Shaw v. Kaemingk et al

Filing 78

ORDER granting 40 Motion to Dismiss for Failure to State a Claim. Signed by U.S. District Judge Karen E. Schreier on 8/2/18. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

JAMES ELMER SHAW,

4:17-CV-04116-KES

Plaintiff,
ORDER GRANTING DEFENDANT
GLOBAL TEL*LINK CORPORATION’S
MOTION TO DISMISS

vs.
DENNIS KAEMINGK, ET AL.,
Defendants.

Plaintiff, James Elmer Shaw, is an inmate at the South Dakota
Department of Corrections (DOC). Shaw filed a pro se civil rights lawsuit under
42 U.S.C. § 1983 against defendant Global Tel*Link Corporation (GTL). Docket
1. Shaw’s First Amendment free exercise claim against GTL survived screening
under 28 U.S.C. § 1915A. Docket 7 at 44. On November 28, 2017, the court
directed service of Shaw’s complaint. Docket 7. GTL moves to dismiss under
Federal Rule of Civil Procedure 12(b)(6). Docket 40. For the following reasons,
the court grants GTL’s motion to dismiss.
BACKGROUND
As they relate to Shaw and GTL, the facts are as follows. Shaw was an
inmate at the South Dakota State Prison (SDSP) in Sioux Falls, South Dakota,
from 2004 to 2017. Docket 1 ¶ 44. In 2017, Shaw was transferred to the Mike

Durfee State Prison (MDSP) in Springfield, South Dakota. Id. Shaw’s religion,
Dorcha Cosán (DC), follows a strict code of ethics called “The Nine Laws of
Dorcha Cosán” (NLDC). Id. ¶ 57. By adhering to the NLDC, Shaw can attain
Godhood, connect with the source of his spiritual path, and perform “true
Magick.” Id. ¶¶ 58-60. DC requires Shaw to have constant access to thousands
of books. Id. ¶ 62. In count one of his complaint, ostensibly under the Religious
Land Use and Institutionalized Persons Act (RLUIPA), Shaw states a claim
against several of the defendants for denying him access to books as mandated
by DC and the NLDC. Id. ¶¶ 54, 62. GTL is not a defendant in count one.
GTL is “a company contracted by the [Department of Corrections] to
provide internet services to inmates within the [Department of Corrections].”
Id. ¶ 42. In count two, Shaw’s claim against GTL is styled as a “free exercise”
claim. Id. at 15. Shaw states, “GTL has discriminated agains (sic) Shaw by
denying Shaw the ability to receive music, books and games on a tablet
because he is an indigent inmate. Shaw, Shaws (sic) friends and family are
being punished for Shaw being poor.” Id. ¶ 98. Shaw states that, “[a]t all times
relevant to this complaint, defendants acted or failed to act under the color of
state law.” Id. ¶ 43.
This court found that Shaw’s free exercise claim was sufficiently pleaded
to survive initial review under 28 U.S.C. § 1915. Docket 7 at 28.

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STANDARD OF REVIEW
A court may dismiss a complaint “for failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). In considering dismissal
pursuant to Rule 12(b)(6), “the court must accept all well-pleaded allegations of
the complaint as true, and all reasonable inferences therefrom must be
construed favorably to the pleader.” McCormack v. Citibank, N.A., 979 F.2d
643, 646 (8th Cir. 1992) (citing Morton v. Becker, 793 F.2d 185, 187 (8th Cir.
1986)). “The court may consider the pleadings themselves, materials embraced
by the pleadings, exhibits attached to the pleadings, and matters of public
record.” Mills v. City of Grand Forks, 614 F.3d 495, 497-98 (8th Cir. 2010)
(citation omitted).
The court may dismiss a complaint for failure to state a claim when the
plaintiff fails to plead “enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). A claim is
plausible on its face “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Stating a
claim that is facially plausible is a higher standard than pleading facts
establishing a “sheer possibility” or a probability of misconduct. Id. Courts are
not required to accept as true legal conclusions “couched as factual
allegation[s]” contained in a complaint. Papasan v. Allain, 478 U.S. 265, 286
(1986).

