Abdulrazzak v. Kaemingk et al

Filing 13

ORDER granting 10 Motion to Amend Complaint; denying 11 Motion to Appoint Counsel; Dismissing Amended Complaint in part, and directing service. Signed by U.S. District Judge Karen E. Schreier on 7/14/17. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
HAIDER SALAH ABDULRAZZAK,

4:17-CV-04058-KES

Plaintiff,
vs.
DENNIS KAEMINGK, AARON MILLER,
SD. BD OF PARDONS AND PAROLES,
DOUG CLARK, ROBERT DOOLEY,
SUSAN JACOBS, KIM LIPINCOTT, J.C.
SMITH, DUSTI WERNER,
DAKOTA PSYCHOLOGICAL SERVICES
LLC., JUSHUA J. KAUFMAN, JOHN
DOE 1, JOHN DOE 2, JANE DOE,

ORDER GRANTING MOTION TO
AMEND, DENYING MOTION TO
APPOINT COUNSEL, DISMISSING
AMENDED COMPLAINT IN PART,
AND DIRECTING SERVICE

Defendants.
INTRODUCTION
Plaintiff, Haider Salah Abdulrazzak, is an inmate at the Mike Durfee
State Prison in Springfield, South Dakota. He filed a pro se civil rights lawsuit
under 42 U.S.C. § 1983, Docket 1, and now moves to amend his complaint
and moves the court to appoint him counsel. Docket 10; Docket 11. The court
grants Abdulrazzak’s motion and screens his amended complaint under 28
U.S.C. § 1915A. For the reasons stated below, the court dismisses
Abdulrazzak’s amended complaint in part and directs service in part.

FACTUAL BACKGROUND
Abdulrazzak was paroled on June 25, 2014. Docket 10-1 at 7. While on
parole, Abdulrazzak temporarily settled his civil case concerning immigration.
Id. After this settlement, on April 20, 2016, Dusti Werner, Abdulrazzak’s
parole agent, told him she was adding more restrictions to his original parole
agreement, even though he had not committed a new offense or violated his
parole. Id.
Under the new restrictions, Abdulrazzak was required to go through sex
offender treatment and admit guilt (it appears through a polygraph test) to his
original convictions. Id. at 4, 7. Abdulrazzak alleges that these restrictions are
not applied to U.S. citizens. Id. at 4. Abdulrazzak alleges that defendants did
not discuss these requirements with him before he was paroled, even though
they discussed them with other parolees who were U.S. citizens. Id. at 6.
Abdulrazzak told his parole agent he would not admit guilt because his
admission could be used against him to support his conviction or bring new
charges, including perjury. Id. at 7. Werner told Abdulrazzak that his parole
would be revoked if he did not admit his guilt. Id. at 4. Abdulrazzak alleges
that defendants tried to coerce him into admitting his guilt by denying him
entry into a treatment program for Post-Traumatic Stress Disorder (PTSD),
refusing to let him do laundry in the summer, keeping his GPS monitor on
after he passed two polygraph tests, charging him for services on parole, and
sending that bill to a collection agency. Id. at 7, 13.

