Shaw v. Kaemingk et al

Filing 237

ORDER granting 236 Motion to Seal Documents. Signed by U.S. District Judge Karen E. Schreier on 3/9/2020. (Mailed to Shaw via US Postal Service) (JLS)

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 GRANTING MOTION TO FILE
DOCUMENTS UNDER SEAL FOR IN
CAMERA INSPECTION

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

WALTER, CONTRACTED DOC
ATTORNEY; INDIVIDUAL AND
OFFICIAL CAPACITY; AND MARK
BIDNEY, CONTRACTED DOC
PARALEGAL; INDIVIDUAL AND
OFFICIAL CAPACITY;
Defendants.
Defendants, Steve Baker, Derrik Bieber, Jennifer Drieske, Tammi
Mertens-Jones, Linda Miller-Hunhoff, Jordan Storevik, Elizabeth Effling, Darin
Young, Robert Dooley, Jennifer Stanwick-Klimek, and Dennis Kaemingk, move
to seal copies of the magazines at issue in plaintiff’s lawsuit. Docket 226.
Defendants state that the magazines were rejected and not delivered to plaintiff
because they were found to contain “nudity” or “sexually explicit” content, in
violation of South Dakota Department of Corrections policy. Id. at 1.
Defendants assert that if the magazines themselves are attached as
exhibits to the affidavits filed with the court and served on plaintiff, plaintiff
will have a copy of the very materials that defendants refuse to provide him. Id.
Courts have found that inmates may not obtain materials through litigation
that had been denied by their penological institution. See Roberts v. Apker, 570
F. App’x 646, 649-50 (9th Cir. 2017); Order Granting Motion to Seal, Maday v.
Dooley, 4:17-cv-04168-KES (D.S.D. Nov. 8, 2018); Order Granting Motion to
File Documents Under Seal for In Camera Inspection, Hughbanks v. Dooley,
4:10-cv-4064-KES (D.S.D. May 3, 2011); Lindell v. McCaughtry, No. 01-C-209C, 2003 WL 23198120 at *1 (W.D. Wis. July 21, 2003). Here, defendants
provided plaintiff with a summary of the denied materials along with specific

images and photos that led defendants to conclude that the material contained
“nudity” and was “sexually explicit.” “While [plaintiff] may not be able to view
the [materials] he was denied, he has sufficient information to challenge
defendants’ reasons for denying him the [materials].” Order Granting
Defendants’ Motion to File Documents Under Seal for In Camera Inspection at
4, Hughbanks, 4:10-cv-4064-KES.
Good cause appearing, it is
ORDERED that defendants’ motion to file documents under seal for in
camera inspection (Docket 236) is granted.
DATED March 9, 2020.
BY THE COURT:

/s/ Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE