Piekkola v. Jackley et al

Filing 14

ORDER denying as moot 11 MOTION for Reconsideration. Motions terminated: 12 MOTION to Amend/Correct 1 Complaint - Prisoner Civil Rights (42:1983) filed by Max Piekkola. Tammy Doyle added. Hunter Summers (Special Security Lieutenant at the SDSP, Sioux Falls, South Dakota, in his individual and official capacities) terminated. Signed by U.S. District Judge Karen E. Schreier on 3/8/2016. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MAX PEIKKOLA,

4:15-CV-04148-KES
Plaintiff,

vs.
MARTIN JACKLEY, Attorney General of
South Dakota, individual and official
capacities;
BRYAN GORTMAKER, Special Assistant
Attorney General, individual and official
capacities;
GRETCHEN SLATE, Special Assistant
Attorney General, individual and official
capacities;
DENNIS KAEMINGK, Secretary of the
South Dakota Department of
Corrections, individual and official
capacities;
J.C. SMITH, Regional Supervisor, South
Dakota Parole Services, individual and
official capacities;
SAM BADURE, Case Manager for the
DOC at the South Dakota State
Penitentiary, individual and official
capacities;
ROBERT DOOLEY, Director of Prison
Operations for the DOC, individual and
official capacities;
HUNTER SUMMERS, Special Security
Lieutenant, South Dakota State
Penitentiary, individual and official
capacities;
JOSH KLIMEK, Unit Manager, Mike
Durfee State Prison, individual and
official capacities;
TAMMY DEJONG, Unit Coordinator,
Mike Durfee State Prison, individual

ORDER DENYING MOTION FOR
RECONSIDERATION AND
DISMISSING AMENDED COMPLAINT
IN PART AND DIRECTING SERVICE
OF AMENDED COMPLAINT

and official capacities;
TRAVIS TJEERDSMA, Case Manager,
Mike Durfee State Prison, individual
and official capacities;
KELLY TJEERDSMA, Corporal, Mike
Durfee State Prison, individual and
official capacities;
DUSTIN TJEERDSMA, Correctional
Officer, Mike Durfee State Prison,
individual and official capacities;
LEE KAUFENBERG, Special Security
Captain, Mike Durfee State Prison,
individual and official capacities;
LYLE STOCK, Sergeant, Mike Durfee
State Prison, individual and official
capacities;
TAMMY DOYLE, Unit Manager at the
Mike Durfee State Prison; and
STEVE REYNOLDS, previous supervisor
of the automotive program, Mike Durfee
State Prison, individual and official
capacities,
Defendants.
INTRODUCTION
Plaintiff, Max Peikkola, filed this lawsuit pursuant to 42 U.S.C. § 1983,
naming Martin Jackley, Gretchen Slate, Dennis Kaemingk, J.C. Smith, Sam
Badure, Robert Dooley, Hunter Summers, Josh Klimek, Tammy DeJong, Travis
Tjeerdsma, Kelly Tjeerdsma, Dustin Tjeerdsma, Lee Kaufenberg, Lyle Stock,
Tammy Doyle, and Steve Reynolds as defendants. Peikkola is an inmate at
Mike Durfee State Prison (MDSP) in Springfield, South Dakota. The court
“screened” Piekkola’s original complaint pursuant to 28 U.S.C. ' 1915A. Docket
9. Piekkola now moves the court to reconsider this order, to grant him leave to
amend his complaint, and grant him a preliminary injunction. Docket 11;
2

Docket12; Docket 13. For the reasons stated below, the court grants Piekkola’s
motion to amend, screens his amended complaint, and dismisses it in part for
failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.
'' 1915(e)(2)(B)(ii) & 1915A(b)(1). The court also denies Piekkola’s motion to
reconsider.
FACTUAL BACKGROUND
According to the amended complaint, in 2011, Peikkola was an inmate at
MDSP. Docket 12-1 at ¶ 23. While incarcerated, Peikkola went through
chemical dependency treatment with counselor Karri Reynolds. Id. In October
2011, Peikkola was paroled to the Community Transition Program and began a
relationship with Karri. Id. at ¶¶ 24, 26. Karri quit working for the South
Dakota Department of Social Services (DSS) before this relationship began. Id.
at ¶ 27. Karri was married, however, to Steve Reynolds, an MDSP employee
and a defendant in this action, but they were in the process of obtaining a
divorce. Id. at ¶ 36.
The remaining background arises from three different arrests and their
aftermath, one each in 2011, 2012, and 2015. In October or November 2011,
Peikkola was arrested under the order of his parole agent, defendant Badure.
Id. at ¶ 28. Badure was investigating Karri at the time of the arrest for a crime
she allegedly committed while employed at DSS. Id. Peikkola was not under
investigation and alleges that there was no cause to believe he had committed a
crime and no reasonable suspicion that he had violated his parole. Id. The
Department of Corrections found no basis for charging Karri after she passed a
3

