Judge Duffy recommended that Unknown DOC staff,
CBM Food Services, and unknown CBM employees be denied summary
judgement as to Dale's First Amendment claim and Warden Dooley, CBM
Correctional Food Services, Unknown DOC staff, and Unknown CBM employees be
denied summary judgement as to Dale's RLUIPA claim, /d. at 91.
This Court adopted the report and recommendation in part, denying
summary judgment to these defendants as to these claims. Docket 72. The Court
also granted defendants summary judgment as to Dale's Fourteenth Amendment
claim. Id. Dale was allowed to proceed to the discovery stage on his remaining
The discovery deadline was set as April 29, 2016. Docket 76. On April 20,
2016, Dale filed a motion to compel defendants to produce a set of documents.
Docket 82. Defendants responded, arguing that they had responded to all of Dale's
proper requests and that the remaining requests were not relevant to his
remaining cliaims. Docket 86.
On May 27, 2016, defendants filed their second motion for summary
judgment. Docket 90. Defendants argue that the limited discovery has not
produced the identities of defendants because Dale has not sought this
information. Docket 91. Dale responds, arguing that he has met his burden and
that he sought to amend his complaint in order to add defendants. Docket 99.
STANDARD OF REVIEW
Summary judgment is appropriate if the movant "shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law." Fed. R. Civ. P. 56(a). The moving party can meet this
burden by presenting evidence that there is no dispute of material fact or by
showing that the nonmoving party has not presented evidence to support an
element of its case on which it bears the ultimate burden of proof. Celotex Corp.
V. Catrett, 477 U.S. 317, 322-23 (1986). To avoid summary judgment,"[t]he
nonmoving party may not rest on mere allegations or denials, but must
demonstrate on the record the existence of specific facts which create a
genuine issue for trial." Mosley v. City of Northwoods, 415 F.3d 908, 910
(8th Cir. 2005)(citation omitted and quotation marks).
Prisoners who proceed pro se are entitled to the'benefit of liberal
construction at the pleading stage. Quam v. Minnehaha Cty. Jail, 821 F.2d 522,
522 (8th Cir. 1987). Nonetheless, the summary judgment standard set forth in
Rule 56 of the Federal Rules of Civil Procedure remains applicable to prisoners
proceeding pro se. Id. The district court is not required to "plumb the record in
order to find a genuine issue of material fact." Barge v. Anheuser-Busch, Inc.,
87 F.3d 256, 260 (8th Cir. 1996). Courts must remain sensitive, however, "to
the special problems faced by prisoners attempting to proceed pro se in
vindicating their constitutional rights, and [the Eighth Circuit does] not
approve summary dismissal of such pro se claims without regard for these
special problems." Nickens v. White, 622 F.2d 967, 971 (8th Cir. 1980)."When
dealing with summary judgment procedures the technical rigor is inappropriate
where . . . uninformed prisoners are involved." Ross v. Franzen, 777 F.2d 1216,
1219 (7th Cir. 1985).
Motion to Compel
Dale moves to compel production of a set of purchasing orders and
documents concerning the alteration of his kosher diet status. Docket 82.
Defendants respond that most of these requests are irrelevant and that t^ey
have appropriately responded to the relevant requests.
Dale first argues that defendants waived their right to object because the
response to the discovery requests was beyond the 30-day time limit set out in
Federal Rule of Civil Procedure 34(b)(2)(A). While the "party to whom the
request is directed must respond in writing within 30 days after being served[,]"
a "longer period of time may be stipulated to under Rule 29[.]" Fed. R. Civ. P.
34(b)(2)(A). Rule 29 states, in relevant part, that "procedures governing or
limiting discovery [may] be modified[.]" Fed. R. Civ. P. 29(b). Thus, parties are
allowed to agree to extend the time period for responding to requests for
production of documents as long as such agreements do not interfere with the
time set for completing discovery.
Here, the parties agreed to an extension of time for defendants to
respond to Dale's discovery requests and the agreement did not interfere with
the time set for completing discovery. According to Dale's declaration, he sent a
request for production of the purchasing order on December 29, 2015. Docket
83 T[ 1. Within thirty days, in "January of 2016," defendants asked for an
extension until February 12, 2016 to provide documents, and Dale agreed. Id.
2-3. On February 12, 2016, defendants sent some of the requested
documents and objected to the remainder of the requests. Id. 5.
Defendants objected to Dale's discovery requests in a timely manner.
Also, the agreement to extend the time for responding to the discovery requests
did not interfere with the time set for completing discovery because the
discovery deadline was April 29, 2016. Defendants, therefore, did not waive
their right to object.
