Shaw v. Kaemingk et al
ORDER denying 141 Motion for TRO; denying 141 Motion for Preliminary Injunction. Signed by U.S. District Judge Karen E. Schreier on 12/2/19. Mailed to James Shaw via US Postal Service. (JLS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
JAMES ELMER SHAW,
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
WARDEN; INDIVIDUAL AND OFFICIAL
CAPACITY; DERRICK BIEBER, UNIT
MANAGER; INDIVIDUAL AND OFFICIAL
CAPACITY; TAMMI MERTINS-JONES,
COORDINATOR; INDIVIDUAL AND
OFFICIAL CAPACITY; ELIZABETH
EFFLING, UNIT COORDINATOR;
INDIVIDUAL AND OFFICIAL CAPACITY;
STEVE BAKER, MAJOR; INDIVIDUAL
AND OFFICIAL CAPACITY; LINDA
SUPERVISOR; INDIVIDUAL AND
OFFICIAL CAPACITY; SHARRON
REIMANN, MAILROOM; INDIVIDUAL
AND OFFICIAL CAPACITY; JORDAN
STOREVIK, MAILROOM; INDIVIDUAL
AND OFFICIAL CAPACITY; CBM
CORRECTIONAL FOOD SERVICES,
INDIVIDUAL AND OFFICIAL
CAPACITIES; JOHN TWEIRWEILLER,
ORDER DENYING PLAINTIFF’S
MOTION FOR A PRELMINARY
INJUNCTION AND TEMPORARY
CBM DISTRICT MANAGER;
INDIVIDUAL AND OFFICIAL CAPACITY;
UNKNOWN CBM EMPLOYEES,
INDIVIDUAL AND OFFICIAL
Plaintiff, James Elmer Shaw, is an inmate at the South Dakota State
Penitentiary (SDSP) in Sioux Falls. Shaw filed a pro se civil rights lawsuit
under 42 U.S.C. § 1983. Docket 1. He moves for a temporary restraining order
and preliminary injunction. Docket 141. Defendants, CBM, Tweirweiller, and
unknown CBM Food Service employees filed a response to Shaw’s motion.
Docket 169. All other defendants joined CBM’s response. Docket 170. Shaw
filed a reply to defendants’ response. Docket 173.
Shaw requests that the court issue a temporary restraining order or a
preliminary injunction. Docket 141. Shaw asserts that these should be issued
to require the defendants to allow:
(1) an expert Endocrinologist to determine if Plaintiff’s rescently
[sic] diagnosed diabetes is due to the denial of foods that would
allow him to adhere to his religious diet commandments; (2) an
unbiased dietitian to determine if the foods served by Defendants
is in compliance with Plaintiff[’s] religious diet commandments;
and (3) foods in compliance with Plaintiff’s religious diet until the
final orders and appeals of this case which are necessary and
allowed for by law are concluded.
Id. Shaw practices the religion of Dorcha Cosán. Docket 141-1 at 1-2. He
believes he can attain “Godhood, connect with the source of his spiritual path,
and perform ‘true Magick” if he follows the diet. Id. at 2. The “ ‘Before
Christ’ ” diet includes eating “all natural, farm fresh, organic fresh and
vegetables (they must be consumed raw, boiled, stewed or juiced) and grass
fed, no-growth-hormone meats.” Id. 1 Shaw claims he has stopped eating for
days to prove his loyalty to his “geise.” Id. Shaw has also stopped taking his
insulin shots and believes he will die from his diabetes if he is not supplied
with his religious diet. See Docket 173 at 5-6.
Motion for a Preliminary Injunction
Shaw filed a motion for a preliminary injunction and temporary
restraining order. Docket 141. “A preliminary injunction is an extraordinary
remedy.” Roudachevski v. All–American Care Ctrs., Inc., 648 F.3d 701, 705 (8th
Cir. 2011) (citation omitted); see also Hughbanks v. Dooley, 788 F. Supp. 2d
988, 992 (D.S.D. 2011). “The burden of proving that a preliminary injunction
should be issued rests entirely with the movant.” Goff v. Harper, 60 F.3d 518,
520 (8th Cir. 1995).
“Whether a preliminary injunction should issue involves consideration of
(1) the threat of irreparable harm to the movant; (2) the state of the balance
between this harm and the injury that granting the injunction will inflict on
other parties litigant; (3) the probability that movant will succeed on the merits;
and (4) the public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109,
113 (8th Cir. 1981) (en banc). The Eighth Circuit held that “ ‘the failure to show
irreparable harm is, by itself, a sufficient ground upon which to deny a
This does not include the extent of the “ ‘Before Christ’ ” diet. The court
points to Docket 141-1 at 2 for the full recitation.
preliminary injunction.’ ” Adam–Mellang v. Apartment Search, Inc., 96 F.3d 297,
299 (8th Cir. 1996) (quoting Gelco Corp. v. Coniston Partners, 811 F.2d 414,
418 (8th Cir. 1987)). “To demonstrate irreparable harm, a plaintiff must show
that the harm is ‘certain, great and of such imminence that there is a clear and
present need for equitable relief.’ ” Gard v. Dooley, 2014 WL 4243586, at *1
(D.S.D. Aug. 26, 2014) (quoting Packard Elevator v. Interstate Commerce
Comm’n, 782 F.2d 112, 115 (8th Cir. 1986)). A “ ‘plaintiff must make a showing
of actual, substantial harm resulting from the alleged infringement.’ ” Gard,
2014 4243586, at *1; (quoting Travelers Express Co. v. Transaction Tracking
Technologies, Inc., 305 F. Supp.2d 1090, 1095 (D. Minn. 2003)).
Moreover, “in the prison context, a request for injunctive relief must
always be viewed with great caution because ‘judicial restraint is especially
called for in dealing with the complex and intractable problems of prison
administration.’ ” Goff, 60 F.3d at 520 (quoting Rogers v. Scurr, 676 F.2d 1211,
1214 (8th Cir. 1982)). And for an injunction to issue “a right must be violated”
and “the court must determine” whether “a cognizable danger of future
violation exists and that danger must be more than a mere possibility.” Goff, 60
F.3d at 520 (quoting Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982)).
In Gard, the plaintiff moved for a preliminary injunction because the
defendants refused: a diet tailored to his medical needs, prescription eye
glasses, and diabetic sockets. Gard, 2014 4243586, at *1. Gard’s showing of
irreparable harm was stating that if his diabetes went “ ‘unchecked,’ he could
suffer ‘organ failure as well as loss of limbs, as well as the possibility of a
fractured leg which could cause pain and loss of mobility for the rest of [his]
life.’ ” Id. The court held that Gard failed to establish irreparable harm because
the danger he described was not certain. Id. at 2. (The court also noted that
Gard did not make personal efforts to comply with the recommended diet.)
Gard’s harm was speculative and “ ‘[p]ossible or speculative harm is not
enough [to support a preliminary injunction].’ ” Id.; (quoting Northland Ins.
Companies v. Blaylock, 115 F.Supp.2d 1108, 1116 (D. Minn. 2000)).
Shaw’s showing of irreparable harm is similar to that of Gard’s.
Shaw alleges that his diabetes is “probably due to malnutrition.” Docket 141-1
at 4; Docket 173 at 5. Shaw has stopped taking the insulin shots to be able to
adhere to his religion and because he does not like how the insulin makes him
feel when he is not eating. Docket 141-1 at 5-6; Docket 173 at 1-2.
He argues that he will suffer irreparable harm because he is “being
denied a clearly established constitutional right (Shaw believes he has a
constitutional right to be provided with a nutritional, adequate diet that allows
him to adhere to his religion).” Shaw
believes he will die if his religious diet is not provided to him by
CBM and DOC Defendants. (See Doc. 169.13), which states that
complications from diabetes include peripheral neuropathy,
delayed healing, high blood pressure, damage to the eyes that
impacts visual acuity, heart disease, kidney disease and potential
for stroke. Id. In addition, Plaintiff has been hospitalized after not
eating for days. See Doc. 169-14. 2
Docket 169-14 states that the post hospitalization follow-up was for chest
pain. See Docket 169-14 at 1. Docket 169-13 addresses that Shaw is refusing
insulin and that he eats one meal per day. See Docket 169-13 at 1. Shaw
agreed to take another medication “Lantus” for his diabetes. Id.
Docket 173 at 6. (citations in original). Shaw’s belief that he will die if his
religious diet is not provided to him is not certain, rather it is speculative. Like
in Gard, Shaw believes that his death will occur, but Shaw’s own statements
show that he has refused to take insulin shots that would aid his diabetes.
Possible or speculative harm is not enough to support a preliminary injunction
and because Shaw has failed to show irreparable harm, his motion for a
preliminary injunction is denied. See Adam–Mellang, 96 F.3d at 299.
Motion for a Temporary Restraining Order
Shaw also moves for a temporary restraining order. See Docket 141. Under
the Federal Rules of Civil Procedure, a court may issue a temporary restraining
order if the party states, “specific facts . . . [that] clearly show that immediate
and irreparable injury, loss, or damage will result to the movant before the
adverse party can be heard in opposition[.]” Fed. R. Civ. P. 65(b)(1)(A). This
court denies Shaw’s motion for a temporary restraining order for the same
reason it has denied the motion for preliminary injunction, because he failed to
show irreparable injury.
Thus, it is ORDERED
1. That Shaw’ s motion for preliminary injunction and temporary
restraining order (Docket 141) is denied.
Dated December 2, 2019.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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