polygraph. Id. at ¶ 29. After ten days, defendants released Piekkola without
charging him with a crime or a parole violation. Id. at ¶¶ 29-30.
While Peikkola was incarcerated on the parole detainer, defendant
Summers seized his phone, searched the hard drive, and responded to texts as
if he was Peikkola. Id. at ¶ 31. Summers did not have a warrant for this search.
Id. During this time, 2011-12, defendants Kaufenberg, Travis Tjeerdsma, Kelly
Tjeerdsma, Dustin Tjeerdsma, and Reynolds sent harassing and threatening
messages to both Karri and Peikkola. Id. at ¶ 32.
In April 2012, Peikkola was arrested for driving under the influence, and
he was incarcerated in the South Dakota State Penitentiary (SDSP). Id. at ¶ 33.
After Peikkola’s arrest, Reynolds told Karri that he had offered to pay prisoners
to attack Peikkola. Id. at ¶ 34. Peikkola told Associate Warden Jennifer Wagner
about this threat. Id. at ¶ 35. Wagner placed an administrative override on
Peikkola that kept him from being transferred to MDSP. Id. Instead, Peikkola
was sent to a minimum custody facility in Sioux Falls, South Dakota. Id.
During this time, Reynolds and Karri were going through a divorce. Id. at
¶ 36. Peikkola spoke to Karri every day on the telephone. Id. These calls were
recorded, and Kaufenberg accessed them and allowed Reynolds access as well.
Id. Kaufenberg also allowed Reynolds access to Peikkola’s institutional file. Id.
On October 31, 2013, Peikkola was paroled. Id. at ¶ 37. Piekkola alleges
that the parole board was aware of his relationship with Karri and approved a
plan that included their cohabitation. Id. After Peikkola’s release, Reynolds
continued to send harassing and threatening messages to Peikkola and Karri.
4

Id. at ¶ 38. In 2014, while working at MDSP, Reynolds made numerous
negative remarks about Peikkola, including allegations about what Peikkola
had done to Karri, Reynolds, and their families. Id. at ¶ 39. Peikkola claims
Reynolds lied. Id. Reynolds also continued to offer rewards to inmates to attack
Peikkola. Id. at ¶ 40. Defendants Dooley, Kaufenberg, Travis Tjeerdsma, Kelly
Tjeerdsma, and Dustin Tjeerdsma knew about these threats. Id. In January
2015, Reynolds resigned from MDSP. Id. at ¶ 41.
In June 2015, Peikkola was arrested for “absconding from parole
supervision” and was returned to SDSP. Id. at ¶ 42. Peikkola met with an
admissions case manager, who was aware of Peikkola’s situation and thought
he should not be sent to MDSP. Id. at ¶ 43. The case manager applied for
another administrative override, but it was denied. Id. Worried for Piekkola’s
safety, Karri called Warden Darin Young and explained the threats and danger
Peikkola was in. Id. at ¶ 44. Warden Young said he was aware of the situation,
but assured Karri that Peikkola would be safe from retaliation because
Reynolds had resigned. Id.
On June 15, 2015, Piekkola was transfered to MDSP. Id. at ¶ 45. During
his orientation, a prison staff member used Piekkola as an example of how not
to do time at MDSP. Id. On July 8, 2015, Piekkola spoke to Dooley and
explained his concerns. Id. at ¶ 46. Dooley said he was aware of the situation
and told Piekkola to speak to defendant Klimek or use the administrative
grievance system to seek a remedy. Id. Piekkola attempted to utilize the
administrative grievance system. Id. at ¶ 47. He outlined his issues in an
5

informal request but was placed in administrative detention by DeJong and
Travis Tjeerdsma for making the request. Id. He was released after one week
without receiving a disciplinary report or a reason for his detention. Id. DeJong
and Tjeerdsma harassed Piekkola while he was in detention, both commenting
on his relationship with Karri. Id. at ¶ 48.
A few days after his release, Piekkola was issued a major rule infraction
for unauthorized contact with a former employee. Id. at ¶ 49. Piekkola alleges
that this must have referred to Karri and was issued by DeJong. Id. Piekkola
alleges that Karri was never a DOC employee because she worked for DSS. Id.
at ¶ 50. He also claims that the DOC does not have a rule “prohibiting contact
between inmates and former DOC employees and/or contract employees unless
the employee was fired for inappropriate contact with inmates or unless the
employee resigned to avoid being fired for inappropriate contact with inmates.”
Id. at ¶ 51. He claims that because Karri resigned, this rule is inapplicable. Id.
Piekkola and Karri were in contact with each other previously without objection
by DOC employees or the parole board. Id. at ¶ 52.
Klimek conducted a Unit Disclpinary Committee (UDC) hearing about the
phone calls between Piekkola and Karri. Id. at ¶ 53. Klimek offered Piekkola a
deal with less punishment, but Piekkola refused and requested to be heard by
a Disciplinary Hearing Officer (DHO). Id. During this hearing, defendant Stock
found Piekkola guilty without hearing evidence that Piekkola contacted Karri or
that he was not allowed to contact her. Id. at ¶ 56. Piekkola alleges that Stock
was not an impartial decision maker because Stock previously made sexual
6

