Shaw v. Kaemingk et al

Filing 113

ORDER denying 6 Motion for Order. Signed by U.S. District Judge Karen E. Schreier on 9/18/18. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES ELMER SHAW,

4:17-CV-04116-KES

Plaintiff,
vs.
DENNIS KAEMINGK, SECRETARY OF
CORRECTIONS; INDIVIDUAL AND
OFFICIAL CAPACITY; ROBERT
DOOLEY, DIRECTOR OF PRISON
OPERATIONS; INDIVIDUAL AND
OFFICIAL CAPACITY; DARIN YOUNG,
WARDEN; INDIVIDUAL AND OFFICIAL
CAPACITY; JENNIFER DRIESKE,
DEPUTY WARDEN; INDIVIDUAL AND
OFFICIAL CAPACITY; JENNIFER
STANWICK-KLEMIK, DEPUTY
WARDEN; INDIVIDUAL AND OFFICIAL
CAPACITY; TROY PONTO, ASSOCIATE
WARDEN; INDIVIDUAL AND OFFICIAL
CAPACITY; ARTHOR ALCOCK,
ASSOCIATE WARDEN; INDIVIDUAL
AND OFFICIAL CAPACITY; DAVID
LENTSCH, UNIT MANAGER;
INDIVIDUAL AND OFFICIAL CAPACITY;
DERRICK BIEBER, UNIT MANAGER;
INDIVIDUAL AND OFFICIAL CAPACITY;
AL MADSON, UNIT MANAGER;
INDIVIDUAL AND OFFICIAL CAPACITY;
JOSH KLEMIK, UNIT MANAGER;
INDIVIDUAL AND OFFICIAL CAPACITY;
TAMMI MERTINS-JONES, CULTURAL
ACTIVITIES COORDINATOR;
INDIVIDUAL AND OFFICIAL CAPACITY;
ELIZABETH VITETTA, UNIT
COORDINATOR; INDIVIDUAL AND
OFFICIAL CAPACITY; BRITINEY

ORDER

ULMER, UNIT COORDINATOR;
INDIVIDUAL AND OFFICIAL CAPACITY;
MELISSA MATURAN, ADMINISTRATIVE
REMEDY COORDINATOR; INDIVIDUAL
AND OFFICIAL CAPACITY; STEVE
BAKER, MAJOR; INDIVIDUAL AND
OFFICIAL CAPACITY; LINDA MILLERHUNHOFF, MAIL SUPERVISOR;
INDIVIDUAL AND OFFICIAL CAPACITY;
SHARRON REIMANN, MAILROOM;
INDIVIDUAL AND OFFICIAL CAPACITY;
JORDAN STOREVIK, MAILROOM;
INDIVIDUAL AND OFFICIAL CAPACITY;
NICK ANDERSON, CORRECTIONAL
OFFICER, SDSP; PRESTON PERRETT,
CORRECTIONAL OFFICER;
INDIVIDUAL AND OFFICIAL CAPACITY;
JUDY JACOBS, CORRECTIONAL
OFFICER; INDIVIDUAL AND OFFICIAL
CAPACITY; LISA FRASIER,
CORRECTIONAL OFFICER;
INDIVIDUAL AND OFFICIAL CAPACITY;
NICK REDDMAN, TEACHER;
INDIVIDUAL AND OFFICIAL CAPACITY;
DR. MARY CARPENTER, MD;
INDIVIDUAL AND OFFICIAL CAPACITY;
ER REGIER, MD; INDIVIDUAL AND
OFFICIAL CAPACITY; BRAD ADAMS,
PA-C; INDIVIDUAL AND OFFICIAL
CAPACITY; JESSICA SCHREURS, RN;
INDIVIDUAL AND OFFICIAL CAPACITY;
HEATHER BOWERS, RN; INDIVIDUAL
AND OFFICIAL CAPACITY; UNKNOWN
DEPARTMENT OF
HEALTH/CORRECTIONAL HEALTH
SERVICE (DOH/CHS) EMPLOYEES,
INDIVIDUAL AND OFFICIAL
CAPACITIES; CBM CORRECTIONAL
FOOD SERVICES, INDIVIDUAL AND
OFFICIAL CAPACITIES; JOHN
TWEIRWEILLER, CBM DISTRICT
MANAGER; INDIVIDUAL AND OFFICIAL
CAPACITY; UNKNOWN CBM
EMPLOYEES, INDIVIDUAL AND
OFFICIAL CAPACITIES; DELMER
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WALTER, CONTRACTED DOC
ATTORNEY; INDIVIDUAL AND
OFFICIAL CAPACITY; AND MARK
BIDNEY, CONTRACTED DOC
PARALEGAL; INDIVIDUAL AND
OFFICIAL CAPACITY;
Defendants.