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During this time, Abdulrazzak also alleges that defendants kept him
from accessing the courts. Id. at 15. He alleges that defendants denied him
access to the prison law library, paper, the internet, and email, so he could
not work on his immigration case or his habeas case. Id. They also would not
let him access his documents, though he states that Werner offered to let him
print them on her printer, and he refused. Id. at 18. Abdulrazzak missed the
deadline for filing an appeal because of these denials. Id. at 15.
Eventually, Abdulrazzak alleges that correctional officers took the flash
drive on which he stored his legal documents. Id. at 18. Unknown correctional
officers routinely inspected the lockers where Abdulrazzak’s flash drive was
stored, and they were the only people with access to the lockers. Id. at 19.
Abdulrazzak alleges that there were more valuable items in his locker that
were not taken. Id. at 20.
On November 2, 2016, Werner filed an allegation of a parole violation
against Abdulrazzak. Id. at 19. Because of this alleged violation, Abdulrazzak
was incarcerated in the Jameson Annex for 30 days. Id. On November 15,
2016, a hearing was held concerning this allegation, and Abdulrazzak was told
that he had no rights under the Fifth Amendment because he was a parolee.
Id. at 4. On March 13, 2017, the parole board upheld the decision, which
appears to be the revocation of Abdulrazzak’s parole. Id.
On April 24, 2017, Abdulrazzak filed a complaint under § 1983. In his
complaint and in a letter he later sent to the court, Abdulrazzak stated that he
wished to file an amended complaint. Docket 1 at 9; Docket 7. The court
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instructed Abdulrazzak that he had the right to amend his complaint and
ordered Abdulrazzak to file his amended complaint by June 8, 2017. Docket 9.
On May 24, 2017, Abdulrazzak moved to amend his complaint and attached a
proposed amended complaint to his motion. Docket 10; Docket 10-1. In his
amended complaint, Abdulrazzak raises seven claims, seeking declaratory and
injunctive relief as well as damages. Docket 10-1 at 9. The motion to amend is
granted.
LEGAL STANDARD
The court must accept the well-pleaded allegations in the complaint as
true and draw all reasonable inferences in favor of the non-moving party.
Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014). Civil rights
and pro se complaints must be liberally construed. Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citation omitted); 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). Civil rights complaints cannot be merely conclusory. Davis v.
Hall, 992 F.2d 151, 152 (8th Cir. 1993); Parker v. Porter, 221 F. App’x 481, 482
(8th Cir. 2007).
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 a plaintiff cannot make the requisite showing, dismissal is
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appropriate.” Abdullah v. Minnesota, 261 F. App’x 926, 927 (8th Cir. 2008);
Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). Under 28 U.S.C.
§ 1915A, the court must screen prisoner complaints and dismiss them if they
are “(1) frivolous, malicious, or fail[] to state a claim upon which relief may be
granted; or (2) seek[] monetary relief from a defendant who is immune from
such relief.” 1915A(b).
DISCUSSION
Abdulrazzak’s amended complaint raises seven claims under the First,
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. Docket 10-1. A
number of his allegations are conclusory and repetitive, and his claims are
often reiterated in multiple counts. The court has attempted to discuss each
claim within separate counts, even though Abdulrazzak makes similar
allegations throughout his amended complaint.
I.

Count I
In Count I, Abdulrazzak raises claims under the First, Fifth, Eighth, and

Fourteenth Amendments against South Dakota Secretary of Corrections (SD
DOC) Dennis Kaemingk, SD DOC Policy Maker Aaron Miller, the SD Board of
Pardons and Paroles (the Board), and the Director of the Board Doug Clark.
Docket 10-1 at 4. Abdulrazzak states that he brings these claims against
defendants “as municipalities” and alleges that there is a policy to
discriminate against him as a non-citizen of the United States. Id. He alleges
that the policy required him to admit his guilt and participate in sex offender
treatment, requirements that were not in his original parole agreement. Id.
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The defendants are not “municipalities.” Even if they were, a
municipality may only be liable for a violation of constitutional rights if the
violation was caused by its customs or policies. Crawford v. Van Buren Cty.,
Ark., 678 F.3d 666, 669 (8th Cir. 2012) (quoting Rynders v. Williams, 650 F.3d
1188, 1195 (8th Cir. 2011)). Abdulrazzak does not point to a custom or policy
that violated his rights. He argues that he was discriminated against as a noncitizen and an Iraqi, but he alleges that the discrimination started two years
into his parole. He does not explain how his citizenship status or nationality
changed and caused defendants to begin discriminating against him. He also
alleges elsewhere that the parole requirements were added after and because
his immigration case was settled. Docket 10-1 at 6. Therefore, Abdulrazzak
fails to state a claim upon which relief may be granted, and his claim is
dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
II.

