Maday v. Dooley et al

Filing 199

ORDER granting in part and denying in part 125 Motion for Summary Judgment; granting in part and denying in part 145 Motion for Summary Judgment; adopting as modified 188 Report and Recommendation; and overruling 192 Objection to Report and Recommendation except as indicated. Signed by U.S. District Judge Karen E. Schreier on 9/30/2019. (CLR)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
STANLEY J. MADAY,
Plaintiff,
vs.
BOB DOOLEY, Chief Warden At Mike
Durfee State Prison, Individual And
Official Capacity; DENNIS KAEMINGK,
Secretary Of The South Dakota Doc,
Individual And Official Capacity; DR.
MARY CARPENTER, Director Of The
Department Of Health, Individual And
Official Capacity; JENNIFER
STANWICK-KLIMEK, Deputy Warden At
Mike Durfee State Prison, Individual
And Official Capacity; REBECCA
SCHIEFFER, Associate Warden At Mike
Durfee State Prison, Individual And
Official Capacity; ALEJANDRO REYES,
Associate Warden At Mike Durfee State
Prison, Individual And Official Capacity;
BRENT FLUKE, Associate Warden At
Mike Durfee Sttae Prison, Individual
And Official Capacity; JOSH KLIMEK,
Unit Manager At Mike Durfee State
Prison, Individual And Official Capacity;
TRAVIS TJEERDSMA, Case Manager At
Mike Durfee State Prison, Individual
And Official Capacity; TAMMY
DEJONG, Case Manager At Mike Durfee
State Prison, Individual And Official
Capacity; PA MICHAEL JOE HANVEY,
Medical Provider At Mike Durfee State
Prison, Individual And Official Capacity;
DR. STEPHAN SCHROEDER, Medical
Provider At Mike Durfee State Prison,
Individual And Official Capacity; MISTY

4:17-CV-04168-KES
ORDER ADOPTING REPORT AND
RECOMMENDATION AS MODIFIED
AND GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTIONS FOR SUMMARY
JUDGMENT

TOLSMA-HANVEY, Nursing Supervisor,
At Mike Durfee State Prison Individual
And Official Capacity; LINDSEY
RABBASS, Nurse At Mike Durfee State
Prison, Individual And Official Capacity;
ROBIN MYER, Nurse At Mike Durfee
State Prison, Individual And Official
Capacity; CANDICE FEJFAR, Nurse At
Mike Durfee State Prison, Individual
And Official Capacity; DAYNA
KLAWITTER, Nurse At Mike Durfee
State Prison, Individual And Official
Capacity; DENNIS CROPPER,
Correctional Officer At Mike Durfee
State Prison, Individual And Official
Capacity; THOMAS HUITEMA,
Correctional Officer At Mike Durfee
State Prison, Individual And Official
Capacity; MICHAEL MEYER,
Correctional Officer At Mike Durfee
State Prison, Individual And Official
Capacity; LORI STRATMAN,
Correctional Officer At Mike Durfee
State Prison, Individual And Official
Capacity; MIKE GROSSHUESCH,
Correctional Officer At Mike Durfee
State Prison, Individual And Official
Capacity; NICOLE ST. PIERRE,
Correctional Officer At Mike Durfee
State Prison, Individual And Official
Capacity; MURIEL NAMMINGA,
Laundry Supervisor At Mike Durfee
State Prison, Individual And Official
Capacity; CATHERINE SCHLIMGEN,
Legal Counsel For The South Dakota
Doc, Individual And Official Capacity;
UNKNOWN SOUTH DAKOTA DOC
EMPLOYEES, Individual And Official
Capacites; UNKNOWN SOUTH DAKOTA
DOH EMPLOYEES, INDIVIDUAL AND
OFFICIAL CAPACITIES; JON E.
LITSCHER, Secretary Of The Wisconsin
Doc, Individual And Official Capacity;
KATHARINE A. ARISS, Assistant Legal
Counsel For The Wisconsin Doc,
2

Individual And Official Capacity;
THOMAS P. MALONEY, Library Services
And Educational Technology
Coordinator For The Wisconsin Doc,
Individual And Official Capacity; and
UNKNOWN WISCONSIN DOC
EMPLOYEES, Individual And Official
Capacities;
Defendants.
Plaintiff, Stanley J. Maday, a Wisconsin prisoner in custody at Mike
Durfee State Prison, filed this lawsuit under 42 U.S.C. § 1983 and Title II of the
Americans with Disabilities Act (ADA). Dockets 1, 94. The South Dakota and
Wisconsin defendants now move for summary judgment. Dockets 125, 145.
Maday resists the motions. Docket 173. The matter was referred for a report
and recommendation to Magistrate Judge Veronica L. Duffy under 28 U.S.C.
§ 636(b)(1)(B). Magistrate Judge Duffy recommended granting summary
judgment or dismissal of all claims, but one. Docket 188. For the following
reasons, the court adopts the report and recommendation as modified below.
The court grants in part and denies in part defendants’ motions for summary
judgment.
FACTS
In the light most favorable to Maday, the nonmoving party, the facts are
as follows:
Maday is a Wisconsin inmate. Docket 1 ¶ 4. Maday is currently held in
custody in South Dakota. Id. Maday arrived in South Dakota on August 12,
2013. Id. ¶ 40. Initially, Maday was housed at the South Dakota State
3

Penitentiary (SDSP) in Sioux Falls, South Dakota, at the Jameson Unit. Id.
Later, he was moved to Mike Durfee State Prison (MDSP) in Springfield, South
Dakota. Id. ¶ 41.
I.

Properly Fitting Shoes and the Comfort Items Policy
At SDSP in the Jameson Unit, Maday received a pair of canvas shoes. Id.

¶ 40. Maday found the shoes to be too narrow for his feet. Id. Maday alleges
that the shoes immediately began to cause blisters on his feet. Id. These
blisters turned into painful calluses. Id. Maday requested wider shoes from the
Jameson laundry unit, but his request was denied. Id.
Upon his arrival to MDSP, Maday sent a kite request to laundry for wide
shoes. Id. ¶ 41. A few days later, the laundry supervisor, defendant Muriel
Namminga, measured Maday’s feet and issued him wide leather shoes with
velcro closures. Id. Maday alleges that he continued to develop blisters and
calluses on his feet because the wide leather shoes could not be properly
secured on his feet. Id. ¶ 44. By November 16, 2014, Maday was on his third
pair of the issued wide leather shoes. Id. ¶ 50. Maday alleges that he received
these replacements because of hygiene issues. Docket 192 at 3.
Maday observed other inmates wearing New Balance cross training
shoes. Docket 1 ¶ 42. When Maday inquired about the shoes, the inmates
allegedly informed Maday that they were for diabetic inmates or inmates with
foot problems. Id. ¶ 42. At a sick call with medical staff on September 5, 2013,
Maday complained about the calluses on his feet and, for the first time,
requested a pair of New Balance shoes. Id. ¶ 45. Maday alleges that he was told
4

by the unknown nurse that the unit staff had to issue New Balance shoes. Id.
When Maday asked unit staff for New Balance shoes, defendants Tammy
DeJong and Travis Tjeerdsma told Maday he needed to be approved by medical.
Id. ¶ 46, 55. Maday also asked unit manager, defendant Josh Klimek, about
the shoes; Klimek said it was medical’s decision. Id. ¶ 48. Maday made several
requests to medical and unit staff for New Balance shoes. Id. ¶¶ 42, 45-49, 5356.
Defendant Dr. Mary Carpenter, the medical director at MDSP, issued a
memorandum to inmates and staff on February 24, 2014. Docket 173-1 at 26.
The memorandum pertained to inmates’ requests for “non-medical issues such
as . . . requests for special shoes[.]” Id. The memorandum stated that “Health
Services will not address requests for comfort items or custodial issues”
because “[t]hese comfort items are not necessary for good medical care.” Id.
Maday claims that the lack of properly fitting shoes caused him to
develop painful blisters and calluses. Docket 1 ¶ 44. Maday alleges that he
went to the medical unit on several dates and complained about his painful
blisters and calluses. The first sick call for this issue was on September 5,
2014. Id. ¶ 45. Maday continued to make complaints about the calluses and
blisters at various sick calls on an unknown date, November 16, 19, 21, and
24, 2014. Id. ¶¶ 47, 50-53. At the November 19th visit, Maday complained
about the calluses and the inflammation and swelling of his right big toe. Id.
¶ 51. On December 3, 2014, Maday went to a sick call to complain about his
calluses and an open sore near a callus on his big right toe. Id. ¶ 54. Maday’s
5

sore had drainage and swelling. Id. Medical staff told Maday to monitor the site.
Id. On December 17, 2014, Maday returned to medical to complain about the
worsening sore. Id. ¶ 56.
On December 18, 2014, Maday had a follow-up visit with medical for his
injured toe. Id. ¶ 57. The callus was cut down by medical staff. Id. This
revealed an ulceration, which was cleaned and covered with antibiotics. Id. At
the December 18th sick call, defendants Michael Hanvey and Misty TolsmaHanvey, medical staff at MDSP, emailed Klimek and told Klimek that Maday
would benefit from better fitting shoes. Id. That same day, Klimek contacted
the laundry unit and told them to issue New Balance shoes to Maday. Id. ¶ 58.
Maday went to laundry, and his feet were measured. Id. Maday received his
New Balance shoes in January of 2015. Id.; Docket 174 at 4. Maday stated that
since he received his New Balance shoes, he has no new blisters or calluses,
and his old calluses are going away. Docket 1 ¶ 58.
II.