advances to Karri. Id. at ¶¶ 54, 55. Piekkola was fined $50 and lost his phone
privileges for sixty days. Id. at ¶ 56. Immediately after this hearing, DeJong
deactivated Piekkola’s account. Id. at ¶ 57. He was warned that further contact
with Karri in any form would result in serious consequences. Id. at ¶ 58.
In August 2015, Piekkola was again placed in administrative detention.
Id. at ¶ 59. In his disciplinary report, DeJong said Piekkola used the phone,
even though that was impossible because his account had been deactivated. Id.
Klimek conducted a UDC hearing. Id. at ¶ 60. This time, Piekkola accepted a
deal because he had been punished so severely by an allegedly biased arbiter
in the previous DHO hearing. Id. at ¶ 60.
Piekkola was transferred to the Yankton Trusty Unit on December 4,
2015. The following day, he was transferred back to MDSP and placed in
administrative detention. Id. ¶¶ 62-63. On his return, Dejong charged Piekkola
with a major rule infraction that alleges that Piekkola had called Karri and lied
on his phone verification by putting a false name with Reynolds’ number. Id. at
¶ 64. Again, no evidence was offered. Id. Doyle conducted a UDC hearing. Id. at
¶ 65. Doyle offered a deal including loss of phone and care package privileges
and time in administrative segregation, which Piekkola accepted. Id. at ¶¶ 65,
66.
On September 21, 2015, Piekkola filed his original complaint that raised
seven claims and sought damages and equitable remedies. Docket 1. The court
screened Piekkola’s complaint and dismissed his illegal incarceration, due
process, and denial of access to the courts claims. The court also dismissed
7

defendants Dooley, Kaemingk, Jackley, Gortmaker, Slate, Smith, and Badure.
Docket 9. The court directed service of the remainder of the complaint on the
remaining defendants. Id. The clerks’ office sent Piekkola summonses in order
to serve defendants, but he did not fill them out as instructed. Docket 10.
Instead, he filed a motion to reconsider. Docket 11. Before the court responded
to that motion, he moved to amend his complaint, Docket 12, and for a
preliminary injunction. Docket 13.
LEGAL STANDARD
The court must assume as true all facts well pleaded in the complaint.
Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995).
Civil rights and pro se complaints must be liberally construed. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839
(8th Cir. 2004). Even with this construction, “a pro se complaint must contain
specific facts supporting its conclusions.” Martin v. Sargent, 780 F.2d 1334,
1337 (8th Cir. 1985); Ellis v. City of Minneapolis, 518 F. App’x 502, 504
(8th Cir. 2013).
A complaint “does not need detailed factual allegations . . . [but] requires
more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). If it does not contain these bare essentials, dismissal is appropriate.
Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). Bell Atlantic requires
that a complaint’s factual allegations must be “enough to raise a right to relief
above the speculative level on the assumption that all the allegations in the
8

complaint are true.” Id. at 1965; see also Abdullah v. Minnesota, 261 F. App’x
926, 927 (8th Cir. 2008) (citing Bell Atlantic noting complaint must contain
either direct or inferential allegations regarding all material elements necessary
to sustain recovery under some viable legal theory).
DISCUSSION
I.

Motion to Amend
As an initial matter, Piekkola moves to amend his complaint. Docket 12.

“A party may amend its pleading once as a matter of course within . . . 21 days
after serving it.” Fed. R. Civ. P. 15(a)(1)(A). Piekkola’s complaint has not been
served. Therefore, Piekkola is entitled to amend his complaint without leave of
the court. His amended complaint, however, must be screened under § 1915A.
II.