Shaw is an inmate at the South Dakota State Penitentiary. He filed a pro
se civil rights lawsuit under 42 U.S.C. § 1983. Docket 1. Shaw now moves the
court to “order the defendants to provide computer access and printing, as well
as copies and forms as needed, paper pens and or pencils without charge to
plaintiff, or in the alternative, to assess the fees required by the defendants as
costs at the conclusion of this action[.]” Docket 6 at 3. Defendants did not
respond to Shaw’s motion.
In support of his motion, Shaw explains that inmates are required to pay
25 cents per printed or copied page. Id. at 1. As a result, Shaw alleges that pro
se litigants are forced to file handwritten pleadings because they cannot afford
to print from the computers. Id. at 2. Shaw claims that this prevents pro se
litigants from complying with D.S.D. LR 83.4, which requires typewritten
filings. Id. at 3. Shaw also claims that pro se litigants are further prejudiced
“both by the difficulty the court has in reading lengthy handwritten documents
and by the impossibility of OCR scanning.” Id. at 4.
Because Shaw is an indigent prisoner without the ready ability to make
copies and defendants can receive their filings through CM/ECF, the court will

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not require Shaw to send defendants a copy of his pleadings. This will reduce
the number of copies Shaw is required to make. And because Shaw’s
handwriting is legible, easy to read and scan, the court will continue to accept
handwritten filings.
Fed. R. Civ. P. 54(d) addresses an award of costs to the prevailing party
in whose favor judgment is entered. The rule directs that “[u]nless a federal
statute, these rules, or a court order provides otherwise, costs—other than
attorney’s fees—shall be allowed to the prevailing party.” Fed. R. Civ. P.
54(d)(1). In assessing costs, the court is limited to those items listed in
28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437,
445 (1987) (absent explicit statutory or contractual authorization federal courts
are bound by the limitations set out in 28 U.S.C. § 1920). The Supreme Court
explained,
Section 1920 enumerates expenses that a federal court may tax as
a cost under the discretionary authority found in Rule 54(d). It is
phrased permissively because Rule 54(d) generally grants a federal
court discretion to refuse to tax costs in favor of the prevailing party.
Id. at 441–42. Section 1920 reads,
A judge or clerk of any court of the United States may tax as costs
the following:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts
necessarily obtained for use in the case;
(3) Fees and disbursement for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in
the case;
(5) Docket fees under section 1923 of this title . . . .

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28 U.S.C. § 1920(1)-(5). If Shaw becomes the prevailing party, the court will
reconsider his motion for costs. Unless and until Shaw becomes the prevailing
party, however, his motions for costs are premature.
Thus, it is ORDERED that
1. Shaw’s motion for order (Docket 6) is denied.
2. Shaw may satisfy his obligation to serve copies of pleadings upon
defendants by sending a letter to defendants’ counsel identifying all
documents he files with the clerk of court. Defense counsel will
receive notice from the clerk of court when those documents have
been filed.
3. Shaw may, when necessary, file handwritten documents.
Dated September 18, 2018.
BY THE COURT:

/s/ Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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