Plantar Fasciitis and 2015 Foot Fracture
In spring of 2015, Maday began to experience pain in his right heel. Id.

¶ 61. Maday alleges that he first complained of this severe foot pain at a sick
call on July 27, 2015, but medical staff did not address it. Id. ¶ 62. At his
chronic care appointment on July 28, 2015, Maday told Hanvey about his pain
and stated that it was identical to the pain he experienced with his previous
plantar fasciitis. Id. ¶ 63. Maday alleges that Hanvey said there was nothing he
could do for the heel pain. Id.; Docket 174 at 6. On September 11, 2015,
Maday complained again about the heel pain, and a follow-up appointment was
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scheduled. Docket 1 ¶ 64. At his October 14, 2015 follow-up appointment,
Physician Assistant (PA) Brad Adams and Maday discussed the pain in Maday’s
heel. Id. ¶ 65. PA Adams gave Maday arch supports for the heel pain. Id.
Maday’s heel was also x-rayed, and it was determined that there was no bone
spur. Id. ¶¶ 65-66.
On November 4, 2015, at a sick call, Maday complained to defendant
Lindsey Rabbass, a nurse, about the extreme pain in a different part of his foot.
Docket 174 at 7. Maday requested crutches, which medical staff denied
because crutches were only issued with a doctor’s order. Id. at 8. Medical staff
issued a medical lay-in tray and Tylenol. Id.; Docket 1 ¶ 68. On November 5,
2015, defendant Robin Myer, a nurse, processed Maday’s sick call. Docket 1
¶ 69. Like the November 4th appointment, there was no physical examination,
no crutches issued, and no x-rays conducted. Id. The medical lay-in tray was
extended and Maday still needed to report for Tylenol. Id. On November 6,
2015, Maday made another sick call for the pain in his foot. Docket 174 at 9.
At this sick call, his foot was examined. Id. Defendant Candice Fejfar, a nurse,
instructed Maday to rest his foot and issued Tylenol four times a day. Id. at 10.
On November 9, 2015, and the morning of November 10, 2015, Maday
attempted two sick calls, but was not seen by anyone. Id. at 11. On the
afternoon of November 10, defendant Dr. Stephan Schroeder saw Maday and
ordered an x-ray of his foot. Id. Dr. Schroeder advised Maday to avoid weight
bearing activities, but did not issue crutches. Id. at 12. Maday’s foot was xrayed that evening on-site at MDSP. Id. at 11-12. On November 11, 2014, Dr.
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Daniel Fritz reviewed the x-rays; his impression of the x-ray was an acute
nondisplaced fourth metatarsal shaft fracture. Docket 1 ¶ 76; Docket 126-54.
On November 13, 2015, Maday had a follow-up appointment where medical
staff informed him that he had an “acute nondisplaced 4th metatarsal shaft
fracture.” Docket 174 at 12-13. He was given a cam/walker boot, issued
crutches and a wheelchair, medical lay-in trays, and Tylenol. Id. at 13.
III.

Removal of Arch Supports and 2016 Foot Fracture
On March 26, 2016, defendant Dennis Cropper, a correctional officer,

conducted a search of Maday’s room. Docket 174 at 59. During the search,
Cropper confiscated Maday’s arch support inserts. Id. Maday informed Cropper
that he had a medical order for the arch supports, but Cropper did not return
the arch supports. Id. at 59-60. A week later, Maday asked Klimek about his
arch supports. Docket 1 ¶ 81. Klimek told Maday that he would look into it. Id.
After another week went by, Maday alleges that he asked Klimek again about
the arch supports. Id. Klimek responded that he was waiting to hear back from
medical. Id. Maday received replacement arch supports on April 7, 2016.
Docket 94 at 4; Docket 174 at 60. Maday alleges that after this incident, he
developed a new limp and inflamed plantar fasciitis. Docket 174 at 60.
On June 27, 2016, Maday told a nurse about his plantar fasciitis pain
and requested a medical lay-in tray to stay off his feet per instructions. Id. At a
sick call on July 5, 2016, Maday complained about the constant ache at the
site of his previous fracture. Docket 1 ¶ 82. Maday received a handout with
exercises. Id. On August 9, 2016, Maday told PA Adams that he was
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experiencing pain at the place of his old fracture. Docket 174 at 54, 60. Maday
alleges that PA Adams told Maday that this was “not unheard of.” Docket 1
¶ 83. On September 7, 2016, Maday had a sick call with defendant Dayna
Klawitter, a nurse. Docket 174 at 62. Again, Maday complained that his
current pain was like his previous stress fracture pain. Id. Klawitter gave
Maday a handout with stretching exercises for his ankle. Id.; Docket 173-1 at
62. At two follow-up appointments on September 12 and 16, 2016, Maday’s
foot pain was not addressed. Docket 174 at 54. Maday continued to perform
the stretching exercises. Id. At a chronic care appointment on February 7,
2017, Maday complained about the constant pain at the site of his previous
fracture. Docket 1 ¶ 86. PA Adams addressed the increase foot pain. Docket
174 at 54. On February 10, 2017, medical staff performed an x-ray on Maday’s
foot. Docket 1 ¶ 87. Maday’s x-rays exhibited an acute stress fracture, which
was partially healed. Docket 174 at 63; Docket 173-1 at 69-70. Maday received
a walking boot on February 13, 2017. Docket 1 ¶ 88.
On February 15, 2017, Maday had a follow-up appointment with PA
Adams to review the x-rays. Id. ¶ 89. PA Adams’s assessment was a “[d]isp fx of
fourth metatarsal bone[.]” Docket 126-61 at 2. At this appointment, Maday’s
foot was placed in a splint with two ace wraps, and Maday was issued
crutches. Docket 1 ¶ 89. Later in the day, Maday removed the splint and ace
wraps from his foot and refused to wear it. Id. ¶ 90; Docket 174 at 65. Maday
told a nurse that he was not flexible enough to put the splint on by himself.
Docket 174 at 65. Arrangements were made for Maday to report to the medical
9

unit to have the splint put on. Id. at 65-66. Maday signed a release to
discontinue the splint, but he remained compliant with his crutches and
wheelchair use. Id. at 66.
On February 20, 2017, Maday was referred to Dr. Terence Pederson.
Docket 1 ¶ 91; Docket 174 at 63-64. Dr. Pederson provided treatment for
Maday’s foot. Docket 1 ¶ 91.
IV.

Diabetic Socks
On November 24, 2014, Maday was issued a medical order for diabetic

socks. Id. ¶ 127. Maday went to the laundry unit and received diabetic socks.
Docket 140 ¶ 64; Docket 173-1 at 3-4; Docket 174 at 41. Maday alleges that
the diabetic socks are too small because they are “one-size fit all” and 100%
cotton so they shrink in the wash. Docket 1 ¶ 127. Maday alleges that the
socks do not fit properly because the elastic is too tight and left painful rings
around his lower legs. Docket 174 at 41. Maday must fold the elastic top down
to eliminate the rings. Id. Maday notes that the socks are for feet size 6-12, and
Maday’s feet are greater than a size 12. Id. at 43.
Maday alleges that he made several complaints to defendants about the
poorly fitting socks. Docket 94 at 4-5; Docket 174 at 41-44; see also Docket
126-29; Docket 126-31. Maday alleged that he complained to Namminga, and
in response, Namminga stated that she believed these were the best diabetic
socks Wal-Mart had. Docket 1 ¶ 127; Docket 174 at 42-43.
Maday learned that other inmates were issued Dr. Comfort diabetic
socks directly from the medical unit. Docket 174 at 41, 44; Docket 173-1 at 110

2. Maday wanted Dr. Comfort socks because they were available in larger sizes.
Docket 174 at 44. On June 17, 2016, Maday requested Dr. Comfort socks
because his shoes were worn out and they did not provide support or
cushioning. Docket 94 at 4; see also Docket 174 at 44, 46. Maday was told that
only laundry issued socks were available, but was offered Ted hose stockings
as an alternative. Docket 94 at4.
At a chronic care appointment on August 9, 2016, PA Adams wrote in his
medical notes that he “evaluated the patient’s socks and they do appear to fit
adequately.” Docket 126-45 at 2. PA Adams noted that he and Maday
discussed the reason why his socks did not fit properly was due to the swelling
from Maday’s dependent edema, not because of ill-fitting socks. Id. On October
19, 2016, Maday filed an Informal Resolution Request (IRR) requesting larger
diabetic socks. Docket 174 at 43. In his IRR, Maday stated that the socks
issued in September were smaller than the usual socks Maday recieved. Id.
V.