Count II
In Count II, Abdulrazzak raises claims under the First, Fifth, Eighth,

and Fourteenth Amendments against Warden Robert Dooley, Deputy Warden
Susan Jacobs, and Unit Staff Member Kim Lippincott. Docket 10-1 at 6.
Abdulrazzak claims that Dooley, Jacobs, and Lippincott violated his rights by
failing to discuss the requirements of parole that were subsequently added. Id.
He alleges that they discussed the parole requirements with United States
citizens. Id. He also alleges that if defendants had discussed these parole
requirements with him, he would have invoked his Fifth Amendment rights.
Id.
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In McKune v. Lile, 536 U.S. 24 (2002), a plurality of the Supreme Court
held that prison officials did not violate a prisoner’s Fifth Amendment rights
when they changed the prisoner’s privilege status level and moved him to a
maximum-security facility after he refused to participate in a sexual abuse
treatment program, which required him to admit all prior improper sexual
activities without guaranteed immunity. The Court found that these
consequences were not severe enough to constitute “compulsion” for purposes
of the Fifth Amendment right against self-incrimination. Id. There, the plaintiff
complained he would be transferred and lose privileges, but the Court
observed that his decision would “not extend his term of incarceration” or
affect his parole eligibility. Id. at 38.
The Eighth Circuit Court of Appeals discussed McKune in Entzi v.
Redmann, 485 F.3d 998 (8th Cir. 2007). There, Entzi claimed that his
probation officer compelled him to be a witness against himself by filing a
petition to revoke his probation when it was discovered that Entzi had not
finished the sex offender treatment. Id. at 1001. The state did not revoke
Entzi’s probation, but Entzi did have to pay an attorney to defend him in the
revocation process. Id. at 1002. The Eighth Circuit found that this did not
constitute compulsion.
The Eighth Circuit found that, even assuming the probation officer’s
actions constituted compulsion, Entzi did not have a cause of action for
damages under § 1983. “[T]he general rule is that a person has no claim for
civil liability based on the Fifth Amendment's guarantee against compelled
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self-incrimination unless compelled statements are admitted against him in a
criminal case.” Id. (citing Chavez v. Martinez, 538 U.S. 760, 767 (2003)). The
“core guarantee” of the self-incrimination clause is evidentiary. Id. (citing
Chavez, 538 U.S. at 778). Although the court “left open the possibility that a
‘powerful showing’ might persuade [it] to expand the protection of the selfincrimination clause to the point of civil liability,” an expansion of the clause
should not be implemented through money damages. Id. (quoting Chavez, 538
U.S. at 778) (citation omitted).
The Eighth Circuit found that Entzi had made no showing that
evidentiary protections were inadequate to protect his constitutional rights. Id.
at 1002-03. Here, Abdulrazzak alleges more serious consequences than paying
an attorney to defend him: he alleges his parole was actually revoked. This
was one of the consequences the Supreme Court stated may violate a
prisoner’s rights in McKune. See Bradford v. Mo. Dep't of Corr., 46 F. App’x
857, 858 (8th Cir. 2002) (finding prisoner stated a claim under McKune by
claiming that defendants’ violated his constitutional rights by denying him
parole because of his refusal to participate in sex offender treatment). Because
the court is viewing this claim in the light most favorable to Abdulrazzak at
this stage, the claim is not frivolous or malicious and may state a cause of
action.
The court will next consider whether Abdulrazzak has stated a claim
against Dooley, Jacobs, and Lippincott. Abdulrazzak fails to allege facts
concerning how these individual defendants violated his rights. Based on their
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titles, it appears that defendants are prison employees, and such defendants
generally are not liable in claims concerning parole. See Munson v. Norris, 435
F.3d 877, 879-80 (8th Cir. 2006) (upholding dismissal of prisoner’s claims that
he was being forced to admit to crimes he was convicted of in sex offender
treatment because he sued prison officials who had no authority over prison
conditions). Therefore, Abdulrazzak fails to state a claim upon which relief
may be granted in Count II, and that claim is dismissed under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
III.

