Linson v. Klimek et al
OPINION AND ORDER granting defendant's 26 MOTION for Summary Judgment Signed by U.S. District Judge Roberto A. Lange on 03/08/2018. (SAC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
TODD D. LINSON,
OPINION AND ORDER GRANTING
DEFENDANTS'MOTION FOR SUMMARY
JOSH KLIMEK,'TAMMY DEJONG,
Plaintiff Todd D. Linson("Linson"), an inmate at the Mike Durfee State Prison("MDSP"),
filed this lawsuit alleging various state officials had deprived him ofrights guaranteed to him under
the Constitution of the United States. Doc. 1. Pursuant to 28 U.S.C. § 1915A, this Court granted
Linson leave to proceed in forma pauperis and dismissed certain claims and defendants from this
suit at the screening stage. Doc. 13. That opinion and order preserved Linson's claim of access
to the courts based upon alleged interference with his participation in his divorce proceedings and
a First Amendment claim based upon an alleged inability to utilize the MDSP grievance process.
Doc. 13 at 5-9. This Court also retained Josh Klimek ("Klimek") and Tammy Johnson DeJong
("DeJong"), as defendants (collectively "Defendants"). Doc. 13 at 11. Subsequently, Defendants
moved for summary judgment on Linson's remaining claims. Doc 26. For the reasons stated
below, this Court grants Defendants' motion for summary judgment.
Facts Not Subject to Genuine Dispute^
Linson is currently in the custody of the South Dakota Department of Corrections and
housed at MDSP. Doc. 32 at ^ 1; Doc. 36 at T[ 1. Klimek is a Unit Manager at MDSP and has
been employed by the South Dakota Department of Corrections for approximately 12 years. Doc.
30 at T[ 2. DeJong is a Case Manager at MDSP and has been an employee of the South Dakota
Department of Corrections for approximately 21 years. Doc. 28 at ^ 2.
Linson was served with a pro se divorce complaint filed by his then wife Rebekka Linson
("Rebekka") in early August of 2016. Doc. 1 at 6. In a letter to the judge assigned the divorce
case, Judge Lawrence E. Long, dated October 31, 2016, Linson explained that he had received a
no-contact order from Rebekka and advised that he would not contest the divorce ifthe court would
award him the following property: "1) 1990 Volvo S-70, wrecked, inoperable(already titled in
my name); 2) All personal items including clothes, paperwork, Sentry Fire Safe and contents; 3)
All tools, [h]and and power, used for defendant[']s job, with most provided by my employer."
Doc. 31-1 at 1.
Linson further stated that Rebekka could have all other property, and
acknowledged receipt of notice of a November 15, 2016, hearing for which he requested
permission to appear in person or by remote means such as telephone or video conference. Doc.
31-1 at 1-2. Linson also provided a proposed stipulation agreement which would have awarded
him the following property:
1) 1999^ Volvo S-70, titled in defendant's name. Wrecked, not operable.
^ The factual background included in this Opinion and Order focuses on the facts relevant to
Linson's remaing claims and is primarily derived from the uncontested portions ofthe Defendants'
statement of undisputed material facts. Doc. 32, Linson's statement of disputed material facts,
Doc. 36, affidavits of Linson, Klimek, DeJong, and Brittany Ulmer, Docs. 28, 29, 30, 37, and
exhibits submitted by the parties.
^ Linson's letter variously referred to the Volvo S-70 as a 1990 or 1999 Volvo. The reference to
a 1999 Volvo probably is a typographical error, as there appears to be a single 1990 Volvo S-70
owned by the Linsons.
2) All clothes to include pants, shirts[,] shorts, jeans, work wear, jerseys, cold
weather gear, shoes, boots, work boots.
3) All sports memorabilia, to include all Detroit Tigers items.
4) All Tools, including hand tools and power tools, and accessories, to include all
Porter Cable Multi-pack items.
5) All personal paperwork to include family photos, all United States Army
paperwork and veterans' paperwork. Sentry Fire Safe and contents.
6) An order allowing my assigned representative to receive all items listed.
Doc. 31-2. The proposed stipulation agreement was signed by Linson and notarized by DeJong.
Inmates at MDSP who wish to make phone calls are required to make arrangements in
advance in order to allow for planning of sufficient staff to assist and supervise the inmate. Doc.