Sports Illustrated Swimsuit Edition Magazines
Maday alleges that defendants Nicole St. Pierre and Mike Grosshuesch

violated his First Amendment rights when they rejected his February 2015 and
2016 Sports Illustrated Swimsuit Edition Magazines. Docket 1 ¶¶ 96-97. In
February of 2015, mailroom supervisor, St. Pierre, denied Maday’s Sports
Illustrated Swimsuit Edition Magazine because it contained “nudity.” Id. ¶ 96.
Maday exhausted his administrative remedies in attempts to acquire this
magazine. Docket 140 ¶¶ 185-88.
Maday’s February 2016 Sports Illustrated Swimsuit Edition Magazine
11

was denied by mailroom supervisor, Grosshuesch, due to “sexually explicit”
material. Docket 1 ¶ 97. Maday filed an IRR form, which was denied by St.
Pierre. Docket 174 at 79. When Maday requested a Request for Administrative
Remedy (AR) form after his IRR was denied, DeJong refused to provide him a
form. Id. at 81; Docket 172 ¶ 193.
The South Dakota Department of Corrections (DOC) prohibits the
purchase and possession of pornographic materials under policy 1.3.C.8.
Docket 126-100. Pornography includes materials that feature nudity or
sexually-explicit conduct. Id. Defendants allege that both magazines contained
nudity or sexually explicit material. Docket 140 ¶¶ 195, 198. Maday disputes
the content of the magazines and alleges that there is no nudity within the
magazines. Docket 174 at 13-16; Docket 1 ¶ 98.
VI.

Hardcover Books
Maday alleges that he was denied delivery of two hardcover books.

Docket 174 at 83. On November 21, 2016, Maday received a notice from
property supervisor, defendant Lori Stratman, that a hardcover book sent to
Maday was denied per policy. Docket 1 ¶ 99. Maday alleges that the book was
sent by a friend through a publisher/distributor. Id. Maday exhausted his
administrative remedies in his attempts to receive the book. Docket 140
¶¶ 206-11. On March 6, 2018, Stratman denied delivery of a hardcover book
sent to Maday by his son through a publisher. Docket 94 at 8.
Per policy 2.3.C.4, “Hard cover books for individual or group use are not
allowed. All books, regardless of purpose or subject matter, must be soft cover.
12

All hardcover books that are already inside the institution may remain, but no
new hardcover books will be allowed.” Docket 126-103. Inmates are allowed
access to hardcover books in the library where they can check them out and
bring them to their rooms. Docket 1 ¶ 99; Docket 128 ¶ 15. Additionally,
inmates can have hardcover Bibles or Qurans in their possession. Docket 1
¶ 99.
VII.

Mail
The South Dakota DOC has a policy that limits the incoming

correspondence inmates can receive. Docket 140 ¶ 217. Policy 1.5.D.3 requires
general correspondence to be on plain white copy or lined white paper. Id.
Postcards or cards are not permitted. Id. Additionally, the policy requires
incoming envelopes to be white in color, may only include an affixed canceled
stamp or postage label, and the return address must be handwritten or inkstamped. Id. ¶ 221. The policy prohibits padded envelopes, stickers, tape, selfadhesive labels, and sealing wax. Id. ¶ 222.
On March 13, 2018, Maday received a mailroom rejection notice that a
letter from Dr. Andrea Nelson containing a money order was rejected. Docket
174 at 86-87. Grosshuesch rejected the letter because it contained colored
paper, which violated policy 1.5.D.3. Id. at 87. Maday alleges that he was not
given the option to instruct defendants on how to handle the money order, but
he wrote an instruction on a kite request form that the money order should be
deposited in his account. Id. at 86; Docket 126-106.
On April 4, 2018, a letter sent from Maday’s brother was refused and
13

returned to sender by Grosshuesch. Docket 94 at 8. Maday alleges that he
never received a mailroom rejection notice. Id. at 11. In response to Maday’s
IRR, Tiffany Voigt stated that the letter was rejected because “when it is
apparent that the correspondence contains contraband without opening the
letter, it will be rejected.” Id. at 8, 11; Docket 174 at 88. Maday admits that the
envelope had a return address label affixed to it, but still disputes whether his
letter should have been rejected. Docket 174 at 88, 90. Maday disputes the
validity of this policy and whether it was in effect when his brother’s letter was
rejected. Id. at 88; Docket 94 at 8. Maday exhausted his administrative
remedies. Docket 140 ¶¶ 240-26.
VIII. Access to the Courts
Maday alleges that defendants are impeding his access to the courts.
Docket 1 ¶ 141; Docket 94 at 18. While Maday’s petition for post-conviction
relief was under review by Wisconsin state courts, Maday did not have access
to Wisconsin law. Docket 174 at 92. On April 5, 2017, the Wisconsin Supreme
Court issued a ruling on Maday’s petition for post-conviction relief. Docket 1
¶ 100. Maday alleges that he wanted to start working on a collateral attack of
his conviction. Id. When Maday attempted to go to the law library at MDSP, he
realized that there was no Wisconsin law available to him. Id. In June of 2017,
inmates were given electronic tablets with an application for LexisNexis. Id.
Only South Dakota law and federal law were available on the tablets. Id. Maday
asked staff how he could get access to Wisconsin law on the tablets. Id. Maday
filed a grievance, but it was denied. Id.
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Maday also attempted to contact the Wisconsin DOC to obtain access to
Wisconsin law. Id. ¶ 101. Maday wrote a letter to defendant Jon E. Litscher,
the Secretary of Wisconsin’s DOC. Id. Maday received a response letter from
defendant Katharine A. Arris, assistant legal counsel for the Wisconsin DOC.
Id. In the letter, Arris stated that they could not provide any assistance to
Maday. Id. Additionally, Maday received a denial letter from defendant Thomas
P. Maloney, the Library and Education Technology Coordinator of Wisconsin’s
DOC. Id.
Maday alleges that Grosshuesch denied him legal mail. Maday sent a
letter to the State Bar of Wisconsin. Id. ¶ 102. Maday’s letter was denied
because Grosshuesch stated that the mail policy did not allow mail to be sent
to any state bar. Id. Maday disputes whether that is what the policy states. Id.
Additionally, Maday attempted to send a letter to Attorney Deanne M. Koll, but
it was denied because the address included “Care of State Bar of Wisconsin.”
Id. Maday states that the letter was specifically addressed to Deanne Koll.
Docket 174 at 19-20; Docket 173-1 at 24. Maday disputes whether the policy
prohibits this letter. Docket 174 at 19-20; Docket 1 ¶ 102.
On October 1, 2017, the South Dakota DOC terminated the contract for
a staff attorney for inmates. Docket 94 at 9. Inmates were told that they had
access to LexisNexis through their electronic tablets. Id. Defendants also closed
the law library and removed all legal resources from the library. Id. at 18.
Ultimately, Maday received access to Wisconsin law on April 3, 2018. Docket
174 at 93.
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IX.

Grievances and Placement in the Security Housing Unit
Maday alleges that he has filed two complaints with possible Prison Rape

Eliminate Act (PREA) implications and received retaliation from defendants for
filing these complaints. Id. at 21-23. The first complaint alleged that defendant
Cropper was groping and “ogling” Maday’s roommate. Id. at 21. The roommate
did not wish to file the complaint, so Maday filed the complaint with the
Division of Criminal Investigation (DCI). Id. at 21-22. DCI referred the
complaint back to the prison, and Maday alleges that no investigation was
conducted. Id. at 22. After this first complaint, Klimek asked Maday if there
were any threats of imminent danger. Id. Maday said no and was not placed in
the Security Housing Unit (SHU) for protection. Id.
On January 9, 2017, Maday filed a second grievance with PREA
implications “concerning predatory homosexual behaviors” in the bathroom.
Docket 1 ¶ 115; Docket 126-113; Docket 174 at 22. Maday had an issue with
the lack of doors on the bathroom stalls. Docket 126-113; Docket 174 at 22.
Maday alleges that defendant Jennifer Stanwick-Klimek implemented this
policy. Docket 174 at 22. Maday raised his concerned about the bathroom
doors with Klimek. Id. at 23. Klimek ordered that Maday be placed in the SHU.
Docket 1 ¶ 115; Docket 174 at 23. Maday disputes whether defendants placed
him in the SHU for protection. Docket 174 at 23.
On April 27, 2018, Sergeant Tycz led Maday to the SHU and told Maday
that Klimek told Tycz to put Maday in the SHU. Docket 94 at 11-12. Tycz
placed Maday in a holding cell by the entrance of the SHU. Docket 172 ¶ 265.
16

Once Maday was placed in the holding cell, Tycz spoke with Lieutenant Larson
in another room. Docket 94 at 12. Tycz returned and informed Maday that
Maday did not need to be in the SHU because he did not do anything wrong.
Docket 172 ¶ 266.
X.