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Pro se complaints, “ ‘however inartfully pleaded,’ [are] held to ‘less
stringent standards than formal pleadings drafted by lawyers.’ ” Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)). Nonetheless, a pro se complaint must comply with the minimal
requirements set forth in the Federal Rules of Civil Procedure, which
specifically require pleadings to contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Although a pro se complaint need not contain detailed factual allegations, it
must contain “more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A pro
se complaint must “allege sufficient facts to support the claims advanced.”
Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). The court is not required to
“supply additional facts, nor will [it] construct a legal theory . . . that assumes
facts that have not been pleaded.” Id. (citing Dunn v. White, 880 F.2d 1188,
1197 (10th Cir. 1989)). If the complaint does not contain these bare essentials,
dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir.
1985)).
DISCUSSION
“[T]o state a claim for relief under § 1983, a plaintiff must allege
sufficient facts to show ‘(1) that the defendant(s) acted under color of state law,
and (2) that the alleged wrongful conduct deprived the plaintiff of a
constitutionally protected federal right.’ ” Zutz v. Nelson, 601 F.3d 842, 848
(8th Cir. 2010) (quoting Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th
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Cir. 2009)). “[Section] 1983 demands more than a simple claim that the
[defendant] engaged in wrongful conduct and the [plaintiff was] deprived of
constitutional rights. Indeed, to state a cause of action under § 1983, a plaintiff
must plead facts that would tend to establish that the defendant’s wrongful
conduct caused the constitutional deprivation.” Id. at 851 (emphasis in
original).
I. State Actor
First, Shaw must show that GTL acted under color of state law. In a
§ 1983 action, acting under the color of state law means that the defendant
must “have exercised power ‘possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of state
law.’ ” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic,
313 U.S. 299, 326 (1941)). “The injury complained of must have been caused
by the exercise of some right or privilege created by the state, by a rule of
conduct imposed by the state, or by a person for whom the state is
responsible.” Parker v. Boyer, 93 F.3d 445, 448 (8th Cir. 1996) (quoting Lugar
v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). The government’s “ ‘[m]ere
approval of or acquiescence in the initiatives of a private party’ does not
amount to state action.” Sabri v. Whittier Alliance, 833 F.3d 995, 1000 (8th Cir.
2016) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).
In Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531
U.S. 288 (2001), the Supreme Court stated that “there is no single test to
identify state actions and state actors . . . .” Id. at 294. The Court undertook a
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fact-intensive inquiry to determine whether a private entity acted under color of
state law in a § 1983 claim. Id. at 298. The Court applied its analysis from
Rendell-Baker v. Kohn, 457 U.S. 830 (1982). In Rendell-Baker, the Supreme
Court determined that “a private school, whose income is derived primarily
from public sources and which is regulated by public authorities,” did not “[act]
under color of state law when it discharged certain employees.” Id. at 831.
First, the Court in Rendell-Baker reasoned that actions of private
contractors are not state actions “by reason of [the contractor’s] significant or
event total engagement in performing public contracts.” Id. at 841. Second, the
Court held that state regulation, “even if ‘extensive and detailed,’ ” does not
make a private contractor’s actions state action. Id. Third, the Court held that
a private entity is a state actor not when the entity merely performs a public
function, but when “the function performed has been ‘traditionally the
exclusive prerogative of the State.’ ” Id. at 842 (quoting Jackson v. Metro.
Edison Co., 419 U.S. 345, 353 (1974). Fourth, the court held that there was not
a “symbiotic relationship” between the government and the private school. Id.
at 843; see Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961).
In order for a private entity to commit state action, “ ‘there be a “close
nexus” not merely between the state and the private party, but between the
state and the alleged deprivation itself.’ ” Ams. United for Separation of Church
and State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 422 (8th Cir.
2007) (quoting Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir.
2007)). In Prison Fellowship Ministries, Inc., two private non-profit organizations
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acted “in concert” with the Iowa Department of Corrections, and the
organizations were given “24-hour power to incarcerate, treat, and discipline
inmates.” Id. at 423. These facts established a sufficiently close nexus to find
that the non-profit organizations had acted under color of state law. Id.
Here, Shaw has not pleaded sufficient facts to scrutinize the relationship
between GTL and the state. Even if he had pled sufficient facts, Rendall-Baker
makes clear that a private entity can be subject to state regulation, rely on
public contracts, and even perform a public function without acting under
color of state law for purposes of a § 1983 claim. The complaint does not
provide a factual basis to determine whether providing internet services is a
function that is typically the exclusive prerogative of the state. Nothing in the
complaint alleges that the relationship between GTL and the state rises to the
level of a “close nexus.” Shaw’s complaint does not present facts from which
the court can infer that GTL plausibly acted under color of state law. Thus,
Shaw’s claim against GTL fails because he has not alleged facts sufficient to
meet the first element of a § 1983 claim.
II. Violation of Constitutional Right
Even if Shaw had pled facts sufficient to plausibly claim that GTL acted
under color of state law, Shaw must also show that a constitutional right was
violated in order to satisfy the second element of a § 1983 claim. In its
screening order, the court construed Shaw’s claim against GTL to be a free
exercise of religion claim arising under the First Amendment. Docket 7 at 26.

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Shaw states that GTL denied him “the ability to receive music, books, and
games on a tablet because he is an indigent inmate.” Docket 1 ¶ 98.
“[I]n making a free exercise claim under 42 U.S.C. § 1983, the inmate
must establish both the existence of a sincerely held religious belief and the
infringement upon that belief by the challenged act or regulation.” Hayes v.
Long, 72 F.3d 70, 73 (8th Cir. 1995) (emphasis added). Here, Shaw’s complaint
is void of any facts, allegations, or conclusions supporting a claim that GTL’s
actions in any way related to, or infringed upon, Shaw’s free exercise of
religion. Shaw merely states that his indigent status precludes him from
accessing all the “books, music, and games” he would like through GTL’s
internet service. Construing the pleadings in Shaw’s favor, there is not nearly
enough “factual content that allows the court to draw the reasonable inference
that [GTL] is liable for the misconduct alleged.” Twombly, 550 U.S. at 570.
Thus, Shaw fails to state a claim that GTL violated his First Amendments
rights.
Under the standard for dismissal, Shaw fails to state a plausible claim
that GTL acted under color of state law. Further, Shaw fails to allege that GTL,
even if it had acted under color of state law, violated his free exercise right.
Thus, he does not assert a cognizable claim under § 1983 and dismissal is
appropriate.
CONCLUSION
Shaw has failed to allege sufficient facts to plausibly show that GTL
acted under color of state law and that GTL’s conduct deprived Shaw of a
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constitutionally protected right. Thus, Shaw has failed to state a claim against
GTL upon which relief can be granted.
Thus, it is ORDERED that GTL’s motion to dismiss (Docket 40) without
prejudice is granted.
Dated August 2, 2018.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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