Count III
In Count III, Abdulrazzak claims that his rights were violated because

defendants did not discuss the new parole requirements with him, and they
unconstitutionally added the new requirements without notice. In Figg v.
Russell, 433 F.3d 593 (8th Cir. 2006), a South Dakota parolee alleged that she
was illegally incarcerated after being detained for a parole violation. Figg
raised a claim against her parole agent because the agent offered her a parole
agreement without giving her notice that the terms applied to her previously
suspended sentence. Id. at 599. The Eighth Circuit found this function “so
associated with the function of the Parole Board that [the parole agent], too, is
cloaked in absolute immunity[,]” and dismissed the claim. Id. at 599-600
(citing SDCL 24–15–1.1).
Abdulrazzak has not alleged that Dusti Werner, J.C. Smith, and Jushua
Kaufman made an independent decision to add parole requirements. In fact,
in Count I, Abdulrazzak alleges that this is a policy of the parole board. The
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decisions are therefore “so connected to the quasi-judicial role the Parole
Board performed in granting parole in the first place, that they were but an
extension of that function[,]” and defendants are absolutely immune.
Therefore, Abdulrazzak fails to state a claim upon which relief may be granted,
and Count III is dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
IV.

Count IV
In Count IV, Abdulrazzak claims that Kaufman denied him treatment for

PTSD in order to coerce him to agree to admit to his crimes, that he was
completely denied access to legal assistance and computers to do legal
research, and that he was denied the ability to do laundry multiple times.
Docket 10-1 at 13-14. The Eighth Circuit has found that a parolee states a
claim of deliberate indifference to serious medical needs by alleging that a
parole officer interfered with the parolee’s attempts to receive medical care.
See Jones v. Moore, 986 F.2d 251, 253 (8th Cir. 1993). Abdulrazzak alleges
that Kaufman denied him access to care for his PTSD. Therefore, Abdulrazzak
states a deliberate indifference claim against Kaufman, and this claim survives
screening.
Abdulrazzak also alleges that Kaufman denied him access to legal
assistance or computers to do legal research and the ability to do laundry.
Both of these claims fail because Kaufman is a psychologist. Docket 10-1 at
11. As such, Kaufman has no power over whether Abdulrazzak is allowed to
use a computer or do his laundry. Therefore, Abdulrazzak fails to state a claim
upon which relief may be granted, and these claims against Kaufman for
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denial of access to legal assistance on computers and laundry are dismissed
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
V.

Count V
In Count V, Abdulrazzak alleges that Werner violated his constitutional

rights by denying him access to the courts. Abdulrazzak alleges that Werner
denied him access to his legal documents, denied him paper, and denied him
access to the law library or any computer. Docket 10-1 at 15. Abdulrazzak
alleges that he was working on his habeas petition and an immigration case,
and Werner caused him to miss a deadline for filing, although he does not
state for which case. Id.
“The Constitution guarantees prisoners a right to access the courts.”
White v. Kautzky, 494 F.3d 677, 679 (8th Cir. 2007). This 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. (citation omitted). Although it
does not appear that Abdulrazzak was incarcerated in the penitentiary, his
amended complaint makes it clear that he was incarcerated in some form at
that time and that defendants had control over his access to the courts.
To prove a violation of the right of access to the courts, a prisoner must
establish that he has been injured by the violation. Id. at 680. Abdulrazzak
alleges that he missed a filing deadline because he was not allowed the
assistance described above. In fact, he alleges he was purposefully denied.

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Therefore, Abdulrazzak states a claim that he was denied access to the courts
by Werner.
VI.

Count VI
In Count VI, Abdulrazzak repeats the allegations concerning the

changes in his parole conditions discussed above. He adds that Werner and
Kaufman deprived him of his cell phone, video visitation with his parents, calls
to his niece, and Arabic-language media. As discussed above, the addition of
these conditions did not violate Abdulrazzak’s rights, and these conditions are
the type of condition that the Supreme Court found did not constitute
compulsion under the Fifth Amendment. See McKune, 536 U.S. at 24.
Therefore, Abdulrazzak fails to state a claim upon which relief may be granted,
and his claim is dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1).
VII.