Screening Piekkola’s Amended Complaint
Piekkola claims he was illegally incarcerated, he was subjected to an

illegal search and seizure, his right to privacy was violated, his right to
association was violated, he was deprived of property without due process, and
he was defamed. Docket 12-1. Piekkola also claims defendants retaliated
against him for exercising these rights. Id.
Piekkola’s amended complaint does not seek a specific amount of
damages. Instead, it requests “an amount to be determined by a jury.” Id. at ¶
217. Piekkola also requests a declaration that his rights were violated and his
character was defamed. Id. at ¶¶ 213, 214. Finally, he requests injunctive relief
to stop defendants from interfering with the exercise of his constitutional rights
and from retaliating against him for exercising his rights. Id. at ¶¶ 215, 216.
9

A.

Supervisory Liability

Many of Piekkola’s claims present supervisory liability issues. He names
Jackley, Gortmaker, Smith, Kaemingk, Dooley, Klimek, and Doyle as
defendants in their supervisory capacity. Docket 12-1 at ¶¶ 75, 78, 82, 91, 93,
107, 109, 129, 131, 133, 141, 151, 153, 155, 165, 168, 172, 174, 178, 182,
196, 201, 203. Piekkola alleges these defendants are liable based on essentially
the same language for each defendant in each claim. He claims each defendant
is “personally liable under failure to train, policies/practices, and deliberate
indifference theories of liability[,]” and that they “failed to train [their
subordinates] that they [cannot violate his constitutional rights].” In many of
the paragraphs, Piekkola also claims that defendants “allowed this practice to
continue after the incident giving rise to this claim.”
“[V]icarious liability is inapplicable to § 1983 suits[.]” Parrish v. Ball, 594
F.3d 993, 1001 (8th Cir. 2010). “[E]ach Government official, his or her title
notwithstanding, is only liable for his or her own misconduct.” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). A supervisor’s liability must be
based on his or her own “deliberate indifference or tacit authorization.”
Grayson v. Ross, 454 F.3d 802, 811 (8th Cir. 2006) (quoting White v. Holmes,
21 F.3d 277, 280 (8th Cir. 1994)). Defendants cannot be held liable merely
because of their roles as supervisors.
Piekkola claims the defendants are liable based on their failure to train
their subordinates.
In limited circumstances, a local government may be liable for its
decision not to train certain employees about their legal duty to
10

avoid violating citizens' rights. . . . A pattern of similar
constitutional violations by untrained employees is ordinarily
necessary to show deliberate indifference. It may be, however, that
evidence of a single violation of federal rights, accompanied by a
showing that a municipality has failed to train its employees to
handle recurring situations presenting an obvious potential for
such a violation, could trigger municipal liability.
Folkerts v. City of Waverly, Iowa, 707 F.3d 975, 982 (8th Cir. 2013) (citations
and quotations omitted). For a “failure to train” claim to survive a motion to
dismiss, a plaintiff must show (1) the policymaker's training practices were
inadequate, (2) the policymaker was deliberately indifferent to the rights of the
plaintiff, and (3) the training deficiencies caused a constitutional deprivation.
Ulrich v. Pope Cty., 715 F.3d 1054, 1061 (8th Cir. 2013).
Piekkola’s claim does not allege facts to support his allegation that the
training was inadequate, that defendants acted indifferently, or that training
caused violations of his constitutional rights. His bald assertion that training
was inadequate is not sufficient. Courts are not required to accept as true legal
conclusions “couched as factual allegation[s]” contained in a complaint.
Papasan v. Allain, 478 U.S. 265, 286 (1986). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 at
555.
Piekkola’s claims against defendants in their supervisory capacity are
“merely conclusory” and therefore insufficient to state a claim. Davis v. Hall,
992 F.2d 151, 152 (8th Cir. 1993); Parker v. Porter, 221 F. App'x 481, 482

11

(8th Cir. 2007). Defendants Kaemingk, Dooley, Gortmaker, and Smith are
dismissed without prejudice from all claims.
Jackley is also dismissed without prejudice. The only fact Piekkola
alleges in support of Jackley’s liability is that another parolee was told he was
arrested in order to “get him out of the way” during an investigation. Docket
12-1 at ¶ 75. This does not concern Piekkola; he does not have standing to
vindicate the rights of others. Therefore, it is irrelevant to his complaint.
Piekkola claims that Klimek and Doyle are liable both as supervisors and
because they were “active participant[s]” in the constitutional violations. Id. at
¶¶ 133, 141, 155, 182, 196. Because Piekkola states a claim that Klimek and
Doyle are liable as active participants, the claims against Klimek and Doyle are
not dismissed.
B.