Dale moves to compel MDSP's purchasing orders for peanut butter,
margarine, and cereal. These purehasing orders, however, are irrelevant to
Dale's remaining claims. Dale's elaim that the kosher diet is nutritionally
inadequate was dismissed. In his amended eomplaint. Dale alleged that the
peanut butter was "often stale, dried up and not spreadable onto bread," and
moldy on several oeeasions, and that it gave him diarrhea. Docket 21 tH 28,
66. He did not allege that the peanut butter was not kosher, and this is the
only claim that survives.
Dale argues this is relevant because he "should be able to diseover if any
of the other food that CBM Correctional Food Services serves to Dale is kosher
or not." Docket 96 at 2. Requests are only relevant if they are within the seope
of the case. Here, Dale did not allege that the peanut butter was not kosher in
his amended complaint. He cannot merely go through the foods defendants
serve to see if they are kosher. Further, the amended eomplaint only mentions
cereal onee, raising no allegations about whether the cereal was kosher, and
does not even mention margarine. The Court finds these doeuments irrelevant
to Dale's remaining claims and denies his motion to compel.
Requests to Change Religious Diet Requests
Dale moves to eompel documents concerning changes in his religious
diet status. Defendants argue that they asked Rebecca Linneweber, the
Cultural Affairs Coordinator at MDSP,for documents responsive to Dale's
request. Doeket 89
1-5. She avers that she searched both the paper
documents and the DOC's electronic information management system (COMS).
Id. TITI 6, 8-10. The searched produeed a kite filed by Dale and a screen print of
Dale's information on COMS. Id.
7, 10. Linneweber found no other
responsive documents. Id. H 7, 11. Therefore, defendants have complied with
Dale's document production request. Dale's motion to compel is denied.
Motion for Summary Judgment
First Amendment Claim
Defendants Unknown DOC staff, CBM Food Services, and unknown CBM
employees move for summary judgment on Dale's First Amendment claim. The
Court allowed Dale to proeeed with his First Amendment claim to the discovery
phase in order to discover the identities of the people who allegedly violated his
constitutional rights by serving allegedly non-kosher food and to diseover the
extent to whieh CBM had been put on notice of these alleged violations.
In Dale's Request for Interrogatories to Dooley, he asked,"Who is
responsible for insuring that the religious/kosher diet trays that are served to
inmates at MDSP are prepared in a kosher manner? (Please provide persons
name)." Docket 93-7 10. Defendants responded:
As stated above, CBM staff and employees on site at MDSP are
those persons responsible for the preparation of the kosher meal.
John Trierweiller is the CBM District Manager who is responsible
for oversight of CBM operations in all DOC faeilities. Currently the
Food Serviee Director position at MDSP is vacant. Barry Schroeter
was the former Food Service Director at MDSP. As the eontract
vendor with the DOC for the preparation and service of the kosher
meal, CBM is the entity who is responsible for ensuring that the
kosher meals provided to inmates at MDSP are prepared in a
kosher manner. As Warden of MDSP I also share responsibility to
ensure that kosher meals provided to inmates are prepared in a
Docket 100-1 at 14.
Defendants argue that other than Trierweiller and Schroeter,"Dale has
not conducted any discovery to identify any other unknown CBM employee that
may have directly engaged in the alleged pattern of conduct that rendered the
kosher meal to non-kosher." Docket 106 at 3. The Court disagrees. In
defendants' own words, Trierweiller and Schroeter are responsible for ensuring
that kosher meals are indeed kosher. Dooley admitted that he also has
responsibility for kosher meals but that responsibility is as "captain of the
ship" and no knowledge nor negligence on the part of Dooley has been shown.
If there was some other party who constituted the unknown CBM and DOC
employees, they should have been named in the response to Dale's
interrogatory. Further, Schroeter's affidavit states that he oversaw the
preparation of kosher meals when he worked at MDSP, Docket 52-2, and
TrierweiUer's affidavit states that he did the same job when he took over in
2015. Docket 94.
Defendants further argue that Dale has not shown that CBM was put On
notice of the alleged violations. Dale provides the affidavits and declaration of a
number of inmates who worked in the kitchen at MDSP who testify that they
informed CBM staff that the kosher food was not in fact kosher. Docket 64-2 Tf
8; Docket 64-5 ^ 7; Docket 64-13 Tf 6. Dale also provides affidavits and
declaration in which inmates testify that CBM staff ordered them to serve or
prepare the food in a non-kosher way. Docket 64-3 ^ 6; Docket 64-4
Docket 64-13 *| 5; Docket 100-2 Tf 3.