ADA Accommodations
Finally, Maday alleges several ADA violations by defendants. First, Maday

alleges that defendants failed to accommodate his diabetes when they failed to
provide him with a specialized diet. Docket 174 at 23. On February 4, 2016,
Maday was prescribed a 2400 calorie diabetic diet. Docket 94 at 13. Maday
alleges that he would request a diabetic diet tray but would receive either a
heart healthy or bland diet tray. Id. Maday alleges that this occurred at every
meal. Id. On February 4, 2017, Maday signed a Release of Responsibility form
and returned to a regular diet tray. Docket 140 ¶ 84; Docket 174 at 50. Maday
stated that he would pick and choose what to eat on the tray. Docket 94 at 13.
Because of this, Maday alleges he struggled to maintain healthy blood sugar
levels. Id.
Second, Maday alleges that he was not able to use the recreation yard
(Sports Complex) or the large recreation yard west of the East and West
Crawford living units for several reasons. Docket 174 at 75. Maday’s access to
these recreation facilities was limited due to his mobility issues, scheduling
conflicts, and the condition of the recreation facilities. Id. at 76-77; Docket 1
¶¶ 123-25. Maday was unable to attend West Crawford’s recreation time (10:00
a.m.) because he had his blood glucose level checks between 10:00 and 10:30
17

a.m. everyday. Docket 1 ¶ 123.
In the spring of 2015, the large recreation yard next to the West Crawford
living unit was opened to inmates for occasional recreation time. Id. ¶ 60.
Maday spent his recreation time walking laps. Id. Maday alleges that the
condition of the recreation yard and the large Crawford recreation yard
prevented him from continuing his lap-walking because he feared he would
reinjure himself. Id. ¶¶ 60, 124. The recreation yard had potholes, large rocks,
broken asphalt, and uneven terrain. Id. ¶ 60. MDSP had an alternate
recreation area in the gym, but Maday was not allowed to use it because of his
walking boot/cast. Id. ¶ 125. Maday claims that he should have been allowed
to use the handicap recreation area. Id.
Next, Maday alleges that he did not receive handicap accommodations
when he broke his foot. Id. ¶ 126. While Maday’s foot was broken, Maday did
not have access to the handicap accessible shower. Id. ¶¶ 80, 126. Maday had
to use the standard inmates shower, which he alleges had a slick tile floor and
no handrails. Id. ¶ 126.
STANDARD OF REVIEW
The court’s review of a magistrate judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). In conducting its de
novo review, this court may then “accept, reject, or modify, in whole or in part,
18

the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
LEGAL STANDARD
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate where the moving party “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The court must view the facts, and
inferences from those facts, in the light most favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007) (citing United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962) (per curiam)); see also Helton v. Southland Racing
Corp., 600 F.3d 954, 957 (8th Cir. 2010) (per curiam). The burden is placed on
the moving party to establish both the absence of any genuine issue of material
fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
Once the movant has met its burden, the nonmoving party may not simply rest
on the allegations in the pleadings, but must set forth specific facts, by affidavit
or other evidence, showing that a genuine issue of material fact exists.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Fed. R. Civ. P. 56(e).
“A dispute is genuine when ‘the evidence is such that a reasonable jury
could return a verdict for the non-moving party.’ ” Westchem Agric. Chems. Inc.,
v. Ford Motor Co., 990 F.2d 426, 429 (8th Cir. 1993) (quoting Anderson, 477
U.S. at 248). “A fact is material when it might affect the outcome of the suit
under governing law.” Davis v. Or. Cty., 607 F.3d 543, 548 (8th Cir. 2010)
(citing Anderson, 477 U.S. at 248). “Only disputes over facts that might affect
19

the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Anderson, 477 U.S. at 248. “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact.” Id. at 247-48.
The availability of summary judgment is essentially a question of
determining “whether there is the need for a trial—whether, in other words,
there are any genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of either party.”
Id. at 250. Though pro se litigants are entitled to a liberal construction of their
pleadings, Federal Rule of Civil Procedure 56 remains equally applicable to
them. Quam v. Minnehaha Cty. Jail, 821 F.2d 522, 522 (8th Cir. 1987).
I.

Deliberate Indifference
A.

Properly Fitting Shoes

Maday alleges a deliberate indifference claim against several defendants
for their failure to provide him with properly fitting shoes. Docket 1 ¶¶ 40-59,
129, 131. Maday’s first claim for deliberate indifference is directed at nonmedical staff: an unknown laundry supervisor and Namminga. Id. ¶129.
Maday’s second claim is directed at medical and MDSP staff: Hanvey, TolsmaHanvey, Klimek, Tjeerdsma, and DeJong. Id. ¶ 131. In the report and
recommendation, Magistrate Judge Duffy recommended that the court grant

20

defendants’ summary judgment motion for qualified immunity on this claim.
Docket 188 at 27.
A majority of Maday’s objections to the report and recommendation are
to non-material facts, like Magistrate Judge Duffy’s use of the word “abscess”
compared to Maday’s assertion that he developed “lesions.” See Docket 192 at
3. The court will only address Maday’s objections that go to the substantive law
or material facts because this is a motion for summary judgment.
Maday objects to Magistrate Judge Duffy’s finding that Maday’s serious
medical need, the abscess on his callus, started on December 18, 2014. Docket
192 at 2 (citing Docket 188 at 18). The first element to a deliberate indifference
claim to serious medical needs requires Maday to show he suffered objectively
serious medical needs. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.
1997). Maday argues that his calluses, sore, and ulcers on his feet constitute
serious medical needs because of his diabetes. Docket 192 at 2-3. Generally,
calluses alone do not constitute a serious medical need. See, e.g., Stevens v.
City of New York, 2013 WL 81327, at *3 (S.D.N.Y. Jan. 8, 2013) (finding
calluses allegedly caused by prison-issue footwear was not serious a medical
need); Wagle v. Skutt, 2011 WL 6004344, at *5 (E.D. Mich. Nov. 7, 2011)
(same); Liverman v. Gubernik, 2010 WL 3703314, at *12 (E.D. Pa. Sept. 21,
2010) (same); Grear v. Gelabert, 2009 WL 607407, at *5 (W.D. Mich. Mar. 9,
2009) (holding petitioner’s calluses did not constitute a serious medical need
because there was no infection and did not require medical treatment). Here,
Maday’s calluses—prior to December 18, 2014—do not rise to the level of a
21

serious medical need. In viewing the facts in the light most favorable to Maday,
the court will consider Maday’s open sore and ulcer—that was treated on
December 18, 2014—to rise to the level of a serious medical need because the
injuries required medical treatment. Thus, this objection is overruled.
Next, Maday objects to Magistrate Judge Duffy’s finding that the facts
alleged by Maday do not show deliberate indifference. Docket 192 at 3 (citing
Docket 188 at 22). Magistrate Judge Duffy found that defendants attempted to
address Maday’s complaints, and that the steps defendants took do not show a
mental state akin to criminal recklessness. Docket 188 at 23. Magistrate Judge
Duffy notes several steps defendants took to address Maday’s complaints like
giving him wide leather shoes, replacing those shoes three times, giving him
moleskin and pumice stone for his calluses, and giving him continued access
to medical care. Id. at 22-23. Maday argues that defendants did not attempt to
address his complaints. Docket 192 at 3, 5. Maday also objects to Magistrate
Judge Duffy’s findings that defendants were not aware of Maday’s serious
medical needs. Id. at 3 (citing Docket 188 at 24-25). Maday argues that he
complained on numerous occasions about his calluses. Id. at 6.
The second element to a deliberate indifference claim requires Maday to
demonstrate that defendant actually knew of but deliberately disregarded
Maday’s serious medical needs. Dulany, 132 F.3d at 1239. There is no
deliberate indifference on the part of Namminga because she quickly gave
Maday the requested wide shoes when Maday initially asked for wider shoes
and when Maday had a medical order for New Balance shoes. On his arrival to
22

MDSP, Maday requested wide shoes. Docket 1 ¶ 40. “A few days later”
Namminga issued Maday wide leather shoes. Id. ¶ 41; Docket 192 at 3. Maday
argues that the provided wide shoes did not properly secure to his feet and
caused him to keep developing blisters. Docket 1 ¶ 44. But Maday never
informed Namminga personally that the leather shoes were causing the
problem with his feet. Docket 140 ¶ 18. Additionally, there was no medical
order instructing Namminga to issue Maday New Balance shoes until
December 18, 2014. Id. ¶ 21. Once Namminga received this order, she
immediately ordered the shoes. Thus, Maday failed to show that Namminga
“actually knew of” Maday’s blisters and that the shoes were causing the issue.
As to the medical defendants, the record demonstrates that the staff did
not ignore Maday’s complaints about his sore/ulcer and the need for proper
fitting shoes. On December 3, 2014, Maday complained to medical staff about
the open sore, and medical staff advised him to monitor it. Docket 1 ¶ 54. On
December 18, 2014, the open sore—that was now an ulceration—was cleaned
and antibiotics were applied. Id. ¶ 57. Once Maday developed a serious medical
need, medical staff emailed Klimek and stated Maday would benefit from better
fitting shoes. Id. Maday was sent to the laundry unit, his feet were measured,
and New Balance shoes were ordered. Id. ¶ 58. Maday received his New
Balance shoes six weeks later. Id. This does not constitute deliberate
indifference because once defendants became aware of Maday’s serious medical
need, they monitored the injury, and when the injury did not improve, they
ordered the necessary shoes.
23

Maday’s objections are premised on his belief that the accommodations
or treatments did not fit his preferred choices. “Prison officials do not violate
the Eighth Amendment when, in the exercise of their professional judgment,
they refuse to implement a prisoner's requested course of treatment.” Long v.
Nix, 86 F.3d 761, 765 (8th Cir. 1996). The fact that Maday believed he should
have been prescribed New Balances at an earlier date does not establish a
claim that defendants were deliberately indifferent to his serious medical need.
Thus, both of Maday’s objections are overruled.
Because the court overruled all of Maday’s objections on this claim, the
court adopts Magistrate Judge Duffy’s analysis and conclusion for this claim.
The court grants summary judgment in favor of defendants on this claim.
B.