Statute of Limitations

Piekkola claims his 2011 arrest was illegal. He makes this claim against
Slate and Badure. Docket 12-1 at ¶ 67. He claims that when he was arrested
he was not under investigation, there was no probable cause to arrest him, and
there was no reasonable suspicion that he committed a crime in violation of his
parole. Id. at ¶ 69. He claims DCI was investigating Karri, and this
investigation was made easier by arresting him. Id. at ¶ 71. He also claims he
was subject to an illegal search and seizure while in custody. Id. at ¶ 88. He
brings the search and seizure claim against Summers. Id. at ¶ 86.
Piekkola’s claims are barred by the statute of limitations. “The statute of
limitations for claims brought under 42 U.S.C. § 1983 is generally the
12

applicable state law period for personal injury torts.” Strandlund v. Hawley,
532 F.3d 741, 746 (8th Cir. 2008) (citing City of Rancho Palos Verdes, Cal. v.
Abrams, 544 U.S. 113, 124 n. 5 (2005)). Because 42 U.S.C. § 1983 does not
contain a specific statute of limitations, the United States Supreme Court has
instructed courts to apply the analogous state statute of limitations. Bell v.
Fowler, 99 F.3d 262, 265–66 (8th Cir. 1996) (citing Wilson v. Garcia, 471 U.S.
261, 266–68 (1985)). Under South Dakota law, “civil rights actions must be
brought within three years after the alleged constitutional deprivation occurred
or the action will be barred.” Id. at 266; SDCL 15-2-15.2.
Piekkola’s claims for illegal incarceration, search, and seizure are outside
of this three year period. He filed his complaint on September 21, 2015. Docket
1. Thus, his limitations period stretches back to September 21, 2012. He
claims he was illegally incarcerated and his phone was seized and searched in
November of 2011. Docker 12-1 at ¶ 28. Therefore, his claims are barred by the
three-year statute of limitations. This claim is dismissed.
C.

Right to Privacy

Piekkola claims defendants Kaufenberg, Travis Tjeerdsma, Kelly
Tjeerdsma, Dustin Tjeerdsma, and Reynolds violated his right to privacy by
accessing and disclosing his personal information, which included
“alcohol/drug treatment records, medical information, and mental health
records.” Docket 1 at ¶¶ 89-90. He claims, “[D]efendants used the information
to make uncouth statements regarding Piekkola to Karri Reynolds and others.”
Id. at ¶ 91.
13

The Eighth Circuit Court of Appeals has recognized generally that the
“Constitution protects individuals against invasion of their privacy by the
government.” McCaslin v. Campbell, No. 95–4041, 1997 WL 148824, at *2 (8th
Cir. April 2, 1997). “Th[e] protection against public dissemination of
information is limited and extends only to highly personal matters representing
‘the most intimate aspects of human affairs.’ ” Id. (quoting Eagle v. Morgan, 88
F.3d 620, 625 (8th Cir. 1996)). “[T]o violate the constitutional right of privacy
the information disclosed must be either a shocking degradation or an
egregious humiliation ..., or a flagrant bre[a]ch of a pledge of confidentiality
which was instrumental in obtaining the personal information.” Van Zee v.
Hanson, 630 F.3d 1126, 1128 (8th Cir. 2011) (quoting Cooksey v. Boyer, 289
F.3d 513, 516 (8th Cir. 2002)).
Prisoners’ privacy rights, however, are diminished due to their status.
See Hudson v. Palmer, 468 U.S. 517, 526 (1984) (“The recognition of privacy
rights for prisoners in their individual cells simply cannot be reconciled with
the concept of incarceration and the needs and objectives of penal
institutions”); Hill v. McKinley, 311 F.3d 899, 904 (8th Cir. 2002) (agreeing with
the general statement of law that “prison officials must balance an inmate's
right to privacy with the security needs of the institution”). The Eighth Circuit
Court of Appeals has not decided whether prison records are the type of
personal information protected under McCaslin and Van Zee.
The Eighth Circuit has, however, ruled on similar issues. The court held
that in 1991, there was “no clearly established constitutional right to non14

disclosure of HIV status.” Tokar v. Armontrout, 97 F.3d 1078, 1084 (8th Cir.
1996). But the Tokar holding was limited. The court stated: “[W]e hold that the
district court did not err in granting appellees’ motion for summary judgment.
We do so simply because Tokar either failed to allege constitutional violations
or set forth evidence sufficient to create triable issues of fact. On another
record, the result could have been different.” Id. at 1085.
In Beers v. Stockton, No.00-1119, 2000 WL 1839535 (8th Cir. 2000), the
court affirmed the denial of a prisoner’s privacy claim when a prison nurse
released his medical records to nonmedical prison staff of a prison where he
was being transferred. The court specifically noted that the release of Beers’
records to nonmedical staff “was related to penological concerns.” Id. at *1.
Of circuits that have ruled on this issue, including the Third, Second,
and Sixth Circuits, the majority have found that prisoners retain a limited right
to privacy. See Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999) (holding
that “the gratuitous disclosure of an inmate's confidential medical information
as humor or gossip . . . is not reasonably related to a legitimate penological
interest, and it therefore violates the inmate's constitutional right to privacy”);
Doe v. Delie, 257 F.3d 309, 317 (3d Cir. 2001) (holding that a prisoner’s right to
privacy in his HIV-positive status is “not fundamentally inconsistent with
incarceration,” and “the constitutional right to privacy in one's medical
information exists in prison”); Moore v. Prevo, 379 F. App'x 425, 428 (6th Cir.
2010) (holding “inmates have a Fourteenth Amendment privacy interest in