To rebut this, defendants offer the affidavit of John Trierweiler, the
supervisor of CBM foodservice operations at MDSP. Docket 94. Trierweiler took
over this position from Sehroeter, who worked at CBM in this capacity until
approximately October 2015. Id.
4-5. Trierweiler testifies that he has never
received complaints concerning the kosher meals at MDSP or witnessed any of
the behavior of which Dale complains, /d.
12, 14-15. Trierweiler was
Schroeter's supervisor before October 2015, and Trierweiler testifies that
Sehroeter "would have reported to me any complaints received regarding the
kosher meal preparation and service at MDSP[,]" but that he did not "recall any
complaints . . . ." Id. ^13Trierweiler's statement that Sehroeter "would have reported" any
complaints is simply not enough to negate the evidence provided by Dale.
Trierweiler was not working in MDSP day to day during the period of the
amended complaint, which was filed in June 5, 2014, over a year before
Trierweiler began working in MDSP. The affidavits and declarations provided by
Dale are the statements of inmates working in MDSP kitchen during the time
period of the amended complaint.
Dale raises an issue of material fact as to whether defendants violated
his constitutional rights. He also raises an issue of material fact as to whether
CBM had notice of the violations that Dale alleges. Therefore, the Court denies
defendants' motion as to Dale's First Amendment claim.
Defendants are granted summary judgment on Dale's RLUIPA claim. In
the Report and Recommendation, Magistrate Judge Duffy explained that the
"only 'appropriate' relief available under RLUIPA . . . is injunctive relief and
that "no monetary relief is available under RLUIPA[.]" Docket 68 at 66. Under
Rule 201 of the Federal Rules of Evidence, a court may take judicial notice of
"adjudicative facts." Although not discussed by defendants, the Court takes
judicial notice that Dale was released from South Dakota DOC custody. Docket
111. See Fed. R. Evid 201; Stutzka v. McCarville, 420 F.3d 757, 760 n.2
(8th Cir. 2005)(courts may take judicial notice of public records).
A prisoner who "is no longer subject to the policies that he challenges,"
does not have a "live case or controversy[,]" and his claims for injunctive relief
are moot. Zajrael v. Harmon, 677 F.3d 353, 355 (8th Cir. 2012). Dale's claim
for injunctive relief is moot because he is no longer subject to the allegedly
unconstitutional kosher diet. The exception to the mootness doctrine for claims
capable of repetition yet evading review is not applicable, because Dale did not
make a showing that he is likely to be transferred back to South Dakota. See
Id. Therefore, defendants' motion for summary judgment is granted as to Dale's
Dale's only remaining claim is that unknown DOC staff, CBM Food
Services, and unknown CBM employees violated his First Amendment rights by
serving him non-kosher food. As discussed above, discovery has revealed, to
the extent seemingly possible, the identities of those responsible for ensuring
that the kosher meals were properly prepared and served. Therefore, summary
judgment is granted to. defendants unknown CBM employees because they are
no longer unknown. If Dale wishes to amend his complaint in order to add
Trierweiller and Schroeter, he may do so. He may not, however, use this
amended complaint to add claims.
Summary judgment is also granted to unknown DOC staff. Defendants
have provided evidence that DOC staff members are not involved in preparing
or serving the kosher meals at MDSP. Docket 94 T| 10, Docket 95 ^9.
Therefore, Dale has not raised an issue of material fact as to whether DOC staff
violated his constitutional rights.
Dale sets forth facts sufficient to demonstrate a genuine issue of material
fact and overcome defendants' motion for summary judgment as to his First
Amendment claim. Because he has been released from South Dakota DOC
custody, defendants are granted summary judgment as to his RLUIPA claims.
The unknown defendants in Dale's amended complaint are now known.
Therefore, summary judgment is granted to defendants unknown DOC staff
and unknown CBM employees. Finally, Dale may amend his complaint in order
to add discovered defendants.
Accordingly, it is ORDERED
Dale's motion to compel (Docket 82) is denied.
Defendants' motion for summary judgment(Docket 90) is granted
as to all claims against Robert Dooley, Unknown Department of
Corrections Staff, and Unknown CBM Employees.
Defendants' motion for summary judgment(Docket 90) is granted
as to Dale's RLUlPA claim against CBM Correctional Food Services.
Defendants' motion for summary judgment(Docket 90) is denied
as to Dale's First Amendment claim against CBM Correctional
If Dale wishes to add defendants, he must do so through a
proposed amended complaint no later than March 9, 2017.
Dated this 17th day of February, 2017.
BY THE COURT:
.,awrence L. Piersol
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?