30 at ^ 5; Doc. 32 at ^ 5. Inmates who wish to appear at a court hearing via telephone are further
required to show the notice they received regarding any such hearing and make their arrangements
with prison staff at least a day in advance. Doc. 30 at ^ 6; Doc. 32 at f 6. According to Linson,
he filed a request with Klimek on November 1,2016,indicating he needed to appear at his divorce
proceeding on November 15. Doc. 37 at T[ 3; s^ Doc. 35-1 (Linson phone request, dated Nov. 1,
2016). All parties agree that on November 15, Linson requested to make a phone call. Doc. 28 at
5; Doc. 30 at ^ 7; Doc. 32 atf 7; Doc. 37 at
3-4. Linson recalls telling DeJong that he needed
to call to participate in his court hearing and attempting to show her the notice of hearing. Doc.
36 at ]|6; Doc. 37 at
3-4. Linson recalls that DeJong told him to leave her office because it was
not "open door." Doc. 36 at ^ 6; Doc. 37 at If 4. DeJong claims that when Linson requested to
make a phone call on November 15, she directed him to make his request with Klimek and denies
that Linson informed her that the purpose ofthe call was to participate in his divorce proceedings.
Doc. 28 at
5-6. Klimek also claims that Linson did "not inform him that the purpose of the
phone call was to participate in his divorce proceedings and denies that Linson made any advance
request. Doc. 30 at ^^f 7-8; Doc. 32 at If^ 7-8. Linson says that he had no interaction with Klimek
on November 15,2016, and that Klimek'makes himself unavailable to his unit despite being Unit
Manager by vacating the unit and spending his time elsewhere. Doc. 36 at
7-8; Doc. 37 at T|2.
Judge Long entered a default Judgment and Decree of Divorce on November 15, 2016,
which divided the property between Linson and Rebekka as follows:
The parties shall retain as their separate property all of the vehicles, personal
clothing and effects, all household goods, appliances and such other items and
personal property as are currently in their respective possessions.
In addition the Plaintiff [Rebekka] shall be awarded the following property: the
2005 Chevrolet Impala [and] the 1990 Volvo YIN YVIL553DIX2569080.
Doc. 31-3 at 1.
Linson recalls approaching DeJong approximately one hour after being denied use of the
phone to request a grievance form and being told he could not have one because he could not
grieve prison policy. Doc. 36 at ^ 21; Doc. 37 at ^ 10. DeJong denies that Linson requested a
grievance form from her. Doc. 28 at f 7. Defendants claim Linson requested an Informal
Resolution Request Form from Brittany Ulmer, a unit coordinator at MDSP,on November 15 and
filled it out and dated it November 16, 2016. Doc. 29 at 6; Doc. 32 at ^ 21. Linson responds
that he did not receive this form until November 16,2016. Doc.36 at 21. Defendants also claim
that DeJong is not involved in the grievance process. Doc. 28 at f 7; Doc. 32 at ^ 15, but Linson
claims prison policy mandates DeJong, as part of the prison unit team, provide grievance forms to
inmates upon request, Doc. 36 at ^ 15.
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper
when "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." On summary judgment, the evidence is "viewed in the
light most favorable to the nonmoving party." True v. Nebraska.612 F.3d 676,679(8th Cir. 2010)
(quoting Cordrv v. Vanderbilt Mortg. & Fin., Inc., 445 F.3d 1106, 1109(8th Cir. 2006)). There is
a genuine issue of material fact if a "reasonable jury [could] return a verdict for either party" on a
particular issue. Mayer v. Countrywide Home Loans. 647 F.3d 789, 791 (8th Cir. 2011). A party
opposing a properly made and supported motion for summary judgment must cite to particular
materials in the record supporting the assertion that a fact is genuinely disputed. Fed. R. Civ. P.
56(c)(1); Gacek y. Owens 8l Minor Distrib.. Inc.. 666 F.3d 1142, 1145 (8th Cir. 2012). "Mere
allegations, unsupported by specific facts or evidence beyond the nonmoving party's own
conclusions, are insufficient to withstand a motion for summary judgment." Thomas v. Corwin.
483 F.3d 516, 527 (8th Cir. 2007). Summary judgment is not "a disfavored procedural shortcut,
but rather ... an integral part of the Federal Rules as a whole, which are designed 'to secure the
just, speedy and inexpensive determination of every action.'" Celotex Com, v. Catrett. 477 U.S.
317, 327(1986)(quoting Fed. R. Civ. P. 1).
Access to Courts
Linson claims that he was deprived of his constitutional right of access to the courts when
Defendants prevented him from using the phone to participate in his divorce proceedings. Doc. 1
6-19. Defendants argue that Linson's claim fails because he was not denied access to the
courts in order to challenge his sentence or conditions of confinement, and that even if he did have
a right to appear at the divorce proceedings he was not denied that right because Linson failed to
follow prison policy regarding phone calls. Doc. 31 at 6-7. Defendants also argue that they
would be entitled to qualified immunity because the right to access the courts for divorce
proceedings is not a clearly established right.^ Doc. 31 at 7-8.
