Dale et al v. Kaemingk et al

Filing 122

ORDER adopting 98 Report and Recommendation; adopting 108 Report and Recommendation; Dismissing in Part; and Directing Service. Signed by U.S. District Judge Roberto A. Lange on 11/23/16. (SLW)

filed
2 3 2016
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

JAMES IRVING DALE, BRIAN MICHAEL
HOLZER,
MICHAEL
EUGENE
KOCH,
DEMETRIUS PETRO COLAITES, TREVOR
JOHN ERICKSON, GUY ALLEN BLESI,
KEVIN CHRISTOPHER CRANK, JAMES
EDWARD
HAYES, EDWARD
EUGENE
DARITY,
JOSIA
JEREMIAH
FUERST,
ROBERT EUGENE BLACKWELL, JEFFERY
JACOB-DANIEL KLINGHAGEN, DENNIS
LOUIS STANISHII,
UNKNOWN MIKE
DURFEE STATE PRISON INMATES,
Plaintiffs,

DENNIS KAEMINGK, SOUTH DAKOTA
SECRETARY OF CORRECTIONS; IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
ROBERT DOOLEY, WARDEN AT MDSP AND
THE DIRECTOR OF PRISON OPERATIONS

FOR THE SOUTH DAKOTA DOC; IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
JOSHUA KLIMEK, UNIT MANAGER AT

MDSP; IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY;
TAMMY
DEJONG,
UNIT
COORDINATOR
AT
MDSP; IN
HER
INDIVIDUAL AND OFFICIAL CAPACITY;
SUSAN JACOBS, ASSOCIATE WARDEN AT

MDSP; IN HER INDIVIDUAL AND OFFICIAL
CAPACITY;

REBECCA

ASSOCIATE
WARDEN
ADMINISTRATIVE

SCHIEFFER,
AND
THE
REMEDY

COORDINATOR
AT
MDSP; IN
HER
INDIVIDUAL AND OFFICIAL CAPACITY;
JENNIFER STANWICK, DEPUTY WARDEN

AT MDSP; IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; MICHAEL DOYLE,
CORRECTIONAL OFFICER, WITH THE RANK
MAJOR, AT MDSP; IN HIS INDIVIDUAL AND

4:I5-CV-04I03-RAL

ORDER ADOPTING REPORTS AND

RECOMMENDATIONS,DISMISSING IN
PART, AND DIRECTING SERVICE

OFFICIAL CAPACITY; JEREMY LARSON,
CORRECTIONAL OFFICER, WITH THE RANK
SERGEANT, AND THE DISCIPLINARY
HEARING OFFICER AT MDSP; IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
COREY TYLER, CORRECTIONAL OFFICER,
WITH THE RANK SERGEANT, AT MDSP; IN
HIS INDIVIDUAL AND OFFICIAL CAPACITY;
MICHAEL
MEYER,
CORRECTIONAL
OFFICER AT MDSP; IN HIS INDIVIDUAL
AND
OFFICIAL
CAPACITY;
KELLY
TJEERDSMA, CORRECTIONAL OFFICER,
WITH THE RANK CORPORAL, AT MDSP; IN
THEIR

INDIVIDUAL

AND

OFFICIAL

CAPACITY; LORI DROTZMAN, GENERAL
EDUCATION DIPLOMA TEACHER, WHO
ALSO IS IN CHARGE OF THE LAW LIBRARY

AT MDSP; IN HER INDIVIDUAL AND
OFFICIAL
CAPACITY; MICHAEL
JOE
HANVEY, PHYSICIANS ASSISTANT AND
HEALTH CARE PROVIDER AT MDSP; IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
ANDRA GATES, NURSING SUPERVISOR
AND HEALTH CARE PROVIDER AT MDSP;
IN

HER

INDIVIDUAL

AND

OFFICIAL

CAPACITY; KELLY SWANSON, HEALTH
SERVICES SUPERVISOR AT MDSP; IN THEIR
INDIVIDUAL AND OFFICIAL CAPACITY;
STEPHANIE HAMILTON, NURSE AT MDSP;
IN

HER

INDIVIDUAL

AND

OFFICIAL

CAPACITY; MARY CARPENTER,EMPLOYEE
OF THE SOUTH DAKOTA DEPARTMENT OF
HEALTH AND ASSISTS WITH INMATE
HEALTH CARE DECISIONS FOR INMATES