15

guarding against disclosure of sensitive medical information from other
inmates subject to legitimate penological interests”).
In an older case, the Seventh Circuit held that prisoners do not have a
constitutional right to the confidentiality of their medical records under the
general right of privacy. Anderson v. Romero, 72 F.3d 518, 523 (7th Cir. 1995).
The Eleventh Circuit has noted but not ruled on the issue. See Kahlout v.
Jefferson Cty. Jail, No. 2:14-CV-1126-KOB-TMP, 2015 WL 4032148, at *5 (N.D.
Ala. June 30, 2015) (“There are no Supreme Court opinions or published
opinions in this Circuit recognizing a prisoner's constitutional right to privacy
in his mental health records”).
In Smith v. Neb. State Penitentiary, No. 4:09CV3257, 2010 WL 829010 (D.
Neb. Mar. 3, 2010), the district court held that, even if the right exists, the
plaintiff’s complaint should be dismissed. The court held that the prisoner
failed to state a claim because he did not specify what confidential medical
information was disclosed or allege that the disclosure was unrelated to a
penological interest.
Piekkola specifies that defendants disclosed his medical information,
including his history of chemical dependency treatment. Docket 12-1 at ¶ 105.
He also alleges that there was no penological interest to justify defendants’
access to and disclosure of the medical information, and he articulates a
reasonable explanation as to why defendants may have violated his rights. Id.
at ¶ 36.

16

Piekkola’s claim should not be dismissed under § 1915A. The relative
silence from the Eighth Circuit does not mean that Piekkola has not stated a
claim that can survive screening. See Alfred v. Corr. Corp. of Am., 437 F. App’x
281, 287 (5th Cir. 2011) (explaining that “[t]he fact that there is not an
absolute right to this privacy protection says nothing about whether there is, in
fact, such a right in this particular case,” and holding that this lack of an
absolute right does not show that plaintiff’s legal argument is baseless).
Further, legitimate penological interest is the bedrock of prison litigation. See
Turner v. Safley, 482 U.S. 78, 89 (1987) (“when a prison regulation impinges on
inmates' constitutional rights, the regulation is valid if it is reasonably related
to legitimate penological interests”). Taking the facts alleged in Piekkola’s
complaint as true, the information was accessed and disclosed for
inappropriate reasons. At this stage, these allegations belie any argument that
the access and disclosure of Piekkola’s records were related to a legitimate
peneological interest. Piekkola states a claim on which relief may be granted,
and his privacy claim survives screening.
D.

Right to Associate

Piekkola claims that defendants Klimek, Dejong, Travis Tjeerdsma,
Doyle, and Stock violated his constitutional rights by denying him contact with
Karri. He claims he is not allowed to call her or contact her in any way. Docket
12-1 at ¶ 123. The Eighth Circuit analyzed prisoner phone use in Benzel v.
Grammer, 869 F.2d 1105 (8th Cir. 1989). Benzel analyzed a prison regulation
that required prisoners to submit a list of people the prisoner wanted to call
17

and restricted calls to the people listed. Id. at 1107. The court held, “A prisoner
has no right to unlimited telephone use.” Id. at 1108. “Although in some
instances prison inmates may have a right to use the telephone for
communication with relatives and friends, prison officials may restrict that
right in a reasonable manner, ‘subject to rational limitations in the face of
legitimate security interest of the penal institution.’ ” Id. (quoting Hutchings v.
Corum, 501 F. Supp. 1276, 1296 (W.D. Mo. 1980)). The court applied Turner to
determine the reasonableness of the regulation.
In Holloway v. Magness, 666 F.3d 1076 (8th Cir. 2012), the court
explained, “[T]he extent of inmates’ First Amendment right to communicate
with the outside world is a fact-intensive universe.” Id. at 1079. Here, Piekkola
claims that he is being denied contact with Karri without a legitimate reason
and provides possible illegitimate reasons to explain the denial. A more
fact-intensive discussion is necessary. Piekkola has provided enough to state a
claim on which relief may be granted. Therefore, Piekkola’s right to associate
claim survives screening.
E.