Policy Allowing Non-Medical Staff to Decide Proper Footwear

In his complaint, Maday alleges that the South Dakota DOC has a policy
that restricts medical staff from prescribing necessary footwear and permits
non-medical staff to do so. Docket 1 ¶ 130. Maday claims that this policy
resulted in deliberate indifference to inmates’ serious medical needs by Bob
Dooley, Dennis Kaemingk, Dr. Carpenter, Jennifer Stanwick-Klimek, Rebecca
Schieffer, Brent Fluke, Alejandro Reyes, and Tolsma-Hanvey. Id. Magistrate
Judge Duffy recommended that the court grant summary judgment on this
claim. Docket 188 at 27-28.
Maday makes three objections to this portion of the report and
recommendation. Docket 192 at 4, 6-7. Maday’s first two objections relate to
Magistrate Judge Duffy’s determination that defendants did not allow non24

medical staff to determine medical issues. Docket 188 at 27-28. First, Maday
alleges that he demonstrated that medical staff adopted the policy with his
affidavits and exhibits. Docket 192 at 4, 6. He points to Dr. Carpenter’s
memorandums from 2014 and 2016 (Docket 173-1 at 26, 27). Docket 192 at 4.
Maday interprets the memorandums to say that medical staff cannot issue
comfort items, which include New Balances shoes. Id. The court, however,
agrees with Magistrate Judge Duffy’s reading of the memorandums. Both
memorandums state that health services staff provide medical treatment,
which does not include providing certain “comfort items.” Docket 173-1 at 26,
27. The memorandums “directly relate[] to requests by offenders for nonmedical issues[.]” Id. Thus, medical staff can prescribe these items if they are
for medical issues and this objection is overruled.
Second, Maday argues that defendants failed to explain why Klimek was
involved in obtaining Maday’s New Balances. Docket 192 at 4. Klimek’s
involvement was limited to medical staff emailing him that Maday would
benefit from better fitting shoes and Klimek informing the laundry unit that
Maday needed New Balances. These facts came from Maday’s complaint and
from defendant’s statement of undisputed facts, which Maday did not object to
specifically. Docket 1 ¶ 58; Docket 140 ¶ 23. Thus, this objection is overruled.
Maday’s third objection relates to Magistrate Judge Duffy’s statement
that Maday’s version of the events supports defendants’ asserted policy. Docket
192 at 7 (citing Docket 188 at 28). Maday argues that the report and
recommendation ignores the fact that the New Balances did not come from
25

medical staff, but instead from the laundry unit. Docket 192 at 7. The fact that
the laundry unit was the entity that issued the New Balances does not support
Maday’s interpretation of the policy. It was the medical staff’s order that
initiated the issuance of the New Balances from the laundry unit. Docket 1
¶¶ 57-58. Thus, this objection is overruled.
Because the court overruled all of Maday’s objections on this claim, the
court adopts Magistrate Judge Duffy’s analysis and conclusion. The court
grants summary judgment in favor of defendants on this claim.
C.

Plantar Fasciitis

In his complaint, Maday alleges that defendants Hanvey, Tolsma-Hanvey,
Rabbass, Fejfar, Myer, and other unknown staff were deliberately indifferent to
his serious medical needs when they failed to treat his plantar fasciitis. Id.
¶ 133. Magistrate Judge Duffy recommended that the court grant defendants’
motion for summary judgment on this claim. Docket 188 at 30.
Maday has two objections to the report and recommendation as it relates
to Maday’s plantar fasciitis. Docket 192 at 7. First, Maday argues that
Magistrate Judge Duffy gave preferential treatment to defendants’ argument
that Maday never informed defendants of his pain. Id. Maday alleges that
Magistrate Judge Duffy made an improper credibility determination when she
cited defendants’ affidavits instead of Maday’s affidavit. Id. (citing Docket 188
at 29-30).
In the report and recommendation, Magistrate Judge Duffy relies on
defendants’ asserted sequence of events. See Docket 188 at 29. Magistrate
26

Judge Duffy references defendants’ affidavits and cites to several documents
submitted by defendants in the record. See id. at 29-30. Based on this
evidence, Magistrate Judge Duffy determined that Maday did not inform
medical staff about his heel pain until October 14, 2015. Id. at 30. Maday,
however, submitted his own affidavit that disputed defendants’ affidavits and
supporting material. Docket 174. Maday asserts that he first complained to
medical staff about his heel pain on July 27, 2015, and continued to complain
to no avail until November 13, 2015. Id. at 6, 12-13. Magistrate Judge Duffy
resolved this dispute by accepting defendants’ affidavits and supporting
evidence rather than Maday’s affidavit. See Madewell v. Roberts, 909 F.2d
1203, 1206 (8th Cir. 1990). “[S]uch a credibility determination is inappropriate
in ruling on a motion for summary judgment.” Id. Thus, this objection is
sustained.
But Maday’s allegations, even assuming they are true, do not rise to the
level of deliberate indifference. Maday’s allegations show that defendants
responded to his complaints of heel pain with increased treatment over time.
See Fletcher v. Butts, 994 F.2d 548, 549 (8th Cir. 1993) (per curiam) (holding
that conservative treatment over time did not establish deliberate indifference).
He first complained to medical staff that he was experiencing severe pain in his
heel on July 27 and 28, 2015. Docket 174 at 6. His next complaint of heel pain
to medical staff did not occur until October 14, 2015. Id. At this appointment,
PA Adams ordered an x-ray and issued Maday arch support inserts, which he
received immediately. Id. at 6-8. Maday alleges, “The period between July 28,
27

2015 and October 14, 2015 totals 78 days that Plaintiff was subject to the
wanton and unnecessary infliction of pain.” Id. at 7. The delay between his July
complaint and treatment in October is due to Maday’s failure to notify medical
staff of his continued pain. Once Maday made medical staff aware that his pain
persisted, the record shows that medical staff acted in treating it. At Maday’s
November 4, 2015 appointment, medical staff issued Maday a medical lay in
tray with meals on the unit so Maday would not have to walk on his foot and
told Maday he could receive Tylenol four times a day. Docket 1 ¶ 68; Docket
174 at 8-9. “[T]he delays plaintiff complains of are typical both in prison and in
ordinary life for a condition like plantar fasciitis.” McGuire v. Bryson, 2014 WL
4467849, at *3 (E.D. Mo. Sept. 9, 2014).
Maday alleges his plantar fasciitis should have been treated with better
cushioning for his feet with diabetic socks, crutches or a cane for assistance
with moving, hospital visits, access to the handicap shower, arrangements for
blood sugar and medical passes at his unit, and x-rays. Docket 174 at 6, 8-12.
This case involves no more than a mere disagreement by Maday with the
course of treatment that defendants provided. In his affidavit, Maday mentions
several times that medical staff’s failure to provide his desired treatment shows
deliberate indifference. See id. at 7-12. “[W]ell-established law dictates that
such cases are not cognizable.” Goodrich v. Hacker, 2017 WL 1055968, at *9
(N.D. Iowa Mar. 20, 2017) (citing Eighth Circuit Court of Appeals cases holding
disagreement with treatment plan does not constitute deliberate indifference);
see, e.g., Meuir v. Greene Cty. Jail Emps., 487 F.3d 1115, 1118-19 (8th Cir.
28

2007) (explaining that difference of medical opinion or course of treatment does
not constitute deliberate indifference); Dulany, 132 F.3d at 1239 (holding that
prison doctors remain free to exercise independent medical judgment and that
inmates have no constitutional right to their requested course of treatment);
Long, 86 F.3d at 765. Thus, Maday fails to establish a deliberate indifference
claim.
For his second objection, Maday argues that Magistrate Judge Duffy
allowed introduction of affidavits that were impermissibly based on
“information and belief” in violation of Federal Rule of Civil Procedure 56(c).
Docket 192 at 7. This objection is an attempt to reargue Maday’s motion to
strike (Docket 155), which Magistrate Judge Duffy denied. Docket 188 at 11824. Maday cannot object to Magistrate Judge Duffy’s determination on the
motion to strike. Additionally, though Magistrate Judge Duffy states that
“defendants have asserted by affidavit,” she cites no specific affidavits from
defendants, but instead cites to documents in the records, i.e. sick call reports.
See Docket 188 at 29-30 (citing Docket 126-78 through Docket 126-83).
Federal Rule of Civil Procedure 56(c)(1) permits parties to support their
assertions that a fact cannot be genuinely disputed by “citing to particular
parts of materials in the record including . . . documents . . . .” Thus, this
objection is overruled.
The court adopts Magistrate Judge Duffy’s analysis and conclusion as to
this claim. Summary judgment as to Maday’s plantar fasciitis deliberate
indifference claim is granted in favor of defendants.
29

D.

