Shaw v. Kaemingk et al

Filing 7

ORDER granting 3 Motion for Leave to Proceed in forma pauperis; Dismissing Complaint in Part and Directing Service. Signed by U.S. District Judge Karen E. Schreier on 11/28/2017. (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, Sued in his Official and
Individual Capacities;
ROBERT DOOLEY, Director of Prison
Operations, Sued in his Official and
Individual Capacities;
DARIN YOUNG, Warden, Sued in his
Official and Individual Capacities;
JENNIFER DRIESKE, Deputy Warden,
Sued in her Official and Individual
Capacities;
JENNIFER STANWICK-KLEMIK, Deputy
Warden, Sued in her Official and
Individual Capacities;
TROY PONTO, Associate Warden, Sued
in his Official and Individual Capacities;
ARTHOR ALCOCK, Associate Warden,
Sued in his Official and Individual
Capacities;
DAVID LENTSCH, Unit Manager, Sued
in his Official and Individual Capacities;
DERRICK BIEBER, Unit Manager, Sued
in his Official and Individual Capacities;
AL MADSON, Unit Manager, Sued in
his Official and Individual Capacities;
JOSH KEMINK Unit Manager, Sued in
his Official and Individual Capacities;
TAMMI MERTINS-JONES, Cultural
Activities Coordinator, Sued in her
Official and Individual Capacities;
ELIZABETH VITETTA, Unit
Coordinator, Sued in her Official and
Individual Capacities;
BRITINEY ULMER, Unit Coordinator,
Sued in her Official and Individual

ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS,
DISMISSING COMPLAINT IN PART
AND DIRECTING SERVICE

Capacities;
MELISSA MATURAN, Administrative
Remedy Coordinator, Sued in her
Official and Individual Capacities;
STEVE BAKER, Major, Sued in his
Official and Individual Capacity;
LINDA MILLER-HUNHOFF, Mail
Supervisor, Sued in her Official and
Individual Capacity;
SHARRON KEIMAN, Mailroom, Sued in
her Official and Individual Capacity;
JORDAN STOREVIK, Mailroom, Sued in
his Official and Individual Capacity;
DEREK ANDERSON, Correctional
Officer, Sued in his Official and
Individual Capacity;
PRESTON PERRETT, Correctional
Officer, Sued in his Official and
Individual Capacity;
JUDY PLOOSTER-JACOBS,
Correctional Officer, Sued in her Official
and Individual Capacity;
LISA FRASIER, Correctional Officer,
Sued in her Official and Individual
Capacity;
NICK REDDMAN, Teacher, Sued in his
Official and Individual Capacity;
DR. MARY CARPENTER, MD, Sued in
her Official and Individual Capacity;
ER REGIER, MD, Sued in his Official
and Individual Capacity;
BRAD ADAMS, PA-C; Sued in his
Official and Individual Capacity;
JESSICA SCHREURS, RN; Sued in her
Official and Individual Capacity;
HEATHER BOWERS, RN; Sued in her
Official and Individual Capacity;
UNKNOWN DEPARTMENT OF
HEALTH/CORRECTIONAL HEALTH
SERVICE (DOH/CHS) EMPLOYEES,
Sued in their Official and Individual
Capacity;
YANKTON MEDICAL CLINICAL, P.C.,
Sued in its Official and Individual
Capacity;
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BRENT ADAMS, MD; Sued in his
Official and Individual Capacity;
CBM CORRECTIONAL FOOD
SERVICES, Sued in its Official and
Individual Capacity;
JOHN TWEIRWEILLER, CBM District
Manager, Sued in his Official and
Individual Capacity;
UNKNOWN CBM EMPLOYEES, Sued in
their Official and Individual Capacity;
DELMER WALTER, Contracted DOC
Attorney, Sued in his Official and
Individual Capacity;
CATHERINE SCHLIMGEN, Contracted
DOC Attorney, Sued in her Official and
Individual Capacity;
MARK BIDNEY, Contracted DOC
Paralegal. Sued in his Official and
Individual Capacity; AND
GLOBAL TEL*LINK, GTL; Sued in its
Official and Individual Capacity;
Defendants.
INTRODUCTION
Plaintiff, James Elmer Shaw, is an inmate at Mike Durfee State Prison
(MDSP) in Springfield, South Dakota. Shaw filed a pro se civil rights lawsuit
under 42 U.S.C. ' 1983 and requested leave to proceed in forma pauperis
under 28 U.S.C. ' 1915. Docket 1; Docket 3. For the following reasons, the
court grants Shaw’s motion to proceed in forma pauperis, dismisses Shaw’s
complaint in part, and directs service.
FACTS
Shaw was housed as an inmate at the South Dakota State Penitentiary
(SDSP) until he was transferred to the MDSP in April 2017. Shaw alleges

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several violations of his civil rights occurring at both SDSP and MDSP.
Docket 1 ¶ 44. In part, Shaw’s claims concern his ability to practice his
religion and defendants’ alleged failures to recognize and accommodate Shaw’s
practice. Docket 1. Shaw also makes claims involving his prisoner trust
account, medical accommodations, prison policy, and access to the courts. Id.
Shaw also claims he suffered retaliation before his transfer for litigating, filing
grievances, and attempting to get his religion recognized by one or more
defendants. Id. ¶ 45.
Shaw contends that he has exhausted all available administrative
remedies, except when he was denied access to the grievance process. Id. ¶ 50.
Before Shaw’s transfer, he was deprived of most of his legal papers by one or
more of the defendants. Id. ¶ 47.
The facts as alleged in the complaint are:
Religious Land Use and Institutionalized Persons Act (RLUIPA)
Shaw identifies his religion as Dorcha Cosàn. Id. ¶ 57. Dorcha Cosàn
requires Shaw to strictly adhere to The Nine Laws of Dorcha Cosàn in order
“to keep his geise and for Shaw to reach his ultimate goal of attaining
Godhood.” Id. ¶ 53. Shaw’s beliefs are sincerely held. Id. ¶ 55.
Kaemingk, Dooley, Young, Drieske, Stanwick-Klemik, and MertensJones refused to recognize Dorcha Cosàn and denied Shaw’s requests for
accommodations. Id. ¶ 55. These defendants created or accepted the
“operation memorandums, policies, procedures, rules and regulations, both
written and unwritten” that burdened Shaw’s practice of Dorcha Cosàn. Id.
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¶ 62. They required Shaw to prove that his requests were mandated by Dorcha
Cosàn and then they waited four months before they considered his requests
without providing an answer to Shaw. Id.
Kaemingk, Dooley, Young, Drieske, Stanwick-Klemik, and MertensJones allowed Shaw’s religion to be taken away from him for minor rule
infractions. Id. They forced Shaw to wait one year to celebrate a single
religious holiday when Shaw was mandated to celebrate eight Sabbats and
thirteen Esbats throughout the year. Id. And these defendants only allowed
Shaw one day a week for group worship even though Shaw was mandated to
worship three times a week plus holidays. Id. And these defendants forced
Shaw to allow at least two sex offenders and non-members to attend his
religious ceremonies and rituals in violation of Dorcha Cosàn. Id.
These defendants only allowed Shaw two religious books when Dorcha
Cosàn mandates that he have access to thousands at any given time. Id. And
these defendants approved mainstream religions’ requests and denied the
same requests for Shaw. Id.
Shaw stopped Dooley, Young, Drieske, and Bieber in front of his cell to
explain that his religion requests are mandated by his religion. Id. ¶ 63. Shaw
stated his intent to sue. Id. And Drieske replied, “ ‘[G]o ahead and sue us, I’ll
claim all your requests are a security threat.’ ” Id. ¶ 64. Dooley and Young
failed to manage Drieske and failed to remedy this wrong. Id. ¶ 65.
When Shaw arrived at MDSP, he spoke with Stanwick-Klemik. Id. ¶ 66.
Stanwick-Klemik told Shaw, “ ‘Dorcha Cosàn will not be approved as a
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recognized religion’ and Shaw was told, ‘you should consider signing up for
another religious service[] that [is] already established here at Mike Durfee.’ ”
Id. Signing up for another religious service is an ethical violation of Shaw’s
obligations to Dorcha Cosàn. Id.
Dooley, Young, Drieske, and Stanwick-Klemik denied several of Shaw’s
requests. Id. ¶ 67. They denied Shaw the ability to take three ancestry DNA
tests “to determine his origins mandated by Shaw’s religion so that Shaw can
study the Gods and Goddesses of his ancestors.” Id. Shaw must spend time
researching ancestry and chart findings on a genogram, but Shaw was denied
the opportunity to do this research. Id.
Dooley, Young, Drieske, and Stanwick-Klemik denied Shaw “the ability
to keep his geise with the Goddesses Brid and Hera.” Id. And these defendants
denied Shaw a “Gleini na Droedh,” “Geise ring,” “ritual tools,” and “the first 85
texts and their companions of study.” Id. Drieske said Shaw “can not have any
of the artistic texts or text companions because they ‘might have nudity[.]’ ” Id.
And Drieske eliminated sixty-five of the first mandated text or companions
with no penological justification other than “a porn policy.” Id.
Dooley, Young, Drieske, and Stanwick-Klemik have denied Shaw the
ability to choose a specific order of accention, to be reborn, to seek guides and
helpers, to choose his Branch of Destiny, to acquire mandated texts and
companions and to take correspondence course. Id. They denied Shaw a
classroom setting to set up a computer, art work stations, and a library for
those practicing Dorcha Cosàn. Id. And these defendants denied Shaw a
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“Group Book of Shadows,” and “a personal Book of Shadows[.]” Id. The
“requests within Law I are of no cost to Defendants.” Id. And “[e]verything
needed for Shaw to adhere to Law I will be purchased by DC through approved
venders.” Id. ¶ 68.
Drieske, Stanwick-Klemik, Mertens-Jones, CBM, Unknown CBM
employees, and Tweirweiller denied Shaw the ability to follow his religious diet
requirements. Id. ¶ 69. And when Shaw inquired about the denial of special
diets for Dorcha Cosàn members, an unknown CBM employee stated, “ ‘if you
don’t like it don’t eat anymore.’ ” Id. ¶ 70. CBM served no food complaint with
his religious diet requirements. Id. ¶ 73. Shaw “believes he is defiling himself
by doing something that is completely forbidden by his religion.” Id. ¶ 71.
Drieske, Stanwick-Klemik, Mertens-Jones, CBM, Unknown CBM
employees, and Tweirweiller denied Shaw the ability to celebrate holy days
with “Ritual and Feast” as mandated by Law II of Dorcha Cosàn. Id. ¶ 74. And
Drieske denied Shaw’s requests for all other mandated aspects of Law II. Id. ¶
75.
Unknown CHS employees and Drieske denied Shaw all-natural remedies
to replace his currently prescribed pharmaceuticals. Id. ¶ 76. All-natural
remedies are necessary for Shaw to adhere to Law II of Dorcha Cosàn. Id.
Alcock, Lentsch, Bieber, and Klemik forced Shaw “to live and dine with
non-believers of [Dorcha Cosàn], other races, religions or people who live by a
different creed.” Id. ¶ 77. There is a “high probability of confrontation between

7

Shaw and his cell mates.” Id. ¶ 78. These defendants allow other religions,
races, and gangs to live together if requested. Id. ¶ 79.
Drieske and Stanwick-Klemik denied Shaw the ability to adhere to Law
III of Dorcha Cosàn. Id. ¶ 80. And Drieske, through Martens-Jones, told Shaw
to “switch to Buddha.” Id.
Drieske, Stanwick-Klemik, and Mertens-Jones denied Shaw the ability
to adhere to Law IV of Dorcha Cosàn by denying him “ritual and divination
tools mandated by Dorcha Cosàn.” Id. ¶ 81. These deprivations are “the
equivalent of taking a digit or limb from Shaw for each ritual tool denied.” Id.
¶82. Ritual tools are “partners and aids in Magick and can not be regulated as
being props that can be easily denied or discarded.” Id. ¶83. The ritual tools
are sacred and “are among the outer aspects of Wicca.” Id. ¶¶ 84-85.
Drieske and Stanwick-Klemik denied Shaw the ability to adhere to Laws
V and VI. Id. ¶ 87. Law VI that mandates Shaw “worship and celebrate the
‘Sun’ throughout the ‘Wheel of the Year’ (WOY) and Dorcha Cosàn’s Zodiac
system, by giving thanks, sending daily offerings, and having ‘outdoor-cookouts’ followed by ‘outdoor-ritual-and feast’ ceremonies on the day before or the
day of the Eight Sabbats.” Id. ¶ 88.
Drieske and Stanwick-Klemik denied Shaw the ability to adhere to all
aspects of Law VIII, which mandates Shaw “worship and celebrate the ‘Moon’
throughout the ‘Tree Calendar,’ by giving thanks, sending daily offerings, and
having ‘outdoor-cook-outs’ followed by ‘outdoor-ritual-feasts’ ceremonies on

8

the day before or day of the Thirteen Esbats.” Id. ¶ 89. And these defendants
denied Shaw the ability to adhere to Law IX. Id. ¶ 90.
Free Exercise
One or more defendants denied recognition of Dorcha Cosàn and have
placed substantial burden on Shaw’s observation of Dorcha Cosàn. Id. ¶ 92.
Kaemingk, Dooley, Young, Drieske, Stanwick, Mertens-Jones, Lentsch and
Bieber allow religious accommodations for other religions but deny the same
to Shaw. Id. ¶ 93. The denials forced Shaw to significantly modify his practice
and “render[ed] Shaw’s religious exercise effectively impractical.” Id. ¶¶ 93-95.
CBM, unknown CBM employees and Tweirweiller denied Shaw the diet
religiously mandated by Dorcha Cosàn. Id. ¶ 96. But these defendants allow
mainstream religions diets in accordance with their religious mandates. Id.
CBM denied Shaw the ability to receive care packs from friends and
family because he is an indigent inmate. Id. ¶ 97. GTL denied Shaw the ability
to receive music, books and games on a tablet because he is an indigent
inmate. Id. ¶ 98.
Reddman and Jacobs denied Shaw the ability to use the law computer
in the school at SDSP when trying to prepare this complaint and “typing his
DJS.” Id. ¶ 100. Reddman and Jacobs “labeled” this conduct a rule infraction.
Id. Shaw was never written up for a rule infraction but was sanctioned for this
conduct. Id. ¶ 103. Jacobs “stated, ‘My Christian Faith does not allow me to
let Shaw’s “Devil Worship Group” sue my employers.’ ” Id. ¶ 101. Dorcha
Cosàn does not believe in or worship the devil. Id.
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Shaw was banned from all computers to prevent him from preparing
this complaint. Id. ¶ 102. Reddman denied Shaw employment in the school
because Shaw is banned from all computers. Id. Shaw alleges that Fraiser
imposed these sanctions to prevent Shaw from preparing religious complaints
and project applications. But Frazier, Jacobs, and Reddman allow Christian,
Jewish, and Native American groups to prepare their complaints and project
applications on the law library computers. Id. ¶ 104.
Equal Protection
Every aspect of the Nine Laws of Dorcha Cosàn and requested
accommodation has been approved for similarly situated inmates and
mainstream religious groups. Id. ¶ 105. Defendants Kaemingk, Dooley, Young,
Drieske, Stanwick-Kemik, and Mertens-Jones approved requests for similarly
situated inmates and mainstream religious groups. Id. ¶ 106. Shaw received
different treatment. Id. ¶ 107.
Drieske, Stanwick-Klemik, and CBM allowed other religious groups to
buy and receive donations from outside approved venders, other than CBM,
for religious or cultural gatherings. Id. ¶ 108. But they deny the same to
Shaw. Id. Shaw can only purchase foods for religious gatherings and
celebrations through CBM. But CBM refused to allow Shaw to adhere to DC’s
strict dietary requirements. Id.
CBM provided Shaw celebratory meals. Id. ¶ 110 But these meals are
the same as the main line meals. Id. And CBM raised the prices for a meal

10

that is otherwise free. Id. CBM provided free special meals for mainstream
religions on religious holidays. Id. ¶ 111. But CBM denied the same to Shaw.
CBM, Tweirweiller, and unknown CBM employees falsely advertised that
their commissary products complied with Shaw’s religious requests and that
their commissary products were a particular name-brand, price, and quantity.
Id. ¶ 112. CBM employees replaced the name-brand products with cheaper,
generic, smaller quantity, non-compliant products without posting the
changes. Id. ¶ 113. And Shaw did not receive notice of the changes until the
order was delivered. Id. ¶ 114. CBM employees refused to reimburse Shaw. Id.
The price of food outside of prison has decreased for the past two years.
Id. ¶ 115. But in October 2016, CBM “raised their commissary prices on over
300 items by an average of 18% on food items alone.” Id. ¶ 116. CBM replaced
brand name items with cheaper, imitation, less quantity items. Id.
Kaemingk, Dooley, and unknown CBM Employees allowed other
religions to purchase foods, commissary, and religious items from vendors
other than CBM. Id. ¶ 117. But these defendants denied Shaw the same
option. Id. Shaw is a captive consumer. Id. ¶ 118.
CBM has a food contract. Id. ¶ 120. This contract allows CBM to force
Shaw to buy his commissary at CBM. Id. ¶ 121. And Shaw buys CBM
commissary “because of hunger.” Id.
CBM refused to provide Shaw with his religious dietary needs. Id. ¶ 112.
And CBM refused to carry commissary products that would allow Shaw to
adhere to his religion. Id.
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On December 21, 2016, Shaw canceled the Yule Sabbat feast and
celebration because CBM and Drieske refused to allow Shaw to order “all
natural” foods from Hy-Vee. Id. ¶¶ 124-26. Hy-Vee is an approved vender for
the DOC. Id. ¶ 126. Hy-Vee has catered Buddhist, Jewish, and Muslim group
meals. Id. ¶ 127. Drieske approved this differential treatment. Id. ¶ 128.
One or more defendants own stocks or shares in CBM. Id. ¶ 129. And
this motivates Kaemingk to allow CBM to create a monopoly to violate Shaw’s
constitutional rights. Id.
First Amendment Right to Receive Mail
Drieske, Baker, Miller-Hunhoff, Reimann, and Storvick rejected or
refused to deliver over 200 magazines that were mailed to Shaw based on
prison concerns. Id. ¶ 131. The rejected magazines are art magazines. Id.
¶ 132. And the magazines are “necessary reference materials for Shaw’s
religion . . . to develop [his] artistic-magickal mind [sic].” Id. These rejections
place a substantial burden on Shaw. Id. ¶ 133. Most of the rejections are
based on a single, small picture within an entire magazine. Id. ¶ 134. And
when the magazines are rejected, Shaw is indigent and unable to send the
rejected magazines out. Id. ¶ 135. Shaw has suffered over $1,000.00 in
monetary loss. Id.
Drieske and Baker rejected Shaw’s magazines. Id. ¶136. And the same
defendants rejected Shaw’s magazines again during the grievance process. Id.
Shaw alleges that Drieske stated, “ ‘they might have nudity in them.’ ” Id.
¶ 138.
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Due Process
Kaemingk, Dooley, and Young promulgated policies that deprived Shaw
of personal property and moneys. Id. ¶ 139. These policies did not provide
sufficient procedural safeguards to avoid “erroneous deprivations of Shaw’s
protected life, liberty or property interest[.]”Id. ¶140. The current policy
requires Shaw to “sign away his due process rights to receive money or buy
property or he is unable to purchase personal property or receive money from
friends or family.” Id. ¶ 143. The current policy allows for DOC officials to “lose
[sic], take or destroy Shaw’s personal property without any liability[.]”Id.
¶ 144. The current policy requires Shaw to “(1) sign the return inventory sheet
and forfeit his missing property or (2) refuse to sign the return inventory sheet
and lose all of plaintiff’s property.” Id. ¶ 145.
Shaw receives money from outside sources that are deposited into his
institutional account. Id. ¶ 139. And the current DOC policy allows for up to
95% of Shaw’s incoming money. Id. ¶ 141.
Some of Shaw’s incoming money was taken without any procedural due
process. Id. ¶ 139. On two occasions significant portions of his property were
missing. Id. ¶ 145. Defendants confiscated $140.00 out of his inmate account
without notifying Shaw or giving him an opportunity to state his objection to
the confiscation. Id. ¶ 147.
Shaw has not received a pre-deprivation hearing before his money was
confiscated. Id. ¶ 142. The current administrative remedy policy allowed UM
Bieber to decide both stages of the grievance process. Id. ¶ 146. This insured
13

that Shaw did not get his property back. Id. On October 31, 2016 at 1:30 p.m.,
there was a small claims hearing on I.T.V. against UM Bieber and Young.
Docket 1 ¶193.
Current DOC policy allows one or more defendants to take Shaw’s
incoming money and place it in a frozen account. Once in the frozen account,
the DOC holds it forever without Shaw’s permission, against Shaw’s will, and
without having power of attorney. Id. ¶ 148. The current policy allows the DOC
to earn interest off of Shaw’s incoming money and deprive him of that interest.
Id. ¶ 149.
The Americans with Disabilities Act
Shaw is disabled. Id. ¶ 153. He “has been diagnosed with an
osteochondroma of the right proximal fibula, has no ALL’s in his knees, needs
full knee replacements which he can not receive until he is at least 60 years of
age, wears metal knee braces, has low back pain due to his bottom three (3)
vertebrae having no fluid in them and has arthritis in his knees and lower
back.” Id. Shaw experiences “pain and suffering when caring for himself,
performing manual tasks such as walking, sitting or even standing too
long[.]”Id. ¶ 154. Shaw experiences restlessness, trouble sleeping, and
depression. Id. ¶ 155. Shaw’s knees pop out of their sockets causing more
permanent injury to his knees and lower back. Id. 157.
Dooley, Young, Ponto, Lentsch, Klemik, Dr. Regier, PA Adams, RN
Bowers, RN Schreurs, and unknown CHS Employees “refuse[d] to provide
Shaw with a medical order for a medical bunk (a handicap bed), [and] refused
14

to give Shaw a handicap accessible room when other handicap individuals
received these accommodations.” Id. ¶ 156. Shaw personally asked each of
these defendants for medical accommodations and was denied. Id. ¶ 158.
Shaw asked Dooley for help with his medical issues in the barracks but
Dooley refused to help. Id. ¶ 159. Shaw “later asked Dooley for a medical
bunk[.]” Id. ¶ 160. Dooley refused and “threatened to place Shaw back in the
barracks so Shaw could enjoy the heat.” Id. On both of these occasions, Shaw
showed Dooley the bruises on his knees. Id. ¶ 161.
Dr. Regier and PA Adams refuse to prescribe medication to relieve
Shaw’s pain. Id. ¶ 162. Shaw refused to eat and drink water for up to thirteen
days as an attempt to get a medical order for a handicap cell and medical
bunk. Id. ¶ 163. Shaw has made numerous sick calls. Id. These denials are
punishment by Dr. Regier and PA Adams for Shaw’s engagement in protected
activities such as filing grievances and a lawsuit challenging the conditions of
confinement. Id. ¶ 164.
Denial of Medical Care / Deliberate Indifference
Kaemingk, Dooley, Young, Bieber, Lentsch, Klemik, Carpenter, Dr.
Regier, PA Adams, Schreurs, Bowers, and Unknown CHS Employees “have
promulgated operations memorandums, policies, procedures, rules and
regulations, both written and unwritten, or have been accepted or used by one
or more defendants to declare medical treatments are ‘comfort care’ and not
necessary to deny Shaw medical care.” Id. ¶ 165. These policies allow medical
personal to delegate medical decisions to non-medical personal, such as unit
15

staff, to decide if Shaw can receive medical treatments to relieve Shaw’s pain.
Id. ¶ 166. DOC Unit Staff claim that Shaw must have a medical order from
CHS. Id. ¶ 167. This creates a “perpetual loop that the DOC and CHS send
Shaw back and forth claiming Shaw must get med orders from the other.” Id.
This “allows the DOC and CHS to deny Shaw medical treatment[.]”Id. ¶ 168.
Dooley and Dr. Carpenter sent outside doctors a list detailing what
procedures and treatments they can and cannot recommend for Shaw. Id.
¶ 169. This procedure insures that Shaw will not receive the “surgeries he
needs, medical shoes, and or pain medication[.]”Id. ¶170.
In June of 2017, Dr. Brent Adams saw Shaw at the Yankton Medical
Clinic. Id. ¶ 171. Dr. Adams informed Shaw of a gel injection for his knees that
could help relieve Shaw’s pain and suffering. But Dr. Adams said the DOC will
not pay for the injections and Dr. Adams was instructed not to prescribe the
injections. Id. ¶ 172. Dr. Adams told Shaw that Shaw is too poor to pay for
them himself. Id. Shaw believes that Dr. Adams “has an ethical obligation to
prescribe medications and or recommend treatments that will alleviate Shaw’s
pain and suffering regardless of the cost or DOH / CHS / DOC interference.”
Id. ¶ 173.
An unknown CHS defendant removed all of Shaw’s medical orders when
Shaw was placed in the SHU. Id. ¶ 177. Shaw claims he is “unable to wear his
medically necessary knee braces and medical shoes with his prescribed heel
wedges as well as his prescribed head of bed wedge that helps Shaw battle

16

severe acid reflux.” Id. ¶ 178. This causes Shaw extreme pain, suffering, and
torture. Id. ¶ 179.
Access to the Courts
Allock, Ponto, Bieber, Lentsch, Klemik, Vitetta, Maturan, and Ulmer
prevented Shaw from filing grievances about the conditions of his confinement
by denying him the grievances, refusing to take his grievances once completed,
not answering the grievances placed in a defendant’s box or under their door,
and retaliating against Shaw for trying to grieve the conditions of his
confinement by punishing Shaw. Id. ¶ 180.
Bieber is involved in both stages of the administrative remedies process.
Id. ¶ 181. Bieber lied to his superiors to prevent Shaw from challenging the
conditions of confinement. Id. Shaw told Ponto about Bieber’s conduct and
Ponto did nothing. Id. ¶ 182. Shaw told Young about Bieber’s conduct and
Young did nothing. Id. ¶ 183.
Shaw filed a grievance about his conditions of confinement. Id. ¶ 184.
Maturan denied Shaw’s administrative remedies for “exaggerated reasons to
prevent Shaw from getting his claim to court.” Id.
Vitetta and Bieber prevented Shaw from creating and mailing legal
papers by withholding necessary resources and materials. Id. ¶ 185. Vitetta
denied Shaw the ability to send legal mail. Id. ¶ 186. This prevented Shaw
from arguing key elements of his small claims case because he was unable to
send his response to Defendants Answer to opposing counsel Schlimglen. Id.
¶ 186. As a result, the judge would not allow Shaw to argue his due process
17

claim. Id. Shaw’s due process claim was not frivolous. Id. ¶ 187. Shaw told
Baker that Vitetta refused to allow Shaw to send legal mail and Baker did
nothing. Id. ¶ 192.
Shaw is banned from the law library. Id. ¶ 188. Attorney Delmar
“Sonny” Walter and paralegal Mark Binde’s “inadequacies hindered Shaw’s
efforts to proceed with a civil rights action claiming Plaintiff’s constitutional
due process rights were violated.” Id. Their insufficient legal assistance
resulted in one of Shaw’s complaints being dismissed “for failure to meet a
technical requirement that Shaw could not have known.” Id. ¶ 189. If Shaw
had access to the law library or if attorney Walter and Binde would have
helped Shaw prepare his complaint, Shaw would have won his claims. Id.
¶ 190. Walter and Binde refused to help Shaw. Id. ¶ 191.
On October 31, 2016, at 1:30 p.m., Shaw had a small claims court
hearing on I.T.V. against Bieber and Young. Docket 1 ¶ 193. Attorney
Schlimgen represented Bieber and Young. Id. During the hearing, Schlimgen
gave perjured testimony on two occasions to prevent Shaw from winning. Id.
¶ 194. Schlimgen testified that check no. 201009 was deposited in Shaw’s
institutional account and that it was not check no. 201295. Id. ¶ 195. This
was untrue and prevented Shaw from recovering his money. Id. ¶ 196.
Retaliation in Violation of the First and Fourteenth Amendments
Shaw filed numerous grievances and a § 1983 action against Anderson
in October of 2016. Id. ¶ 197. Then Anderson caused Shaw’s cell to be
searched. Id. Shaw’s personal property and legal papers were taken. Id. ¶ 198.
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Anderson also took the table out of Shaw’s cell to prevent Shaw from filing
grievances and litigating. Id. ¶ 199. Shaw is now the only inmate in East Hall
without a table in his cell. Id. ¶ 200.
Bieber denied the return of Shaw’s legal work and personal property. Id.
¶ 201. And Bieber prevented Shaw from using the grievance process by
involving himself in both stages of the grievance process and giving false
information to his superiors. Id. Bieber did this in retaliation for filing
grievances and litigating against Bieber. Id. Shaw confronted Bieber and
Bieber said, “ ‘ Prove it.’ ” Id. ¶ 202.
On September 8, 2016, Bieber told Shaw that “since he likes to file
grievances he was being denied access to the law library.” Id. ¶ 203. Bieber
also told Shaw “his officers could write him up for everything and his
punishment would be no library, no computers, no legal work, and no
religious services.” Id. ¶ 204. Bieber said, “ ‘We can both go out of our way to
cause problems.’ ” Id. ¶ 205.
In April of 2016, Bieber, in retaliation for Shaw’s grievances and lawsuit
against him, threw thirty-one project applications in the trash that Shaw had
filled out for religious accommodations. Id. ¶ 206. Shaw was forced to wait an
additional three months to turn in his project applications. Id. ¶ 207.
Bieber denied Shaw medical orders and treatments because Shaw filed
grievances and lawsuit against him. Id. ¶ 208. This denial caused Shaw pain
and suffering. Id. ¶ 209. Bieber placed mentally ill inmates and inmates of

19

rival gang members in a cell with Shaw to cause physical and mental harm to
Shaw. Id. ¶ 210.
Lentsch took Shaw’s handicap cell status away. Id. ¶ 211. Lentsch
placed Shaw in a three-man cell to punish Shaw for refusing a transfer and
filing grievances. Id. This placement caused Shaw extreme pain and suffering.
Id. ¶ 212. Shaw could not sit up in bed. Id. Getting in and out of a three-man
bunk bed was “an impossible task for a person with extreme low back pain
and a person with no ACL’s and extreme degenerative disease in his knees and
low back.” Id. Shaw was unable to use his head-of-bed wedge to elevate his
upper body to prevent him from throwing up acid and vomiting in his sleep
from acid reflux. Id. ¶ 213. If Shaw used his wedge, his head would be pressed
against the middle bunk. Id. ¶ 214. Shaw’s symptoms woke him up on several
occasions. Id. ¶ 215. Lentsch denied Shaw medical ice and a pillow to treat his
swollen bruised knees. Id. ¶ 216.
Lentsch knows Shaw cannot live with other races or gang members due
to his religion and knows Shaw could be assaulted. Id. ¶ 217. But Lentsch
forced Shaw to live with a black inmate. Id. When Shaw and the black inmate
told Lentsch there was going to be a fight if they were forced to live together,
Lentsch encouraged an assault by responding, “ ‘[D]o what you gotta do[.]’ ” Id.
¶ 218.
Lentsch took personal property and legal work from Shaw, because
Shaw attempted to file grievances and refused transfer from SDSP to MDSP.
Id. ¶ 219. Lentsch threatened additional retaliation if Shaw continued to file
20

grievances and law suits. Lentsch stated, “ ‘I can take more of your legal work
and your TV can jump off the locker box and break.’ ” Id. ¶ 220.
When Shaw was in the SHU for refusing transfer, Madson told Shaw
“ ‘I’ve been waiting a long time to punish you.’ ” Id. ¶ 221. Madson then
imposed an excessive sanction on Shaw. Id. The sanction consisted of ten days
in the SHU and six months loss of recreation, visits, phone, commissary and
loss of care packages. Id. Madson responded, “ ‘[B]et you won’t sue me
again.’ ” Id. ¶ 222. Shaw told Madson that retaliation is illegal. Madson
responded, “ ‘so sue me’ and then he laughed” Id. ¶ 223.
In September 2016, Jacobs informed Shaw that because she is a
Christian she could not ethically allow Shaw to sue her employer over his
Wiccan religion. Id. ¶ 224. Jacobs and Reddman removed Shaw and banned
him from the law library and law computers for engaging in a protected
activity. Id. ¶ 225. Shaw was not written up for any rule infractions. Id. ¶ 226.
Shaw was punished for preparing his complaint. Id.
On October 11, 2016, at 8:00 a.m., an inmate asked Jacobs, “ ‘Why was
Shaw banned from the law library,’ an[d] Jacobs responded, ‘someone saved
on the computer, I don’t know who so Shaw’s the fall guy since he is a
“Witch.” I don’t want him over here anymore.’ ” Id. ¶ 227.
In May of 2016, Perret retaliated against Shaw for filing grievances and
litigating against him. Id. ¶ 228. Shaw’s mentally ill cellmate told Perret that
Shaw refused to let him in the cell. Id. ¶ 229. Without investigating or asking
Shaw if the allegations were true, Perret placed Shaw in the SHU for a major
21

rule violation. Id. ¶ 230. Later that day, the mentally ill cellmate was placed in
“special needs” because he was hallucinating. Id. ¶ 231. Perret used this
incident to “rifle through” Shaw’s property for three days. Id. ¶ 232. Normally,
“pack-ups take less than an hour.” Id. Perret took legal documents from Shaw.
Id. ¶ 233. Shaw never received a DHO hearing and never pleaded guilty. Id. ¶
234. But Shaw was convicted of the major rule violation. Id. Shaw approached
Bieber about Perret. Id. ¶ 235. Bieber responded, “ ‘[P]rove it.’ ” Id.
Illegal Promulgation of DOC Rules, Policies and Operations
Memorandoms
Kaemingk, Dooley, Young, Drieske, Stanwick-Klemik, Mertens-Jones,
Carpenter, Unknown CHS employees, CBM, and GTL promulgated “both
written and unwritten, rules, regulations, policies and operations
memorandums . . . .” Id. ¶ 237. These defendants are operating under a policy
that was adopted illegally. Id. ¶ 238.
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
22

(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
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.” 28 U.S.C. § 1915A(b).
DISCUSSION
I. Motion to Proceed In Forma Pauperis
Under the Prison Litigation Reform Act (PLRA), a prisoner who Abrings a
civil action or files an appeal in forma pauperis . . . shall be required to pay
the full amount of a filing fee.@ 28 U.S.C. ' 1915(b)(1). The court may, however,
accept partial payment of the initial filing fee where appropriate. Therefore,
A >[w]hen an inmate seeks pauper status, the only issue is whether the inmate
pays the entire fee at the initiation of the proceedings or over a period of time
under an installment plan.= @ Henderson v. Norris, 129 F.3d 481, 483 (8th Cir.
1997) (quoting McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997)).
23

The initial partial filing fee that accompanies an installment plan is
calculated according to 28 U.S.C. ' 1915(b)(1), which requires a payment of 20
percent of the greater of: “(A) the average monthly deposits to the prisoner=s
account; or (B) the average monthly balance in the prisoner=s account for the
6-month period immediately preceding the filing of the complaint or notice of
appeal.”
Plaintiff has reported average monthly deposits to his prisoner trust
account of $0 and an average monthly balance of negative $185.81. Docket 5.
Based on this information, the court grants Shaw leave to proceed in forma
pauperis and waives the initial partial filing fee. See 28 U.S.C. § 1915(b)(4) (“In
no event shall a prisoner be prohibited from bringing a civil action . . . for the
reason that the prisoner has no assets and no means by which to pay the
initial partial filing fee.”).
In order to pay his filing fee, Shaw must Amake monthly payments of 20
percent of the preceding month=s income credited to the prisoner=s account.@
28 U.S.C. ' 1915(b)(2). The statute places the burden on the prisoner=s
institution to collect the additional monthly payments and forward them to the
court as follows:
After payment of the initial partial filing fee, the prisoner shall be
required to make monthly payments of 20 percent of the preceding
month=s income credited to the prisoner=s account. The agency
having custody of the prisoner shall forward payments from the
prisoner=s account to the clerk of the court each time the amount
in the account exceeds $10 until the filing fees are paid.
28 U.S.C. ' 1915(b)(2). The installments will be collected pursuant to this
procedure.
24

The clerk of the court will send a copy of this order to the appropriate
financial official at Shaw=s institution. Shaw remains responsible for the entire
filing fee, as long as he is a prisoner, even though the case is dismissed. See In
re Tyler, 110 F.3d 528, 529B30 (8th Cir. 1997).
II. Screening Pursuant to § 1915A
A. Count I : RLUIPA
In Count I, Shaw asserts Kaemingk, Dooley, Young, Drieske, StanwickKlemik, Allcock, Lentsch, Mertens-Jones, Bieber, CBM, Unknown CBM
employees, Tweirweiller, and Klemik have substantially burdened his right to
the free exercise of his religion in violation of RLUIPA. “RLUIPA protects ‘any
exercise of religion, whether or not compelled by, or central to, a system of
religious belief[.]’ ” Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) (quoting § 2000cc–
5(7)(A)). “[A] prisoner's request for an accommodation must be sincerely based
on a religious belief and not some other motivation,” and the prison policy
must substantially burden the prisoner’s exercise of religion. Id.
To establish a prima facie case under RLUIPA, a plaintiff must show “1)
that he engaged in a religious exercise, and 2) that the religious exercise was
substantially burdened.” Smith v. Allen, 502 F.3d 1255, 1276 (11th Cir. 2007)
(abrogated on other grounds by Sossamon v. Texas, 563 U.S. 277 (2011)); see
also 42 U.S.C. § 2000cc–1(a). If the plaintiff succeeds in making a prima facie
showing, the defendant bears the burden to prove that the challenged
regulation is the least restrictive means of furthering a compelling
governmental interest. Allen, 502 F.3d at 1276. If the plaintiff fails to put forth
25

a prima facie case the court need not inquire further. Midrash Sephardi, Inc. v.
Town of Surfside, 366 F.3d 1214, 1228 (11th Cir. 2004).
Shaw asserts that he practices Dorcha Cosàn. Docket 1 ¶ 57. Shaw
alleges these defendants substantially burdened his exercise of Dorcha Cosàn
in several ways: taking away his practice as punishment for rule infractions,
requiring him to wait one year to celebrate mandated holidays, allowing two sex
offenders and non-members to attend group worship, permitting only one day a
week for group worship, limiting Shaw to two religious texts, denying Shaw the
ability to complete his mandated curriculum, denying Shaw the ability to take
three Ancestry DNA tests and complete his genealogical research, denying or
confiscating Shaw’s various religious property, denying correspondence
courses, denying a classroom setting for computer and art stations, denying
certain religious texts, denying Shaw the ability to follow his religious diet
requirements, denying all-natural remedies needed to replace pharmaceuticals,
forcing Shaw to live and dine with non-members, and denying Shaw ritual
tools. Id. ¶¶ 62-90.
After reviewing Shaw’s complaint, the court concludes that Shaw’s
RLUIPA claim is sufficiently pleaded to survive initial review under 28 U.S.C.
§ 1915.
B. Claim II – Free Exercise Clause of the First and Fourteenth
Amendments
Shaw asserts that Dooley, Young, Drieske, Stanwick-Klemik, Jacobs,
Frasier, Reddman, CBM, Tweirweiller, unknown CBM Employees, and GTL
26

have substantially burdened his right to the free exercise of his religion in
violation of the First and Fourteenth Amendments.
In order to state a First Amendment claim, Shaw must allege facts
tending to show that prison officials have substantially burdened the free
exercise of his religion. Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th
Cir. 2008). Substantially burdening one's free exercise of religion means that
the regulation must significantly inhibit or constrain conduct or expression
that manifests some central tenet of a person's individual religious beliefs;
must meaningfully curtail a person's ability to express adherence to his or her
faith; or must deny a person reasonable opportunities to engage in those
activities that are fundamental to a person's religion. Murphy v. Mo. Dep't of
Corr., 372 F.3d 979, 988 (8th Cir. 2004) (quotation and alterations omitted).
The Court of Appeals for the Eighth Circuit observed in Weir v. Nix, 114 F.3d
817, 821 (8th Cir. 1997), that an inmate’s free exercise rights may be
substantially burdened when his “sole opportunity for group worship arises
under the guidance of someone whose beliefs are significantly different from his
own[.]” (citing SapaNajin v. Gunter, 857 F.2d 463, 464 (8th Cir. 1988)). Under
RLUIPA, prison officials may justify the burdensome regulation or decision if it
serves a compelling interest achieved by the least restrictive means. 42 U.S.C.
§ 2000cc-1(a). Under § 1983, prison officials may overcome Shaw’s free exercise
clause claim if the burden is reasonably related to a legitimate penological
interest under the balancing test in Turner v. Safley, 482 U.S. 78, 87 (1987).

27

There are several components to Shaw’s First Amendment free exercise
claim. First, he alleges that defendants refused to recognize his religion and
denied him accommodations the recognized religions received “rendering
Shaw’s religious exercise effectively impractical.” Docket 1 ¶¶ 92-96. Second,
Shaw alleges that defendants deny him receipt of religious materials from
family and friends because he is poor. Id. ¶¶ 97-98. Third, he seeks to have
access to the law computer in the school at SDSP. Id. ¶¶ 100-104. After
reviewing Shaw’s complaint, the court concludes that Shaw’s § 1983 free
exercise claim is sufficiently pleaded to survive initial review under 28 U.S.C. §
1915.
C. Claim III – Equal Protection Clause of Fourteenth Amendment
Shaw alleges that Kaemingk, Dooley, Young, Drieske, Stanwick-Klemik,
Mertens-Jones, CBM, Tweirweiller, and unknown CBM employees denied him
equal protection of the laws in violation of the Fourteenth Amendment.
In order to establish an equal protection claim, a prisoner must show
that he is treated differently from similarly situated inmates and that the
different treatment is based upon either a suspect classification or a
fundamental right. Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 815 (8th Cir.
2008). To assert an equal protection claim based on religion, an inmate must
show that he is “denied a reasonable opportunity to pursue [his] faith as
compared to inmates of other religions.” Runningbird v. Weber, 198 F.App’x.
576, 578 (8th Cir. 2006). “[P]rison officials may restrict the religious practices
of inmates only if such deprivation is necessary to further legitimate
28

penological interests.” Rouse v. Benson, 193 F.3d 936, 942 (8th Cir.
1999)[citations omitted]. Nevertheless, “in prison cases, courts will ordinarily
defer to the expert judgment of prison authorities, due to the difficulty of
running a prison and the commitment of the task to the responsibility of the
legislative and executive branches.” Id.
After reviewing Shaw’s complaint, the court concludes that Shaw’s equal
protection claim based on religion is sufficiently pleaded to survive initial
review under 28 U.S.C. § 1915.
D. Claim IV – First Amendment Right to Receive Mail
Shaw alleges that Drieske, Baker, Miller-Hunhoff, Reimann, and
Storvick denied Shaw his right to receive mail. In Turner, the Supreme Court
held that prison rules are constitutional if they are “reasonably related to
legitimate penological interests.” Turner, 482 U.S. at 98. The Court provided
four factors to determine whether the prison rule withstands scrutiny:
(1) whether there is a valid rational connection between the
regulation and the legitimate government interest it purports to
further; (2) whether the inmate has an alternative means of
exercising his constitutional right; (3) the impact that
accommodation of the inmate's right would have upon others,
including inmates as well as non-inmates; and (4) the absence of a
ready alternative to the regulation.
Thongvanh v. Thalacker, 17 F.3d 256, 259 (8th Cir. 1994). The Turner
standard applies to both incoming and outgoing mail. Id.
“While prisoners retain their constitutional rights, limitations may be
placed on the exercise of those rights because of the needs of the penal
system.” Kaden v. Slykhuis, 651 F.3d 966, 968 (8th Cir. 2011) (citing Turner,
29

482 U.S. at 84-85). “[P]rison officials may lawfully censor prison mail that is
detrimental to the security, good order and discipline of the institution.” Id.
(citing Thornburgh v. Abbott, 490 U.S. 401, 404 (1989)). To decide whether a
prison policy advances “a legitimate penological interest,” the court must
consider the four Turner factors above. Id. (quoting Turner, 482 U.S. at 89-90).
In Kaden, an inmate at SDSP alleged that the prison mailroom's
rejection of his magazine violated his rights under the First Amendment. The
complaint was dismissed by the district court under § 1915A. Id. at 968. The
Eighth Circuit Court of Appeals stated, “[I]f a valid prison regulation is applied
to particular mail items in such a way as to negate the legitimate penological
interest, the regulation may be unconstitutional as applied to those items.
Before censoring materials, prison authorities must review the content of each
particular item received.” Id. at 969 (citing Murphy v. Mo. Dep't of Corr., 372
F.3d 979, 986 (8th Cir. 2004)). The Eighth Circuit accepted Kaden's
allegations as true on appeal and found them “sufficient to plausibly state a
claim under § 1983.” Id. at 969. The Eighth Circuit pointed out that at the
“extremely early stage of the litigation” before defendants “were required to
answer the complaint,” there was “a reasonable inference that SDSP’s policy
was unconstitutionally applied to the censored publication.” Id. at 969.
The same is true here. Shaw alleges that Drieske, Baker, Miller-Hunhoff,
Reimann, and Storvick violated his rights under the First Amendment by
rejecting his magazines because they contained sexually explicit material.
Docket 1 ¶¶130-38. Shaw alleges that the magazine was not sexually explicit
30

and that the rejection was not procedurally sound. Id. Therefore, Shaw states
a claim against Drieske, Baker, Miller-Hunhoff, Reimann, and Storvick that is
sufficiently pleaded to survive initial review under 28 U.S.C. § 1915.
E. Claim V – Procedural Due Process
Shaw alleges that Kaemink, Dooley, and Young denied Shaw due
process of law. “The Fourteenth Amendment's Due Process Clause protects
persons against deprivations of life, liberty, or property; and those who seek to
invoke its procedural protection must establish that one of these interests is at
stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Inmates have a property
interest in money received from outside sources. Mahers v. Halford, 76 F.3d
951, 954 (8th Cir. 1996). “Although the inmates' private interest in their
personal funds is apparent, inmates are not entitled to complete control over
their money while in prison.” Mahers, 76 F.3d at 954.
Admittedly, prisoners do not shed all constitutional rights at the
prison gate, but [l]awful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights, a retraction
justified by the considerations underlying our penal system.
Sandin v. Conner, 515 U.S. 472, 485 (1995) (internal quotation marks and
citations omitted).
The United States Supreme Court has held that “an unauthorized
intentional deprivation of property by a state employee does not constitute a
violation of the procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is
available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). A meaningful post

31

deprivation remedy includes state common law remedies. Id. But whether Due
Process requires a pre deprivation hearing or instead only a post deprivation
remedy depends upon whether the deprivation was pursuant to an established
state procedure (i.e., a jail regulation) or instead was an unauthorized act by
the jailer. Walters v. Wolf, 660 F.3d 307, 313–14 (8th Cir. 2011). Shaw alleges
that he did not receive a pre deprivation hearing. Docket 1 ¶ 142. After
reviewing Shaw’s complaint, the court concludes that Shaw’s § 1983
deprivation of his personal property claim is sufficiently pleaded to survive
initial review under 28 U.S.C. § 1915.
F. Claim 6 – Title II of the Americans with Disabilities Act (ADA)
Shaw claims that Dooley, Young, Ponto, Lentscsh, Bieber, Klemik, Dr.
Regier, PA Adams, RN Bowers, RN Screurs, and unknown CHS Employees
violated his rights under the ADA by failing to make reasonable
accommodations for his knee conditions, low back conditions, acid reflux, and
depression. Docket 1 ¶¶ 153-64. “The ADA consists of three titles addressing
discrimination against the disabled in different contexts.” Gorman v. Bartch,
152 F.3d 907, 911 (8th Cir. 1998).
Title II of the ADA states that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity.” 42 U.S.C. § 12132; Mason
v. Corr. Med. Servs., Inc., 559 F.3d 880, 886 (8th Cir. 2009). In order to state a
claim under Title II of the ADA, Shaw must allege:
32

(1) that he is a qualified individual with a disability; (2) that he was
excluded from participation in or denied the benefits of the
[prison’s] services, programs, or activities, or was otherwise
subjected to discrimination by the [prison]; and (3) that such
exclusion, denial of benefits, or other discrimination was by reason
of his disability.
Baribeau v. City of Minneapolis, 596 F.3d 465, 484 (8th Cir. 2010).
Shaw alleges that he was subjected to discrimination when he was
denied a medical order for a medical bunk when other handicap individuals
received such accommodations. Docket 1 ¶¶ 153-64. Shaw alleges that Dr.
Regier’s and PA Adams’s denial of a handicap cell, medications and treatments
are punishment for Shaw engaging in a protected activity. Id. ¶ 164. This,
however, fails to satisfy the third element of a Title II claim. Shaw must show
that the denial was “by reason of his disability.” Baribeau, 596 F.3d at 484.
Therefore, Shaw fails to state a claim under Title II of the ADA.
G. Claim 7 – Denial of Medical Care / Deliberate Indifference
Shaw alleges that Kaemingk, Dooley, Young, Bieber, Lentsch, Klemik,
Dr. Carpenter, Dr. Regier, PA Adams, Schreurs, Bowers, Yankton Medical
Clinic, Dr. Adams, and Unknown CHS Employees were deliberately indifferent
to his serious medical needs. The Eighth Amendment prohibits cruel and
unusual punishment including prison officials’ deliberate indifference to the
medical needs of inmates. Allard v. Baldwin, 779 F.3d 768, 771 (8th Cir.
2015). “[D]eliberate indifference to serious medical needs of prisoners
constitutes ‘the unnecessary and wanton infliction of pain’ proscribed by the
Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg

33

v. Georgia, 428 U.S. 153, 173 (1976)). “This is true whether the indifference is
manifested by prison doctors in their response to the prisoner’s needs or by
prison guards in intentionally denying or delaying access to medical care or
intentionally interfering with the treatment once prescribed.” Id. at 104-05.
To state an Eighth Amendment claim, Shaw must show “a substantial
risk of serious harm to the victim,” and “that the prison official was
deliberately indifferent to that risk of harm . . . .” Letterman v. Does, 789 F.3d
856, 861-62 (8th Cir. 2015) (citing Gordon ex rel. Gordon v. Frank, 454 F.3d
858, 862 (8th Cir. 2006)). Shaw alleges that his injuries have caused him
extreme pain and other problems such as physical disability and a diminished
mental state. Docket 1 ¶¶ 165-179. Thus, Shaw satisfies the first prong under
Letterman.
Shaw must also show that defendants were deliberately indifferent to
this harm. “The deliberate indifference element has two components: an actor
must ‘know[ ] of and disregard[ ] an excessive risk to inmate health or safety.’ ”
Letterman, 789 F.3d at 862 (quoting Farmer v. Brennan, 511 U.S. 825, 837
(1994)). To show that defendants knew of the substantial risk of serious harm,
Shaw does not need to show actual knowledge, the court “can infer knowledge
if the risk was obvious.” Id. It is enough to show that the defendant “had been
exposed to information concerning the risk and thus ‘must have known’ about
it.” Id. (quoting Farmer, 511 U.S. at 842).
Shaw alleges that defendants knew of the risk of harm. As medical
personnel at the prison, Dr. Regier, Dr. Carpenter, PA Adams, Schreurs, and
34

Bowers were all made aware of Shaw’s injuries when he requested treatment
for these injuries. Further, medical professionals outside the prison also
affirmed this risk in their examinations and recommendations for treatment.
Shaw also made some of the non-medical prison officers aware of the risk of
harm. He requested accommodations for his injuries from DOC Unit Staff. The
only DOC Unit Staff Members that Shaw names in this claim are Bieber,
Lentsch, and Klemik. Shaw also alleges that he showed Dooley his bruised
knees when asking for a medical bunk. Id. ¶ 161. But Shaw fails to
demonstrate that Kaemingk and Young were aware of the risk of harm. Id.
¶ 167. Thus, Shaw fails to state a claim against Kaemingk and Young.
Shaw also “must show the official ‘knew that their conduct was
inappropriate in light of’ the risk to the prisoner.” Letterman, 789 F.3d at 862
(quoting Krout v. Goemmer, 583 F.3d 557, 567 (8th Cir. 2009)). “Knew” in this
context means more than negligence and is “akin to the criminal rule of
‘recklessness.’ ” Id. (quoting Farmer, 511 U.S. at 839-40). “Generally, the actor
manifests deliberate indifference by ‘intentionally denying or delaying access to
medical care, or intentionally interfering with treatment or medication that has
been prescribed.’ ” Id. (quoting Krout, 583 F.3d at 567).
Shaw alleges that the denials of treatment by both medical and nonmedical prison personnel were intentional either because they did not believe
he should receive treatment when he clearly should or because they wanted to
retaliate. Shaw fails to show that outside medical personnel acted
intentionally. Instead, Shaw alleges that outside personnel merely relayed to
35

Shaw the requirements placed on them by Dooley and Dr. Carpenter. Docket 1
¶ 172. Thus, to the extent that Shaw claims the Yankton Medical Clinic, P.C.
and Dr. Brent Adams, MD were deliberately indifferent to his serious medical
needs, Shaw fails to state a claim. But Shaw sufficiently alleges that Dooley,
Bieber, Lentsch, Klemik, Dr. Carpenter, Dr. Regier, PA Adams, Schreurs,
Bowers, and unknown CHS Employees denied him treatment when he clearly
should have received treatment. Shaw sufficiently pleaded his Eighth
Amendment deliberate indifference claim against Dooley, Bieber, Lentsch,
Klemik, Dr. Carpenter, Dr. Regier, PA Adams, Schreurs, Bowers, and unknown
CHS Employees to survive initial review under §§ 1915 and 1915A.
H. Claim 8 – Denial of Access to the Courts
Shaw raises three claims of denial of access to the courts. The first
claim involves filing grievances. The second involves legal papers and legal
mail. The third involves access to the law library, the adequacy of prison legal
assistance, and legal papers.
1. Grievances
Shaw alleges that Allock, Ponto, Bieber, Lentsch, Klemik, Vitetta,
Maturan, and Ulmer denied Shaw access to the courts by preventing Shaw
from filing grievances about the conditions of his confinement. Docket 1 ¶ 180.
Defendants denied access by (1) denying Shaw grievance forms, (2) refusing to
take Shaw’s grievances form once acquired and completed, (3) not answering
grievances placed in defendants’ boxes or placed under their door, and (4)

36

retaliating against Shaw for trying to grieve the conditions of his confinement
by punishing Shaw. Id.
Filing prison grievances is protected First Amendment activity. Lewis v.
Jacks, 486 F.3d 1025, 1029 (8th Cir. 2007) (citing Dixon v. Brown, 38 F.3d
379, 379 (8th Cir. 1994)). “The Constitution guarantees prisoners a right to
access the courts.” White v. Kautzky, 494 F.3d 677, 679 (8th Cir. 2007). To
show a violation of this right, Shaw “must establish the state has not provided
an opportunity to litigate . . . conditions of confinement in a court of law,
which resulted in actual injury, that is, the hindrance of a nonfrivolous and
arguably meritorious underlying legal claim.” Id. at 680. Shaw alleges that he
has been prevented from filing grievances regarding several conditions of his
confinement. Docket 1 ¶¶ 180-84. Thus, Shaw states a claim of denial of
access to the courts.
2. Legal Mail
Shaw also alleges that UC Vitetta, and UM Bieber denied Shaw the
ability to create and send out his legal mail. Shaw alleges he told Baker that
Vitetta refused to allow Shaw to send legal mail and Baker did nothing. Id. ¶
192. To show a violation of his right of access to the courts, Shaw “ ‘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 nonfrivolous
and arguably meritorious underlying legal claim.’ ” Hartsfield v. Nichols, 511
F.3d 826, 831 (8th Cir. 2008) (quoting White v. Kautzky, 494 F.3d 677, 680
37

(8th Cir. 2007)). In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court
decided that meaningful access to the courts meant that “indigent inmates
must be provided at state expense with paper and pen to draft legal
documents, with notarial services to authenticate them, and with stamps to
mail them.” Id. at 824–25.
Shaw alleges that Vitetta and Bieber prevented Shaw from creating and
mailing legal papers by withholding necessary resources and materials. Id.
¶ 185. This prevented Shaw from arguing key elements of his small claims
court case because he was unable to send his response to Defendants Answer
to opposing counsel Schlimglen. Id. ¶ 186. As a result, the judge would not
allow Shaw to argue his due process claim. Id. Shaw’s due process claim was
not frivolous. Id ¶ 187. This is sufficient to state a claim of denial of access to
the courts. Therefore, the court finds that Shaw states a claim that UC Vitetta
and UM Bieber violated his First Amendment right to access the court by
preventing Shaw from creating and mailing his legal mail.
Shaw fails to state a claim against Baker. Shaw alleges that Baker failed
to supervise Vitetta. Id. ¶¶ 192. “[V]icarious liability is inapplicable to § 1983
suits[.]” Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010). “[E]ach
Government official, his or her title notwithstanding, is only liable for his or her
own misconduct.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). A
supervisor’s liability must be based on his or her own “deliberate indifference
or tacit authorization.” Grayson v. Ross, 454 F.3d 802, 811 (8th Cir. 2006)
(quoting White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994)). To the extent that
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Shaw alleges Baker violated his constitutional rights solely because Baker
supervised Vitetta who allegedly violated his rights, Shaw fails 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).
3. Law Libraries, Legal Assistance & Legal Papers
Shaw claims that Attorney Walter, Binde, Schlimgen, Bieber, and Young
denied him access to the courts by denying him access to the law library and
legal assistance. To show a denial of access to the courts, Shaw must show
actual injury as a result of the alleged inadequacy of the legal assistance office.
See White, 494 F.3d at 680. The actual injury threshold is high. See Hartsfield,
511 F.3d at 831(explaining that being actually prevented from filing a
complaint or having a complaint dismissed for “lack of legal adequacy”
constitutes actual injury); Klinger v. Dep't of Corr., 107 F.3d 609, 617 (8th Cir.
1997) (A claim of “complete and systemic denial of access to a law library or
legal assistance” failed because none of the inmates “suffered actual injury or
prejudice as a result of that denial of access”); Sabers v. Delano, 100 F.3d 82,
83 (8th Cir. 1996) (same).
The Eighth Circuit Court of Appeals has found that an inmate could
show actual injury when he was denied relief under a state habeas petition
because he was prevented from obtaining meaningful access to the law library
to prepare a reply brief. McCauley v. Dormire, 245 F. App'x 565, 566 (8th Cir.
2007). As support, the Court cited the Seventh Circuit Court of Appeals
decision in Marshall v. Knight, 445 F.3d 965, 968-69 (7th Cir. 2006), which
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found actual injury when an inmate was denied access to the prison library,
and as a result, he lost good time credits because he was unable to research
and prepare for his court hearing. Id.
Shaw claims the denial caused him to lose a non-frivolous legal claim in
his small claims court proceeding and to have a case dismissed for failure to
comply with a deadline. Shaw states a claim against Binde, Walter, and Vitetta.
Shaw fails to state a claim against attorney Schlimgen and Young. Shaw
alleges that attorney Schlimgen perjured herself during the small claims case
where she represented Young and Bieber. Id. ¶¶ 193-996. This fails to state a
claim against attorney Schlimgen upon which relief can be granted. Shaw
alleges that Young failed to supervise Bieber. Id. ¶183. To the extent that Shaw
alleges Young violated his constitutional rights solely because Young
supervised Bieber who allegedly violated his rights, Shaw fails 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).
I. Claim 9 – Retaliation in Violation of the First and Fourteenth
Amendments
Shaw alleges that Anderson, Bieber, Lentsch, Madson, Jacobs, and
Perrett retaliated against him when he exercised his constitutional rights.
To succeed on his § 1983 retaliation claim, Shaw must prove that he engaged
in protected activity and that defendants, to retaliate for the protected activity,
took adverse action against Shaw that would chill a person of ordinary

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firmness from engaging in that activity. See Revels v. Vincenz, 382 F.3d 870,
876 (8th Cir. 2004).
Shaw alleges he engaged in a protected activity when he filed numerous
grievances and a § 1983 action against Anderson. Id. ¶ 197. Shaw alleges
Anderson then retaliated by searching Shaw’s cell, taking Shaw’s personal
property and legal papers, and removing Shaw’s cell table. Id. ¶¶ 197-99.
Shaw alleges he engaged in a protected activity when he filed grievances
and a lawsuit against Bieber. Shaw alleges that Bieber retaliated by involving
himself in both stages of the grievance process and giving false information to
his superiors. Id. ¶ 201. Shaw confronted Bieber and Bieber said, “ ‘ Prove it.’ ”
Id. ¶ 202. Shaw also alleges that he was banned from the law library by Bieber
in retaliation for filing grievances. Id. ¶ 203. Shaw alleges that Bieber
retaliated by throwing away thirty-one project applications that Shaw filled out
requesting religious accommodations. Id. ¶ 206. Bieber denied Shaw’s medical
orders and treatments because Shaw filed grievances and a lawsuit against
him. Id. ¶ 208. And Bieber placed mentally ill inmates and inmates of rival
gang members in a cell with Shaw to cause physical and mental harm to
Shaw. Id. ¶ 210.
Shaw alleges he engaged in a protected activity by attempting to file
grievances against Lentsch. Id. ¶ 219. In retaliation, Lentsch took personal
property and legal work from Shaw. Id. And Lentsch took Shaw’s handicap cell
status away and placed Shaw in a three-man cell with incompatible
roommates. Id. ¶ 211.
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Shaw alleges he engaged in a protected activity by suing Madson. Shaw
alleges Madson retaliated by imposing excessive sanctions on Shaw after he
refused transfer. Id. ¶ 221. Madson allegedly responded, “ ‘[B]et you won’t sue
me again.” ’ Id. ¶ 222. Shaw told Madson retaliation is illegal. Madson
allegedly responded, “ ‘so sue me’ and then he laughed.” Id. ¶ 223.
Shaw alleges he engaged in a protected activity of preparing a legal
complaint. Id. ¶ 226. Jacobs retaliated by saying she is a Christian and could
not ethically allow Shaw to sue her employer over his Wiccan religion. Id.
¶ 224. Jacobs and Reddman allegedly removed Shaw and banned him from
the law library and law computers for engaging in a protected activity. Id. ¶
225. Shaw was not written up for any rule infractions, but Shaw was
punished for preparing his complaint. Id.
Shaw alleges that he engaged in a protected activity of filing grievances
and litigating against Perret. Id. ¶ 228. Perret allegedly retaliated against Shaw
by placing Shaw in the SHU over uninvestigated allegations by Shaw’s
mentally ill cellmate. Id. ¶¶ 229-30. Perret allegedly used this incident to “rifle
through” Shaw’s property for three days. Id. ¶ 232. And Perret allegedly took
legal documents from Shaw. Id. ¶ 233. Shaw claims he never received a DHO
hearing and never pleaded guilty. Id. ¶ 234. But Shaw was convicted of the
major rule violation. Id.
Shaw states a claim against Anderson, Bieber, Lentsch, Madson,
Jacobs, and Perrett. As alleged, their actions would chill a person of ordinary
firmness from filing grievances and lawsuits. See Revels, 382 F.3d at 876.
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Shaw’s § 1983 retaliation claim is sufficiently pleaded to survive initial review
under 28 U.S.C. § 1915.
J. Claim 10 – Illegal Promulgation of DOC Rules, Policies, and
Operating Memorandums
Shaw alleges that Kaemingk, Dooley, Young, Drieske, Stanwick-Klemik,
Mertens-Jones, Dr. Carpenter, unknown CHS Employees, CBM, and GTL have
promulgated both written and unwritten, rules, regulations, policies and
operations memorandums that violate Shaw’s federally protected
constitutional rights.
Shaw argues that the policies adopted by the DOC are inconsistent with
South Dakota laws. Docket 1 ¶¶ 237-247. These arguments, however, address
only state law concerns and, therefore, do not support plaintiff's claims for
relief under the federal civil rights statutes. See generally Nilson v. Layton City,
45 F.3d 369, 372 (10th Cir.1995) (“Mere allegations that an official failed to
abide by state law will not suffice to state a constitutional claim.”); Jojola v.
Chavez, 55 F.3d 488, 492 (10th Cir.1995) (“Section 1983 created a federal
cause of action for damages to vindicate alleged violations of federal law.”).
Therefore, all claims alleging a violation of state law are dismissed under to 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Thus, it is ORDERED
1.

Shaw’s motion for leave to proceed in forma pauperis (Docket 3) is
granted.

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2.

Shaw=s institution will collect the additional monthly payments in
the manner set forth in 28 U.S.C. ' 1915(b)(2), quoted above, and
will forward those installments to the court until the $350 filing
fee is paid in full.

3.

The clerk of the court is directed to send a copy of this order to
the appropriate official at plaintiff=s institution.

4.

Shaw’s claims under the Americans with Disabilities Act and Illegal
Promulgation of DOC Rules, Policies and Operations Memorandum are
dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1) for failure to state a claim upon which relief may be granted.

5.

Shaw fails to state a claim against the Yankton Medical Clinic,
P.C., Dr. Brent Adams, and Catherine Schlimgen, and they are
dismissed without prejudice as defendants.

6.

Shaw’s RLUIPA claim against Kaemingk, Dooley, Young, Drieske,
Stanwick-Klemik, Allock, Lentsch, Bieber, Klemik, Mertens-Jones,
unknown CHS Employees, CBM, Tweirweiller, and unknown CBM
employees survives screening under 28 U.S.C. § 1915A.

7.

Shaw’s First Amendment Free Exercise claim against Dooley, Young,
Drieske, Stanwick-Klemik, Jacobs, Frasier, Reddman, CBM,
Tweirweiller, unknown CBM employees, and GTL survives screening
under 28 U.S.C. § 1915A.

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8.

Shaw’s Equal Protection claim against Kaemingk, Dooley, Young,
Drieske, Stanwick-Klemik, Mertens-Jones, CBM, Tweirweiller, and
unknown CBM employees survives screening under 28 U.S.C. § 1915A.

9.

Shaw’s First Amendment right to receive mail claim against Drieske,
Baker, Miller-Hunhoff, Reimann, and Storvick survives screening under
28 U.S.C. § 1915A.

10.

Shaw’s Fourteenth Amendment Due Process claim against Kaemingk,
Dooley, and Young survives screening under 28 U.S.C. § 1915A.

11.

Shaw’s Eighth Amendment deliberate indifference claim against Dooley,
Lentsch, Bieber, Klemik, Dr. Carpenter, Dr. Regier, PA Adams,
Schreurs, Bowers, and Unknown CHS Employees survives screening
under 28 U.S.C. § 1915A.

12.

Shaw’s Eighth Amendment deliberate indifference claim against
Kaemingk, Young, Dr. Brent Adams, and the Yankton Medical Clinic,
P.C. is dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(1) for failure to state a claim upon which relief may be
granted.

13.

Shaw’s access to the courts claim against Ponto, Allcock, Lentsch,
Bieber, Klemik, Vitetta, Ulmer, Matturan, Walter, and Binde survives
screening under 28 U.S.C. § 1915A.

14.

Shaw’s access to the courts claims against Baker, Schlimgen, and
Young are dismissed without prejudice under 28 U.S.C. §§

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1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which
relief may be granted.
15.

Shaw’s retaliation claim against Lentsch, Bieber, Madson, Jacobs,
Anderson and Perrett survives screening under 28 U.S.C. § 1915A.

16.

The Clerk shall send blank summons forms to Shaw so he may cause
the summons and complaint to be served upon the defendants.

17.

Shaw shall complete and send the Clerk of Courts a separate summons
and USM-285 form for each defendant. Upon receipt of the completed
summons and USM-285 forms, the Clerk of Court will issue the
summonses. If the completed summonses and USM-285 forms are not
submitted as directed, the complaint may be dismissed.

18.

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

19.

Defendants will serve and file an answer or responsive pleading to the
remaining claims in the complaint on or before 21 days following the
date of service or 60 days if the Defendants fall under Fed. R. Civ. P.
12(a)(2) or (3).

20.

Shaw 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

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the date and that a true and correct copy of any document was mailed
to defendants or their counsel.
21.

Shaw 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 November 28, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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