^ Defendants also advance an argument before this Court that Linson lacks standing to proceed
with this cause of action because "it appears that he received all the property that he was
requesting[,]" and that "[b]y the plain reading of the Judgment Rebekka was not awarded the 1999
In its previous order in this case, this Court noted that the Supreme Court's decision in
Boddie v. Connecticut. 401 U.S. 371 (1971), made the question ofLinson's claim regarding access
to the courts colorable and thus allowed it to progress past the screening stage. Doc. 13 at 7-8.
Boddie recognized that marriage involves "interests of basic importance in our society" and
deemed a refusal to allow a person seeking a divorce access to the courts to be a denial of due
process. Id at 376, 380-81. Boddie involved indigent plaintiffs challenging a state law that
required the payment of certain court fees to file for divorce, and not an inmate asserting a
constitutional right to participate in divorce proceedings as exists here.
An inmate's constitutional right ofaccess to the courts was first recognized by the Supreme
Court ofthe United States in Exnarte Hull. 312 U.S. 546,549(1941), when the Court struck down
regulations which limited state prisoners from filing habeas corpus petitions. Since that time, a
long history of cases has "established beyond doubt that prisoners have a constitutional right of
access to the courts." Bounds v. Smith. 430 U.S. 817, 821 (1977). One of the most robust
articulations of the right of access occurred in Bounds, which established that "the fundamental
constitutional right of access to the courts requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by providing prisoners with adequate law
libraries or adequate assistance from persons trained in the law." Id at 828. In the aftermath of
Volvo S-10 or the personal items Linson requested." Doc. 31 at 6. This argument is unavailing.
The divorce decree awarded to Linson and Rebekka the personal property "in their respective
possessions" and gave Rebekka a 1990 Volvo. Doc. 31-3. As Linson points out, he was not in
possession of his property due to his incarceration. Doc. 36 at % 25. Moreover, Defendants'
assertion that Linson was not harmed because Rebekka was not awarded a 1999 Volvo S-10 [sic]
plays with Linson's apparent typographical error in describing the vehicle once as a 1990 Volvo
S-70 and once as a 1999 Volvo S-70. Despite the discrepancy in Linson's description ofthe Volvo
between his letter to Judge Long(1990 Volvo S-70) and his proposed stipulation (1999 Volvo S70), Linson plainly was seeking a Volvo which was awarded to Rebekka, demonstrating actual
injury sufficient for standing to proceed with this cause of action.
Bounds, the Court in Lewis v. Casey. 518 U.S. 343 (1996), narrowed the scope of the right of
access to the courts. In an opinion authored by Justice Scalia, the Court made clear that Bounds
did not establish "an abstract, freestanding right to a law library or legal assistance" but rather
emphasized that meaningful access is the touchstone of the constitutional right of access doctrine.
Lewis. 518 U.S. at 350. Importantly, the majority specifically disclaimed excerpts in Bounds
suggesting that states are required to enable prisoners "to discover grievances and to litigate
effectively once in court." 518 U.S. at 354(emphasis omitted).
The discussion in Lewis regarding the type of legal claims which, when fhistrated by the
State, may give rise to an access-to-courts grievance is of most importance to Linson's case. The
Court pointed out that "[njearly all" of the cases which gave rise to Bounds "involved attempts by
inmates to pursue direct appeals from the convictions for which they were incarcerated." 518 U.S.
at 354. It was further noted that the Court had "extended this universe of relevant claims only
slightly, to 'civil rights actions'—i.e., actions under 42 U.S.C. § 1983 to vindicate 'basic
constitutional rights.'" Id. fquoting Wolff v. McDonnell. 418 U.S. 539, 579 (1974)). The Court
concluded its narrowing of Bounds with this statement;
In other words, Bounds does not guarantee inmates the wherewithal to transform
themselves into litigating engines capable of filing everything from shareholder
derivative actions to slip-and-fall claims. The tools it requires to be provided are
those that the inmates need in order to attack their sentences, directly or collaterally,
and in order to challenge the conditions of their confinement. Impairment of any
other litigating capacity is simply one of the incidental (and perfectly
constitutional) consequences of conviction and incarceration.
Id. at 355 (emphasis in original).