Failure to Treat a Fracture in Maday’s Foot for 9 Days

In his complaint, Maday alleges that defendants Dr. Carpenter, Hanvey,
Tolsma-Hanvey, Dr. Schroeder, and unknown South Dakota Department of
Health/Correctional Health Services (DOH) violated his right to be free from
cruel and unusual punishment when they were deliberately indifferent to his
broken metatarsal. Docket 1 ¶ 132. Maday alleges that he was forced to walk
on his broken metatarsal for ten days, which caused him excruciating pain. Id.
In the report and recommendation, Magistrate Judge Duffy recommended that
the court grant summary judgment. Docket 188 at 35.
Maday has five objections to this portion of the report and
recommendation. Docket 192 at 7-8. First, Maday objects to Magistrate Judge
Duffy’s statement that on November 13, 2015, Maday received medical care he
deemed “acceptable.” Id. at 7 (citing Docket 188 at 31). Maday argues that he
demonstrated by affidavit and exhibits that he did not receive medical
treatment until November 13, despite his attempts to receive treatment at a
sick call on November 4, 2015. Docket 192 at 7-8. Maday states that
Magistrate Judge Duffy “completely ignores” the fact that he went in on
November 4 for pain in his foot. Id. But Magistrate Judge Duffy did not ignore
this fact as she noted in the report and recommendation that Maday reported
his severe pain in his foot to medical staff on November 4, 5, 6, 9, and 10,
2015. Docket 188 at 30. Thus, this objection is overruled.
Second, Maday objects to the report and recommendation’s discussion of
his visit with Dr. Schroeder. Docket 192 at 7 (citing Docket 188 at 31). Maday
30

argues that Magistrate Judge Duffy “completely ignores the fact” that Dr.
Schroeder told Maday to avoid weight bearing activities but did not issue him
crutches or a cane. Id. Though Magistrate Judge Duffy does not provide this
fact in the report and recommendation, the court does not find that she needed
to include it. The fact that Dr. Schroeder did not issue Maday crutches when
Maday believes he should have does not constitute a material fact to Maday’s
deliberate indifference claim because “a prisoner’s mere difference of opinion
over matters of expert medical judgment or a course of medical treatment fail[s]
to rise to the level of a constitutional violation.” Meuir, 487 F.3d at 1118-19
(alteration in original) (quoting Taylor v. Bowers, 966 F.2d 417, 421 (8th Cir.
1992)). Thus, this objection is overruled.
Third, Maday objects to Magistrate Judge Duffy’s reliance on defendants’
affidavits as they relate to his complaints of pain at his November 4 and 5,
2015 sick calls. Docket 192 at 8. He argues that Magistrate Judge Duffy made
an “impermissible credibility determination” when the report and
recommendation gave “more weight” to defendants’ affidavits than his affidavit.
Id. In the report and recommendation, Magistrate Judge Duffy only cites
Maday’s allegations for these two sick calls. See Docket 188 at 30 (“Mr. Maday
alleges he reported to prison medical staff on November 4, 5, 6, 9, and 10,
2015, complaining each day of severe pain in his right foot.”). She goes on to
state that no action was taken at any of these visits. Id. at 30-31. Magistrate
Judge Duffy only relies on Maday’s allegations and does not reference any of
defendants’ affidavits for those sick calls. Because Magistrate Judge Duffy
31

accepts Maday’s allegations as true, she did not make an impermissible
credibility determination here. Thus, this objection is overruled.
Fourth, Maday objects to Magistrate Judge Duffy’s consideration of
defendants’ affidavits because he alleges the affidavits are based upon
“information and belief” and not “personal knowledge” as required by Federal
Rule of Civil Procedure 56(c)(4). Docket 192 at 8. Again, this is an attempt by
Maday to reargue his motion to strike (Docket 155), which Magistrate Judge
Duffy denied. See Docket 188 at 118-24. For the reasons stated above, this
objection is overruled.
Lastly, Maday objects to Magistrate Judge Duffy’s conclusion that a twoday delay in receiving treatment does not constitute deliberate indifference.
Docket 192 at 10. Maday alleges that the delay was nine day and not two days
as determined by Magistrate Judge Duffy. Id. Maday alleges that he did not
receive appropriate or his preferred treatment immediately. See Docket 174 at
59. Maday first complained of the extreme pain on November 4, 2015. Id. at 7.
After repeated sick calls on November 5, 6, and 9, his foot was x-rayed on
November 10, 2015. Id. at 8-12. On November 11, 2015, Maday’s foot pain was
diagnosed as an “acute nondisplaced 4th metatarsal shaft fracture.” Id. at 13.
Two days after his diagnosis, on November 13, 2015, Maday was put in a
cam/walker boot, issued crutches and a wheelchair, medical lay-in trays, and
Tylenol. Id. A two-day delay between diagnosis and Maday’s preferred
treatment does not amount to a constitutional violation. See NahkahyenClearsand v. Lincoln Reg’l Ctr., 2017 WL 3172856, at *3 (D. Neb. July 25,
32

2017), aff’d, 2018 WL 1633473 (8th Cir. Feb. 22, 2018) (finding defendants
were not deliberately indifferent when plaintiff broke his foot, was given an ice
pack and crutches the same day, had an x-ray two days after the injury, and
placed in a boot five days after he learned his foot was broken). Additionally,
between his initial complaint and final diagnosis, Maday received various
treatments like medical lay-in trays, Tylenol, and he was educated to rest his
feet. Docket 1 ¶¶ 68-69; Docket 174 at 8. See Witt v. Bell, 551 F. App’x 240,
241 (5th Cir. 2014) (per curiam) (finding plaintiff’s allegations that he only
received over-the-counter pain relief and a treatment plan for his broken toe to
heal on its own did not rise to the level of a constitutional violation).
Maday’s belief that his treatment plan should have included crutches or
a cane, a hospital visit, access to handicap showers, arrangements for medical
passes in his unit, or an x-ray earlier in his treatment plan does not amount to
a constitutional violation. See Valladares v. Hubbard, 490 F. App’x 72, 72 (9th
Cir. 2013) (“[N]either a short delay in treatment that did not result in further
injury, nor [plaintiff’s] disagreement with defendants’ medical judgment or
course of treatment, constitutes deliberate indifference.) Thus, Maday’s
allegations do not establish that defendants were deliberately indifferent to his
broken metatarsal.
Because the court overruled all of Maday’s objections on this claim, the
court adopts Magistrate Judge Duffy’s analysis and conclusion. The court
grants summary judgment in favor of defendants on this claim.

33

E.

Removal of Arch Supports

In his complaint, Maday alleges that Cropper deliberately interfered with
Maday’s prescribed medical care when Cropper removed Maday’s arch
supports from his room. Docket 1 ¶ 134. Maday alleges that this action
resulted in a refracture of his healed metatarsal and caused him severe pain.
Id. Additionally, Maday alleges that Klimek was deliberately indifferent to
Maday’s serious medical needs when Klimek refused to intervene. Id. ¶ 135.
Magistrate Judge Duffy recommended that the court grant summary judgment
on this claim. Docket 188 at 37.
Maday has two objections to this portion of the report and
recommendation. Docket 192 at 9. First, Maday argues that Magistrate Judge
Duffy’s statement that the court and Maday are not experts in reading x-rays
demonstrates the need for an expert. Id. (citing Docket 188 at 36). The court
construes this objection as an attempt by Maday to reargue his motion for
expert witness (Docket 175), which Magistrate Judge Duffy denied (Docket 188
at 124-131; Docket 189). Thus, this objection is overruled.
Second, Maday argues that Magistrate Judge Duffy disregards the fact
that a genuine issue of material fact remains because a reasonable probability
exists that Cropper’s confiscation of the arch supports initiated the new
problems with Maday’s metatarsal. Docket 192 at 9. “[A] causal connection
between an event and an injury may be inferred in cases in which a visible
injury or a sudden onset of an injury occurs. . . . However, when the injury is a
sophisticated one, i.e., requiring surgical intervention or other highly scientific
34

technique for diagnosis, proof of causation is not within the realm of lay
understanding and must be established through expert testimony.” Turner v.
Iowa Fire Equip. Co., 229 F.3d 1202, 1210 (8th Cir. 2000) (internal quotation
omitted).
Maday has failed to present any medical evidence that there is a causal
link between the confiscation of the arch supports and his acute stress
fracture. Maday primarily relies on allegations in his complaint and affidavits
to support a causal connection, though some of his allegations are supported
by medical evidence. On January 5, 2016, medical staff found Maday’s stress
fracture to be healed. Docket 126-57. On March 26, 2016, Cropper confiscated
Maday’s arch supports. Docket 174 at 59. Maday received replacements on
April 7, 2016. Id. at 60. On June 27, 2016, Maday complained to medical staff
that he had a “constant ache” at the site of his previous fracture. Docket 1
¶ 82; see also Docket 126-43. At this sick call, the nurse noted that Maday
requested a medical lay-in because Maday told the nurse that he “may get a
stress fracture if [he] continues to walk on his feet.” Docket 126-43; Docket 174
at 60. On February 9, 2017, Maday was diagnosed with a “partially healed
fourth metatarsal fracture.” Docket 126-60. The only medical evidence
presented was Maday’s subjective complaints contained within his sick call
notes, the healed fracture from January of 2016, and the partially healed
fracture from February 2017.