INCARCERATED
AT
MDSP; IN
HER
INDIVIDUAL AND OFFICIAL CAPACITY;
BARRY SCHROETER, SUPERVISOR FOR
CBM CORRECTIONAL FOOD SERVICES AT

MDSP; IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY;
JENNIFER
BENBOON,
DIETITIAN

EMPLOYED

BY

CBM

CORRECTIONAL FOOD SERVICES; IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
CBM CORRECTIONAL FOOD SERVICES,
PRIVATE
FOR
PROFIT
COMPANY
CONTRACTED BY THE SOUTH DAKOTA
DOC TO PROVIDE MEALS TO INMATES

INCARCERATED

AT

MDSP;

DELMAR

SONNY WALTERS, ATTORNEY AT LAW
CONTRACTED BY THE SOUTH DAKOTA
DOC TO PROVIDE LEGAL SERVICES TO

INMATES INCARCERATED AT MDSP; IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
UNKNOWN

DEPARTMENT

CORRECTIONS

OF

EMPLOYEES,

CORRECTIONAL OFFICERS EMPLOYED BY
THE SOUTH DAKOTA DOC WHO WORK AT

MDSP;

UNKNOWN

DEPARTMENT

OF

CORRECTIONS HEALTH SERVICES STAFF,
HEALTH SERVICES DEPARTMENT STAFF
EMPLOYED BY THE SOUTH DAKOTA DOC
TO PROVIDE HEALTH CARE FOR INMATES

INCARCERATED
UNKNOWN

CBM

AT

MDSP;

AND

CORRECTIONAL FOOD

SERVICES EMPLOYEES, EMPLOYEES OF
CBM CORRECTIONAL FOOD SERVICES AT

MDSP;
Defendants.

Plaintiffs brought this lawsuit challenging certain conditions of confinement at the Mike
Durfee State Prison ("MDSP") under 42 U.S.C. § 1983. Pursuant to a standing order, the case is

referred to Magistrate Judge Veronica L. Duffy.

Judge Duffy has issued reports and

recommendations in this case, two of which this Court has not yet ruled upon: 1) Report and

Recommendation on Screening, Doc. 98; and 2) Report and Recommendation recommending
dismissal ofthe claims of lead Plaintiff James Irving Dale ("Dale"), Doc. 108.

Review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636
and Rule 72 of the Federal Rules of Civil Procedure. Under 28 U.S.C. § 636(b)(1), a district court

reviews de novo any objections that are timely made and specific. See Fed. R. Civ. P. 72(b)(3)("The

district judge must determine de novo any part of the magistrate judge's disposition that has been
properly objected to.").

There were no objections to the Report and Recommendation on Screening, Doc. 98. This
Court has reviewed the Report and Recommendation on Screening and finds it appropriate to adopt
in full.

Dale objected to the Report and Recommendation recommending dismissal of his claims.
Docs. 108, 109. Dale acknowledged that he no longer was at MDSP and has been told that he will

not be returning to MDSP, but alleged that his transfer was retaliatory in nature and that he might

someday return to MDSP.

Doc. 109.

Since filing these objections to the Report and

Recommendation, Dale has been released from prison.

See South Dakota Department of

Corrections, https://doc.sd.gov/adult/lookup/details/?id=1526 (last visited November 22, 2016)
(stating that Dale was discharged from South Dakota custody on November 1, 2016).
Dale sought no damages for past allegedly unconstitutional conditions, but only prospective

declaratory and injunctive relief which other plaintiffs in this case may pursue. Under these
circumstances. Dale's release from prison renders his claims moot. S^ Smith v. Hundlev. 190 F.3d

852, 855 (8th Cir. 1999)(concluding that plaintiffs transfer to different prison facility rendered his
claims for declaratory and injunctive relief moot); Hickman v. Missouri. 144 F.3d 1141, 1142-43
(8th Cir. 1998)(holding that prisoners' claims for declaratory relief under the ADA were moot once

the prisoners were released on parole); Martin v. Sargent. 780 F.2d 1334, 1337 (8th Cir. 1985)("[A]
prisoner's claim for injunctive relief to improve prison conditions is moot if he or she is no longer
subject to those conditions.").
Therefore, it is hereby

ORDERED that the Report and Recommendation on Screening, Doc. 98, is adopted. It is
further
ORDERED

(1) That the following portions of the complaint and/or supporting documents are stricken
because the corresponding formerly named plaintiffs have chosen to disassociate
themselves from the lawsuit:
Brian Holzer:

Doc. 1,112; Doc. 7(Affidavit of Brian Holzer)

Demetrius Colaites:

Doc. 1,
4, 141, 142 and 143; Doc. 8 (Affidavit of
Demetrius Petro Colaites)

Trevor Erickson:

Doc. 1, TIf 5, 95 and 239; Doc. 10 (Affidavit of Trevor John
Erickson)

Kevin Crank;

Doc. 1,
7, 224, 225, 226, 227 and 228; Doc. 12
(Declaration of Kevin Christopher Crank)

Edward Darity:

Doc. 1,

9, 192, 193, 194, 195, 196, 197 and 198; Doc. 14

(Affidavit ofEdward Eugene Darity)
Robert Blackwell:

Doc. 1, 11, 255, 257, 258, and 259; Doc. 16 (Affidavit of
Robert Eugene Blackwell)

Dennis Stanish:

Doc. 1, Vi 13, 191, 260, 261, 262, and 263; Doc. 18 (Affidavit
of Dennis Louis Stanish, II)

(2) That the cause of action titled "Informal Resolution Request & Administrative Remedy
Process," Doc. 1

104-17, is hereby dismissed prior to service for failure to state a

claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(l).

(3) That the cause of action titled "Inmate Due Process and Disciplinary Hearing," Doc. 1
248-68, is hereby dismissed prior to service for failure to state a claim upon which relief
maybe granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).

(4) That the causes of action titled "Mail and Legal Mail," "Mike Durfee State Prison Unit
Staff," "Law Library," "Inmate Legal Assistance," and "Other Legal Issues" (First
Amendment Access to Courts), Doc. 1
52-103, would have survived screening as to
Plaintiff Dale but are hereby dismissed prior to service as Dale's claims are being
dismissed and the other remaining Plaintiffs cannot state a claim upon which relief may
be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l)for these claims.

(5) That the cause of action titled "Inmate Health Care and MSDP Health Services"(Eighth
Amendment Health Care Claim), Doc. 1
181-208,, survives screening as to Plaintiffs
Koch, Klinghagen, and Fuerst, but is hereby dismissed as to the other remaining Plaintiffs

because they fail to state a claim upon which relief may be granted pursuant to U.S.C.
§§ 1915(e)(2)(B)(ii)and 1915A(b)(l).

(6) That the cause of action titled "Inmates with Disabilities and Americans with Disabilities
Act Issues," Doc. 1
269-89, survives screening as to Plaintiff Fuerst but is hereby
dismissed as to the other remaining Plaintiffs because they fail to state a claim upon
which relief may be granted pursuant to U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l),
although ruling on Plaintiff Klinghagen's motion to amend. Doc. 106, to state a claim on
this count is referred to Judge Duffy.

(7) That the United States Marshal serve a copy of the Complaint, Doc. 1, Summons, a copy
of the Report and Recommendation on Screening, Doc. 98, and a copy of this Order
Adopting Reports and Recommendations upon Defendants as directed by Plaintiffs. All
costs of service shall be advanced by the United States.

(8) That Plaintiffs shall serve upon Defendants, or if appearance has been entered by counsel,
upon their attorney, a copy of every further pleading or other document submitted for
consideration by the Court. Plaintiffs shall include with the original paper to be filed
with the Court a certificate stating the date a true and correct copy of any document was
mailed to Defendants or their counsel. Any paper received by a district judge or
magistrate judge which has not been filed with the Clerk or which fails to include a
eertificate of service may be disregarded by the Court.
It is further

ORDERED that the Report and Recommendation, Doc. 108, is adopted and that the claims of
Plaintiff James Irving Dale are dismissed as moot but without prejudice to refiling if by some chance
he returns to MDSP.

DATED this cd day of November,2016.
BY THE COURT:

ROBERTO A. LANGF

UNITED STATES DISTRICT JUDGE