In its previous order, this Court recognized the challenge Linson's claim may face under
Lewis, but rejected dismissal at the screening stage because his grievance was not based upon a
lack of affirmative assistance from the State—a claim to which Lewis clearly closes the door—
but rather the barrier to court access created by Defendants' refiisal to allow him to use a telephone
to seek to participate in his divorce proceedings. Doc. 13 at 7. However, the Eighth Circuit's
jurisprudence on right-of-access claims, derived from the Supreme Court's decision in Lewis.
prevents Linson from advancing his claim any further. Recognizing that Lewis lays out the
framework for analyzing access-to-courts claims brought by inmates, the Eighth Circuit has held
"the right of access to the courts guarantees an inmate the ability to file lawsuits that directly or
collaterally attack the inmate's sentence or that challenge the conditions of the inmate's
confinement, but it does not extend to the right to 'discover grievances' or to 'litigate effectively
once in court.'" Codv v. Weber. 256 F.3d 764, 767-68 (8th Cir. 2001)(quoting Lewis. 518 U.S.
at 354—55). "The right of access to the courts is satisfied if the prisoner has the capability of
bringing contemplated challenges to sentences or conditions of confinement before the courts."
Zink v. Lombardi, 783 F.3d 1089, 1108 (8th Cir. 2015)(en banc)(per curiam)(citation omitted).
Importantly,the Eighth Circuit has specifically held that in order to state an access-to-courts claim,
an inmate "must establish the state has not provided an opportunity to litigate a claim challenging
the prisoner's sentence or conditions of confinement in a court of law which resulted in actual
injury, that is, the hindrance of a nonfiivolous and arguably meritorious underlying legal claim."
Williams v. Hobbs. 658 F.3d 842, 851-52(8th Cir. 2011).
Linson argues he was deprived of his constitutional right of access to the courts by
defendants Klimek and DeJong when they prevented him from participating in his divorce hearing
via telephone. Under Eighth Circuit precedent regarding the right-of-access doctrine, his claim
cannot survive because he has not alleged or shown that the State prevented him from litigating a
claim challenging his sentence or conditions of confinement. Rather, Linson alleges that prison
officials prevented him from litigating his divorce which resulted in a loss of his property.
Unfortunately for Linson, the principles articulated by the Eighth Circuit in the aftermath of Lewis
render his claim to be an "impairment of[an] other litigating capacity" that does not give rise to
an access-to-courts claim. See Wagner v. Gober, No. 4;15-CV-1789 CAS,2017 WL 2984841, at
*4(E.D. Mo. July 13,2017)(finding an inmate had no access-to-courts claim where prison official
prevented him fi om filing divorce papers, resulting in lost property and chance for greater child
custody rights); Shaw v. Gibson. No. 5:14CV00139-JM-JJV, 2014 WL 3057407 at *2(E.D. Ark.
June 17,2014)(finding a prisoner's inability to participate in his divorce proceedings did not create
an acces-to-courts claim because prisoner was not attempting to litigate a challenge to his sentence
or conditions of confinement).'^
This Court recognizes the inherent inconsistency that exists when a prisoner who has been
prevented from participating in his divorce action—an opportunity which the Supreme Court in
Boddie deemed to be a constitutional right, albeit not in the prisoner context—cannot seek recourse
in a court oflaw against the State whose actions prevented his participation. However, this Court
must follow the holdings of the Eighth Circuit and the Supreme Court and dismiss Linson's rightof-access claim. Despite the fact that a prisoner may not bring an access-to-courts claim when
prevented from litigating a divorce, the staff at MDSP,and indeed at all penal institutions in South
Dakota, have little reason or excuse to deny inmates this access. As the Supreme Court has long
recognized, "marriage involves interests of basic importance in our society[,]" and an individual
cannot dissolve a marriage "without invoking the State's judicial machinery." Boddie. 401 U.S.
at 376. Persons who must settle their disputes through the judicial process—and there is no other
^ Several courts outside of the Eighth Circuit also have held that the constitutional right of access
to the courts does not encompass litigation involving divorce cases. See, e.g.. Dopp v. W. Dist. of
Okla., 105 F. App'x 259, 260 (10th Cir. 2004); Wvlie v. Montana Women's Prison, No. CV 1353-BLG-SEH, 2014 WL 1871825, at *2 (D. Mont. May 8, 2014); Mclntosh v. Thompson. No.
6:09cv444, 2010 WL 5677139, at *8(E.D. Tex. Mar. 22, 2010).
mechanism available for the dissolution ofmarriages—must be given a meaningful opportunity to
be heard,"absent a countervailing state interest of overriding significance." Id. at 377. There has
been no suggestion that any such overriding interest exists which necessitated the denial of
Linson's request to participate in his divorce hearing by telephone, and indeed this Court considers
it highly unlikely that there is a viable justification in this case. The provision of a telephone is a
relatively minor inconvenience for the State, especially in comparison to the corresponding benefit
of allowing inmates the opportunity to present their interests in court proceedings ofsuch personal
significance as a divorce. Indeed, a series of state court decisions support allowing inmates to
participate in divorce proceedings by telephone, if not in person, particularly when the disposition
of property is involved. See, e.g.. Wilson v. Wilson. 469 N.W.2d 750, 753 (Neb. 1991)("We
assume, then, that a prison inmate must be given a meaningful opportunity to be heard in
responding to a marriage dissolution action."); Pavne v. Superior Court. 553 P.2d 565, 568-73
(Cal. 1976) (recognizing that defending one's property in court "is a right of fundamental
constitutional dimension" and holding an indigent inmate had been deprived of his due process
right of access to the courts when prevented from meaningfully attending his civil suit to present
a defense); In re D.D.J.. 136 S.W.3d 305, 313-14 (Tex. App. 2004)(holding that all litigants,
including inmates, who are "forced to settle disputes through the judicial process have a
fundamental right under the federal constitution to be heard at a meaningful time in a meaningful
manner")(citation omitted). This Court trusts and expects that those officials charged with the
custody of South Dakota's inmate population will bear these interests in mind the next time one
of their charges seeks to participate by telephone in a proceeding of such basic importance.
Nevertheless, Linson cannot establish as a matter oflaw that he has been deprived of his
constitutional right of access to the courts based upon a denial by Defendants to allow for his
participation in divorce proceedings. Defendants are therefore entitled to summary judgment on
Linson's access-to-courts claim. As Linson fails to establish the existence of a violation of a
constitutional right, this Court does not address Defendants' arguments regarding the existence of
Refusal to Allow Grievance^
This Court also preserved Linson's claim against DeJong regarding his inability to access
the MDSP grievance procedures. Doc. 13 at 9. However, as with Linson's access-to-courts claim
above, DeJong is entitled to summary judgment because Linson has not established that he has
been deprived of a constitutional right.
It is clearly established law in the Eighth Circuit that a prisoner has a Tirst Amendment
right "to petition for redress of grievances under a prison's grievance procedures." Nelson v.
Shuffman. 603 F.3d 439, 449 (8th Cir. 2010). This right protects a prisoner from retaliation by
prison officials for use of the grievance process, but does not confer a right to access that process.
The Eighth Circuit has previously held there is no liberty interest in access to a prison's
administrative remedy procedures. See Flick v. Alba. 932 F.2d 728, 729 (8th Cir. 1991)(per
curiam). "When the claim underlying the administrative grievance involves a constitutional right,
the prisoner's right to petition the government for redress is the right of access to the courts, which
^ In his complaint, Linson indicated he sought a grievance form to complain about the adequacy
of the prison law library. Doc. 1 at ^ 32. Defendants assert that Linson requested an Informal
Resolution Request form on November 15 in which he complained about not being allowed to use
the phone to participate in his divorce hearing, and has never filed a grievance regarding the prison
library. Doc. 32 at ^[^120-21. Linson claims DeJong refused his request for a grievance form on
November 15 because he could not grieve prison policy, and that he did not receive the form
referenced by Defendants until November 16. Doc. 36 at ^ 21; Doc. 37 at 10. Thus, it is unclear
if Linson was denied a grievance form to grieve the adequacy ofthe prison library or to grieve the
denial ofhis request to use the phone to participate in his divorce hearing. Because inmates do not
have a liberty interest in access to a prison's grievance system, this distinction is irrelevant.
is not compromised by the prison's refusal to entertain his grievance." Id Assuming the facts in
the light most favorable to Linson, the denial by DeJong to provide Linson a grievance form does
not constitute the deprivation of a constitutionally protected right. Linson was able to bring his
claims before this Court and have them evaluated on the merits, and this right was not
compromised by DeJong's refusal to give him a grievance form. DeJong's motion for summary
judgment with respect to Linson's claimed inability to grieve issues is granted.
Official Capacity claims
Linson brought suit against the defendants in both their official and individual capacities,
seeking injunctive and monetary relief. Because both ofLinson's claims which survived screening
fail as a matter of law, this Court need not address arguments regarding official capacity.
For the reasons stated above, it is hereby
ORDERED that Defendants' motion for summary judgment, Doc. 26, is granted.
day of March, 2018.
BY THE COURT:
ROBERTO A. LANGE'
UNITED STATES DISTRICT JUDGE
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