Deprivation of Property Without Due Process

“The Fourteenth Amendment's Due Process Clause protects persons
against deprivations of life, liberty, or property; and those who seek to invoke
its procedural protection must establish that one of these interests is at stake.”
Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Piekkola claims he was deprived
a property interest: the $50 fine. He alleges the fine was imposed after a DHO
hearing in which he claims he did not receive due process, and as a result, he
18

was found guilty of unauthorized contact with a former DOC employee. Docket
12-1 at ¶ 145. The issue is whether Piekkola’s due process rights are
implicated by this fine.
Inmates have a property interest in money received from outside sources.
Mahers v. Halford, 76 F.3d 951, 954 (8th Cir. 1996). Thus, inmates are entitled
to due process before they can be deprived of money. Id. Therefore, before he
can be deprived of his property, Piekkola must receive: “(1) advance written
notice of the disciplinary charges; (2) an opportunity, consistent with
correctional goals and safety, to call witnesses and present a defense; and (3) a
written statement of the evidence relied upon by the fact finder and the reasons
for the disciplinary action.” Dible v. Scholl, 506 F.3d 1106, 1110 (8th Cir. 2007)
(citing Superintendent v. Hill, 472 U.S. 445, 454 (1985); Wolff v. McDonnell, 418
U.S. 539, 563–67 (1974)). “The written notice must be adequate to enable the
accused prisoner to ‘marshal the facts and prepare a defense.’ ” Id. (quoting
Wolff, 418 U.S. at 564).
In Hill, the Supreme Court observed that although inmates have a strong
interest in avoiding arbitrary deprivations, that interest “must be
accommodated in the distinctive setting of a prison, where disciplinary
proceedings take place in a closed, tightly controlled environment peopled by
those who have chosen to violate the criminal law and who have been lawfully
incarcerated for doing so.” 472 U.S. at 454. The Court held that “the
requirements of due process are satisfied if some evidence supports the
decision by the prison disciplinary board to revoke good time credits.” Id. at
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455. If there is “any evidence” that supports the prison official’s finding, then
the punishment satisfies due process. Id. at 455–56. The Eighth Circuit has
upheld punishments under the “some evidence” standard when prisoners were
held responsible under prison rules to keep a communal area free of
contraband after weapons were found in the communal area. Flowers v.
Anderson, 661 F.3d 977, 980 (8th Cir. 2011).
Piekkola claims the DHO and UDC hearings violated his due process
rights. He claims that “[n]o evidence was presented that Piekkola had made any
unauthorized contact with a former employee.” Docket 12-1 at ¶ 147. Piekkola
admits that he spoke with Karri “numerous times each day” while incarcerated.
Id. at ¶¶ 34, 36. Piekkola’s only complaint about his due process rights being
violated is that no evidence was presented to show he had unauthorized
contact with a former employee. In light of Piekkola’s admission, his due
process claim fails.
F.

Retaliation

Piekkola alleges that all defendants have retaliated against him. Docket
12-1 at ¶ 161. He states:
All actions alleged in this Amended Complaint have in part been
motivated by retaliatory purposes to punish Piekkola for exercising
his First Amendment right to Associate and Fifth and Fourteenth
Amendment rights to Liberty. Piekkola has been subjected to illegal
incarceration, illegal search and seizure, illegal release of private
information, violation of right to associate, and defamation as
retaliation for his relationship with Karri Reynolds.
Id. at 163. The court construes this to be a claim of retaliation for exercising
his right to associate with Karri under the First Amendment. While Piekkola
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claims that he was retaliated against for his relationship with Karri, his right is
narrower than that: he has no constitutionally recognized right to be in a
relationship with Karri. He also has no constitutionally recognized rights under
the Fifth or Fourteenth Amendment that relate to her.
To state a claim of retaliation for exercising a First Amendment right,
Piekkola must show (1) he engaged in a protected activity; (2) defendants took
adverse action against him that would chill a person of ordinary firmness from
continuing in the activity; and (3) the adverse action was motivated at least in
part by the exercise of the protected activity. Santiago v. Blair, 707 F.3d 984,
991 (8th Cir. 2013). According to the amended complaint, Piekkola was
charged with rule infractions, placed in administrative detention multiple
times, harassed while in detention, and had his phone account deactivated
because he tried to communicate with Karri. Docket 12-1 at ¶¶ 47-49, 53-61,
64-66. Piekkola sufficiently alleges that his communication with Karri was
protected, the communication was unconstitutionally restricted, and the
restriction occurred because Piekkola tried to exercise his constitutional rights.
Therefore, Piekkola’s retaliation claim survives screening under § 1915A.
G.

Defamation

Piekkola claims Travis Tjeerdsma, Kelly Tjeerdsma, Dustin Tjeerdsma,
and Reynolds defamed him and damaged his reputation. He brings this claim
under state law. This court has jurisdiction over Piekkola’s state-law
defamation claim pursuant to 28 U.S.C. § 1367(a). “The district courts shall
have supplemental jurisdiction over all other claims that are so related to
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claims in the action within such original jurisdiction that they form part of the
same case or controversy under Article III of the United States Constitution.”
Id. In this case, the federal and state claims “derive from a common nucleus of
operative fact,” so exercising supplemental jurisdiction is appropriate. McRaven
v. Sanders, 577 F.3d 974, 984 (8th Cir. 2009) (citing United Mine Workers of
Am. v. Gibbs, 383 U.S. 715, 725 (1966)).
Under South Dakota law, defamation consists of either libel or slander.
Guilford v. Nw. Pub. Serv., 581 N.W.2d 178, 180 (S.D. 1998) (citing SDCL
20-11–2). “Slander is a false and unprivileged publication, other than libel,
which . . . [b]y natural consequence, causes actual damage.” SDCL 20-11-4.
Piekkola alleges that defendants “regularly made false verbal and written
statements,” including that he “was a thief, an alcohol/drug addict, a
physically assaultive person among other things.” Docket 12-1 at ¶ 200.
Piekkola states a claim upon which relief may be granted. This claim survives
screening under § 1915A.
III.

Motion For Reconsideration
Piekkola also moves this court to reconsider its earlier motion dismissing

his original complaint in part. Docket 11. Because Piekkola amended his
complaint after filing his motion for reconsideration, this motion is denied as
moot.
IV.

Summonses
As explained above, Piekkola’s original complaint passed screening, and

on November 10, 2015, Piekkola was sent summonses to fill out and return to
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the Clerk of Courts so the U.S. Marshall could serve defendants. Piekkola must
fill out these summonses before defendants can be served. The Federal Rules
provide:
If a defendant is not served within 90 days after the complaint is
filed, the court -- on motion or on its own after notice to the
plaintiff -- must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). Piekkola needs to complete the summonses and return
them to the Clerk of Courts within thirty days. Failure to return the
summonses within thirty days may result in dismissal of this action without
prejudice.
Defendants must be served and given a chance to respond before the
court can rule on Piekkola’s motion for a preliminary injunction.
CONCLUSION
Piekkola’s amended complaint raises seven claims. Piekkola failed to
state a claim for illegal incarceration, unreasonable search and seizure, or a
violation of due process. These claims are dismissed without prejudice
pursuant to 28 U.S.C. § 1915A(b)(1).
Piekkola also fails to state a claim against defendants Jackley,
Gortmaker, Smith, Kaemingk, and Dooley because they are only named as
supervisors or policy makers. Therefore they are dismissed.
In the amended complaint, Badure, Smith, and Slate are only named as
defendants to the illegal incarceration and retaliation claims. Because the
underlying illegal incarceration claim is dismissed, the retaliation claim is also
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dismissed as it relates to the allegedly illegal incarceration. Therefore Badure,
Smith, and Slate are dismissed.
In the amended complaint, Summers is only named as a defendant to the
illegal search and seizure and retaliation claims. Because the underlying
search and seizure claim is dismissed, the retaliation claim is dismissed as it
relates to the alleged search and seizure. Therefore, Summers is dismissed.
Piekkola’s privacy, right to associate, and defamation claims survive
§ 1915A screening. His retaliation claim also survives as it relates to exercising
his right to associate with Karri.
Accordingly, it is ORDERED
1. Plaintiff’s motion for reconsideration (Docket 11) is denied as moot.
2. Plaintiff's Claims 1, 2, and 5 are DISMISSED without prejudice
pursuant to 28 U.S.C. § 1915A(b)(1).
3. Plaintiff’s Claims 3, 4, 6, and 7 survive screening.
4. Defendants Jackley, Gortmaker, Smith, Kaemingk, Dooley Badure,
Smith, Slate, and Summers are DISMISSED without prejudice.
5. The United States Marshal shall serve a copy of the complaint
(Docket 1), Summons, and this Order upon defendants Josh Klimek,
Tammy Dejong, Travis Tjeerdsma, Kelly Tjeerdsma, Dustin Tjeerdsma,
Lee Kauefenberg, Lyle Stock, Tammy Doyle, and Steve Reynolds as
directed by plaintiff. All costs of service shall be advanced by the
United States.

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6. Defendants will serve and file an answer or responsive pleading to the
remaining claims in the complaint on or before 21 days following the
date of service.
7. Piekkola 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.
Dated March 8, 2016.
BY THE COURT:

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

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