35

Thus, the court agrees with Magistrate Judge Duffy’s finding that there is
no proof of a causal nexus between Cropper’s confiscation of the arch supports
and Maday’s reoccurrence of pain in his foot. This objection is overruled.
Because the court overruled all of Maday’s objections to this claim, the
court adopts Magistrate Judge Duffy’s analysis and conclusion. The court
grants defendants’ motion for summary judgment for this claim.
F. Failure to Properly Treat Foot Fracture in August of 2016
In his complaint, Maday alleges that medical staff and Dayna Klawitter
were deliberately indifferent to his serious medical needs when they did not
diagnosis his fracture until February of 2017, gave him ankle exercises, did not
have a walking boot on site to fit Maday, and referred him to Dr. Pederson.
Docket 1 ¶¶ 136-37. Magistrate Judge Duffy recommended that the court grant
summary judgment on this claim. Docket 188 at 40.
Maday has three objections to this portion of the report and
recommendation. Docket 192 at 9. All of Maday’s objections to this portion of
the report and recommendation do not pertain to Magistrate Judge Duffy’s
overall analysis or conclusion. Instead, Maday attacks Magistrate Judge Duffy’s
discussion of the facts.
First, Maday makes a factual objection to Magistrate Judge Duffy’s
finding that Maday’s x-ray “showed no acute fracture or dislocation, but
instead a partially healed fourth metatarsal fracture.” Id. (citing Docket 188 at
38). Maday argues that Magistrate Judge Duffy “ignores a salient fact” that Dr.
Pederson diagnosed Maday’s metatarsal fracture healed prior to the February
36

2017 x-ray. Id. Though Magistrate Judge Duffy did not mention the healed
metatarsal x-ray from January of 2016 in this section of the report and
recommendation, she discussed it on the page before during her analysis on
Maday’s arch support claim. See Docket 188 at 32. Magistrate Judge Duffy
noted that on January 4, 2016, doctors proclaimed Maday’s foot to be healed.
Id. at 36 (citing Docket 173-1 at 68). Furthermore, the medical evidence in the
record supports Magistrate Judge Duffy’s finding. On February 10, 2016, Dr.
Stephen Peters read Maday’s recent x-ray and stated his impression was a
partially healed fourth metatarsal fracture. Docket 126-60. At a follow-up
appointment with Maday on February 15, 2016, PA Adams’s assessment was a
“[d]isp fx of fourth metatarsal bone.” Docket 126-61 at 2. He reported this exact
information to Maday at the appointment. Id. The only proof Maday offers to
support his statement that his foot was “refractured” is Maday’s own
interpretation/reading of the x-rays. Docket 192 at 9. Nowhere in the medical
evidence do the doctors call the injury a “refracture.” For these reasons, this
objection is overruled.
Second, Maday argues that Magistrate Judge Duffy offered no
explanation for how Maday’s foot went from healed to partially healed. Id. It is
not Magistrate Judge Duffy’s duty to explain how Maday’s foot went from
healed to partially healed. It is Maday’s duty to present medical evidence that
provides such an explanation, and he has failed to provide any evidence that
can explain how his fourth metatarsal went from healed to partially healed.
See Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997) (explaining that
37

plaintiff must place verifying medical evidence into record to establish effect
lapse in treatment had on medical condition). Thus, this objection is overruled.
Third, Maday contends that Magistrate Judge Duffy made an
unreasonable credibility determination when she stated that Maday refused to
wear the splints defendants offered. Docket 192 at 9. In the report and
recommendation, Magistrate Judge Duffy stated that Maday made the informed
choice not to follow the medical staff’s recommendation to wear a splint and
ace wrap. Docket 188 at 39. Maday argues that Magistrate Judge Duffy
“automatically assumes” Maday refused the splint and walked out without aid
of crutches, but he did use crutches and a wheelchair. Docket 192 at 9.
Nowhere in the report and recommendation does Magistrate Judge Duffy make
such an assumption. Though she does not mention whether Maday used
assistive devices to walk, she also does not specifically mention that he made
the decision to not use them. See Docket 188 at 39-40. Thus, this objection is
overruled.
Because the court has overruled all three of Maday’s objections, the
court adopts Magistrate Judge Duffy’s analysis and conclusion as to this claim.
The court grants the summary judgment motion in favor of defendants on the
failure to treat Maday’s fracture claim.
G. Failure to Provide Properly Fitting Diabetic Socks
In his complaint, Maday alleges that Namminga, Hanvey, TolsmaHanvey, Klimek, Tjeerdsma, DeJong, and Dr. Carpenter were deliberately
indifferent when they failed to give Maday properly fitting diabetic socks even
38

though Maday has a medical order for them. Docket 1 ¶ 146. In the report and
recommendation, Magistrate Judge Duffy recommended the court grant
summary judgment on this claim. Docket 188 at 43-44.
Maday makes one factual objection to this section. Docket 192 at 9.
Maday states that Magistrate Judge Duffy inserted her “own version” of the
facts when she stated that PA Adams told Maday that his diabetic socks were
the appropriate size. Id. (citing Docket 188 at 41). Maday argues that PA
Adams never said his socks were the appropriate size; instead, PA Adams said
the socks appeared to fit appropriately. Id.
Magistrate Judge Duffy makes two references about PA Adam’s
comments on the fit of the socks. First, Magistrate Judge Duffy states that PA
Adams told Maday “that his diabetic socks were the appropriate size[.]” Docket
188 at 41. Second, she stated that PA Adams evaluated the socks and
concluded that the socks “fit him adequately.” Id. at 42-43. In his medical
notes, PA Adams states, “I evaluated the patient’s socks and they do appear to
fit adequately.” Docket 126-45 at 2. PA Adams goes on to explain in his notes
that he discussed with Maday that the socks do not fit properly because of the
swelling from Maday’s dependent edema, not because of ill-fitting socks. Id.
Thus, after comparing PA Adam’s notes with Magistrate Judge Duffy’s
discussion, the court does not find that Magistrate Judge Duffy inserted her
own version of the facts. Thus, this objection is overruled.

39

Because the court overruled Maday’s objection, the court adopts
Magistrate Judge Duffy’s analysis and conclusion as to this claim. The court
grants summary judgment in favor of defendants on this claim.
II.

First Amendment Claims
A.

February 2016 Sports Illustrated Magazine
1.

Maday’s Objections to the Report and Recommendation

In his complaint, Maday alleges Grosshuesch violated Maday’s First
Amendment rights when Maday’s February 2016 Sports Illustrated Swimsuit
Edition magazine was confiscated for “sexually explicit” material. Docket 1
¶ 139; Docket 94 at 17. In the report and recommendation, Magistrate Judge
Duffy recommended that the court grant summary judgment on this claim
because Maday failed to exhaust his administrative remedies. Docket 188 at
49. Maday objects to Magistrate Judge Duffy’s finding that he failed to exhaust
the administrative remedies. Docket 192 at 10, 20.
“An inmate must exhaust all available administrative remedies before
bringing a § 1983 suit.” Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015)
(citations omitted). “Inmates are excused from exhausting remedies ‘when
officials have prevented prisoners from utilizing the procedures, or when
officials themselves have failed to comply with the grievance procedures.’ ” Id.
at 452 (quoting Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005)). “ ‘[A]
remedy that prison officials prevent a prisoner from utiliz[ing] is not an
available remedy . . . .’ ” Id. (alterations in original) (quoting Miller, 247 F.3d at
740).
40

Magistrate Judge Duffy noted that Maday filed an IRR (Docket 126-98),
which was denied (Docket 126-99), but did not follow the next step by filing an
AR (Docket 127 ¶ 24). Docket 188 at 49. Maday, however, objects to this
finding and argues that he exhausted his administrative remedies. Docket 192
at 10, 20. In defendants’ statement of undisputed material facts, defendants
claim the record reflects that Maday elected not to pursue an AR. Docket 140
¶ 193 (citing Docket 127 ¶ 27). By accepting the facts submitted by defendants,
Maday alleges that Magistrate Judge Duffy made an “impermissible credibility
determination.” Docket 192 at 10.
In his affidavit, Maday stated that after his IRR was denied, he requested
an AR from DeJong. Docket 174 ¶ 193. Maday alleges that DeJong refused to
give him an AR. Id. Thus, viewing the facts in the light most favor to the nonmoving party, the court finds that DeJong refused to give Maday an AR.
Because DeJong refused to give Maday an AR, the second step in the grievance
was not available to him. Thus, Maday exhausted his available administrative
remedies by completing an IRR. Maday’s objection is sustained.
2.