Count VII
In Count VII, Abdulrazzak alleges that unknown correctional officers

denied him access to the courts. He alleges that his property, including a flash
drive which had his legal materials stored on it, was under the control of the
unknown correctional officers who had the only key to his locker, which was
locked at all times. Docket 10-1 at 18-19. He alleges that unknown
correctional officers intentionally “lost” his flash drive in order to stop him
from fighting deportation in his immigration case. Id. at 18. He also alleges
that this was done in order to end his habeas case and the uncovering of
unconstitutional actions by the state during his trial. Id. at 18-19. Finally,
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Abdulrazzak argues that it is unlikely that his flash drive was stolen by
another inmate because there were items far more valuable than the flash
drive in his locker that were not taken. Id. at 20.
“The taking of an inmate's legal papers can be a constitutional violation
when it infringes his right of access to the courts.” Goff v. Nix, 113 F.3d 887,
892 (8th Cir. 1997) (citation omitted). “[T]he destruction or withholding of
inmates' legal papers burdens a constitutional right, and can only be justified
if it is reasonably related to a legitimate penological interest.” Id. Defendants
have not been served and have not had a chance to justify their actions. At
this point, it is premature to dismiss Abdulrazzak’s claim. The court finds that
he states a denial of access to the courts claim upon which relief may be
granted against John Doe 1 and John Doe 2.
VII.

Motion to Appoint Counsel
Abdulrazzak moves the Court to appoint him counsel. Docket 11. “A pro

se litigant has no statutory or constitutional right to have counsel appointed
in a civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998). In
determining whether to appoint counsel to a pro se litigant’s civil case, the
district court considers the complexity of the case, the ability of the litigant to
investigate the facts, the existence of conflicting testimony, and the litigant’s
ability to present his claim. Id. Abdulrazzak’s claims are not complex, and he
appears able to adequately present his § 1983 claims at this time. Therefore,
his motion is denied.

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The Court is aware that this situation may change as litigation
progresses. As the Eighth Circuit Court of Appeals instructs, the court will
“continue to be alert to the possibility that, because of procedural complexities
or other reasons, later developments in the case may show either that counsel
should be appointed, or that strict procedural requirements should, in
fairness, be relaxed to some degree.” Williams v. Carter, 10 F.3d 563, 567
(8th Cir. 1993).
Thus, it is ORDERED
1.

Abdulrazzak’s motion to amend (Docket 10) is granted.

2.

The clerks office shall refile Docket 10-1 as Abdulrazzak’s amended
complaint.

3.

Abdulrazzak’s deliberate indifference claim against Kaufman (part
of Count IV), his denial of access to the courts claim against Werner
(Count V), and his denial of access to the courts claim against John
Doe 1 and John Doe 2 (Count VII) survive screening under 28
U.S.C. § 1915A(b)(1).

4.

The remainder of Abdulrazzak allegations fail to state a claim upon
which relief may be granted, and these claims are dismissed under
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Dennis Kaemingk,
Aaron Miller, SD. BD. of Pardons and Paroles, Doug Clark, Robert
Dooley, Susan Jacobs, Kim Lippincott, J.C. Smith, Dakota
Psychological Services LLC, and Jane Doe are dismissed as
defendants.
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5.

The Clerk shall send blank summons forms to Abdulrazzak so he
may cause the summons and amended complaint to be served
upon Kaufman, Werner, Doe 1, and Doe 2.

6.

The United States Marshal shall serve a copy of the Amended
Complaint (Docket 10-1), Summons, and this Order upon
defendants as directed by Abdulrazzak. All costs of service shall be
advanced by the United States.

7.

Defendants will serve and file an answer or responsive pleading to
the remaining claims on or before 21 days following the date of
service.

8.

Abdulrazzak will serve upon defendants, or, if appearance has been
entered by counsel, upon their counsel, a copy of every further
pleading or other document submitted for consideration by the
court. He will include with the original paper to be filed with the
clerk of court a certificate stating the date and that a true and
correct copy of any document was mailed to defendants or their
counsel.

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9.

Abdulrazzak will keep the court informed of his current address at
all times. All parties are bound by the Federal Rules of Civil
Procedure and by the court’s Local Rules while this case is pending.

Dated July 14, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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