Qualified Immunity as to Money Damages

Because the court sustained Maday’s objection, the court must now
conduct a de novo review of his claim. Maday alleges his First Amendment
rights were violated when Grosshuesch confiscated his February 2016 Sports
Illustrated Swimsuit Edition magazine. Docket 1 ¶ 139. In their summary
judgment motion, defendants argue that they are entitled to summary
judgment based on qualified immunity to the extent that Maday seeks
41

monetary damages for this claim. Docket 126 at 83. Defendants argue that the
state of relevant law in 2015 to 2016 did not indicate that prison officials were
precluded from rejecting/censoring magazines containing revealing images
intended to sexually arouse the viewer. Id.
Public officials are “shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerarld,
457 U.S. 800, 818 (1982). The existence of qualified immunity generally turns
on the objective reasonableness of the actions, without regard to the knowledge
or subjective intent of the particular officer. Id. at 819. In analyzing a qualified
immunity defense, the court must consider two factors: (1) whether a
constitutional right has been violated on the facts alleged, taken in the light
most favorable to the party asserting the injury, and (2) whether the right was
clearly established when viewed in the specific context of the case. Saucier v.
Katz, 533 U.S. 194, 201 (2001); see also Pearson v. Callahan, 555 U.S. 223,
236 (2009).
In his complaint, Maday states that his First Amendment rights were
violated because defendants confiscated his magazine under the DOC’s
Pornography Policy 1.3.C.8, but there was no sexually explicit material in the
magazine. Docket 1 ¶ 97. Maday alleged in his complaint that Lieutenant
Dykstra said he could not find any sexually explicit photos in the magazine. Id.
The court interprets Maday’s claim to be that defendants were not following
their own policy. Maday notes that the policy defines “nudity” as “a pictorial or
42

other graphic depiction where . . . genitalia, pubic area, buttocks or female
breast are exposed.” Docket 126-100; Docket 173 at 4. Defendant’s reasoning
for confiscating the magazine was that it contained females whose breasts were
“covered with less than fully opaque material[.]” Docket 133 ¶ 11; see also
Docket 135 ¶ 13. Maday alleges that this criterion is nowhere in the policy.
Docket 173 at 4. “[T]here is no federal constitutional liberty interest in having .
. . prison officials follow prison regulations.” Phillips v. Norris, 320 F.3d 844,
847 (8th Cir. 2003). Thus, there was no constitutional right violated by
defendants when they failed to follow their pornography policy.
Also, Maday states that the DOC pornography policy as applied to this
specific magazine is an unconstitutional violation of his First Amendment
rights. Docket 1 ¶ 97; Docket 173 at 4; Docket 174 at 10-11. Defendants argue
that the magazine contains numerous images that feature sexual explicit
material and nudity. Docket 126 at 77. Maday does not challenge the
pornography policy on its face, but, rather, as applied to the censorship of this
specific magazine.
“In such an as-applied challenge, [the court] consider[s] whether a ban
on these particular items is reasonably related to a legitimate penological
objective.” Murchison v. Rogers, 779 F.3d 882, 887 (8th Cir. 2015) (internal
quotation omitted) (emphasis in original). “Prison officials have broad discretion
to censor or restrict an inmate’s receipt of a publication to serve a legitimate
penological interest[.]” Id. The court must conduct an independent review of the
evidence to determine whether defendants’ decision to apply the regulation and
43

withhold this magazine was an “ ‘exaggerated response to prison concerns’ and
therefore unconstitutional as applied.” Kaden v. Slykhuis, 651 F.3d 966, 969
(8th Cir. 2011) (quoting Williams v. Brimeyer, 116 F.3d 351, 354 (8th Cir.
1997)). “[S]ummary judgment [is] appropriate only if [the prison officials]
present[] some specific evidence of why this particular item implicates prison
concerns.” Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 986 (8th Cir. 2004).
The court reviewed the three versions of the 2016 magazine. Dockets
126-128, 126-129, 126-30. The policy prohibits nudity, and nudity is defined
as exposed female breasts and buttocks. Docket 126-100. The magazine
contains several pictures of exposed female breasts, i.e. the entire breast is
uncovered and only the nipple is covered by material or the models’ hands.
Docket 126-130 at 72, 79, 86, 90, 102, 141, 162. And in some pictures,
nipples are visible through sheer clothing, i.e. swimsuit top made of chain, wet
light-colored material, mesh tops. Id. at 39, 74, 147, 149. Additionally, the
magazine contains images of exposed buttocks. Id. at 38, 67, 78, 82, 84, 89,
96, 133, 138-39, 150, 163, 208. Thus, the 2016 magazine falls within the
prohibited material as contemplated by the pornography policy.
Defendants’ reasoning for restricting this specific magazine was that
“allowing Maday, a convicted sex offender, to possess the items in question
would . . . be detrimental to his treatment and rehabilitation.” Docket 126 at
82. After reviewing the material and deferring to the prison officials’ expertise,
the court finds that defendants’ censorship of the 2016 Swimsuit Edition was
reasonably related to a legitimate penological objective and was not an
44

exaggerated response to prison concerns related to this item. Murchison, 779
F.3d at 888; Kaden, 651 F.3d at 969.
As to defendants’ qualified immunity defense, the court finds that the law
regarding what may constitute “nudity” or “sexually-explicit” material was not
so clearly established that it would have put defendants on notice that their
conduct was unconstitutional. Defendants have provided case citations to
several federal district courts that have found such censorship does not violate
the Constitution. Docket 126 at 78-82; see, e.g., Heard v. Bravo, 2015 WL
13658597, at *2 (D.N.M. Aug. 24, 2015) (“The Court found that the obscenity
regulation at issue in this case does not rise to the level of a constitutional
violation and is reasonably related to legitimate penological objectives.”); Prison
Legal News v. Stolle, 2014 WL 6982470, at *16 (E.D. Va. Dec. 8, 2014)
(granting summary judgment in favor of defendants because there is no
controlling precedent that indicates that “jail is prohibited from excluding all
incoming publications containing revealing images of individuals in sexual
poses overtly intended to sexually arouse the viewer[.]”); Elfand v. Cty. of
Sonoma, 2013 WL 1007292, at *4 (N.D. Cal. Mar. 13, 2013) (upholding the
constitutionality of a jail’s censorship of issues of Maxim Magazine and GQ
Magazine that displayed pictures of women and men in “underwear, bikinis,
and tight and scant clothing revealing breasts and buttocks” to include an
image of a woman in a “see-through bra and ‘thong’ underwear with her
buttocks raised”); Woods v. Dir.’s Review Comm., 2012 WL 1098365, at *1, *4
(S.D. Tex. Mar. 30, 2012) (concluding that the defendants were entitled to
45

qualified immunity in a case challenging a Texas prison’s censorship of nude
photos that had been “blurred in such a way as to disguise or cover up any
exposed nudity,” and noting that there was “no clear statement” in the law that
would put an official on notice that it was unlawful to ban such images). Maday
provided no case law to support his position.
Thus, the court grants summary judgment in favor of defendants based
on qualified immunity on Maday’s monetary damages claim for his 2016
magazine.
3.

Injunctive Relief / Official Capacity Claim

In addition to his request for monetary damages for defendants’
confiscation of his 2016 Sports Illustrated magazine, Maday requests “an order
from this court requiring the South Dakota DOC to change its vague policy on
censorship and allow photos into its facilities that meet the requirements of the
[BOP’s] definition[.]” Docket 1 ¶ 154. Maday sued defendants in their individual
and official capacity. Id. ¶¶ 5-38.
Qualified immunity only protects defendants from claims for monetary
relief in their individual capacity. Hafer v. Melo, 502 U.S. 21, 25 (1991). “[S]tate
officials may be sued in their official capacity for equitable relief.” Grantham v.
Trickey, 21 F.3d 289, 295 (8th Cir. 1994). Defendants failed to address Maday’s
injunctive relief claim against defendants in their official capacity. Defendants
did not provide any argument on whether a constitutional right exists in
general, did not provide any discussion on the supporting rationale to South
Dakota DOC’s pornography policy, and they did not discuss the Turner factors.
46

See Turner v. Safley, 482 U.S. 78, 89-91 (1987). Thus, Maday’s injunctive relief
claim as to defendants in their official capacity survives summary judgment.
B.

February 2015 Sports Illustrated Magazine

In his complaint, Maday alleges that St. Pierre violated his First
Amendment rights when she confiscated his 2015 Sports Illustrated Swimsuit
Edition magazine. Docket 1 ¶ 138. In the report and recommendation,
Magistrate Judge Duffy recommended granting summary judgment in favor of
defendants based on qualified immunity for this claim’s monetary damages.
Docket 188 at 56. As to Maday’s request for injunctive relief for this claim,
Magistrate Judge Duffy recommended that Maday’s request for injunctive relief
against defendants in their official capacities survives summary judgment. Id.
at 57.
Maday makes several objections to this portion of the report and
recommendation. Docket 192 at 10-11. First, Maday objects to Magistrate
Judge Duffy’s discussion of his argument that inmates are still able to obtain
pornographic images through their electronic tablets. Id. at 10. Magistrate
Judge Duffy stated that she did not need to address this issue because the fact
that defendants’ pornography policy can be evaded does not render it
unconstitutional or that defendants are granting permission to possess
pornography. Docket 188 at 55. Maday argues that there can be no legitimate
penological interest in denying such items when defendants are providing the
same content elsewhere. Docket 192 at 11.

47

“[T]he mere fact that other similar materials depicting [sexually explicit
conduct] exist within the prison walls does not preclude summary judgment on
the basis that this [sexually explicit] material violates prison regulations.”
Murchison, 779 F.3d at 890. “The existence of similar material within the
prison walls may serve to show inconsistencies in the manner in which
material is censored such as to undermine the rationale for censorship or show
it was actually censored for its content.” Id. Maday alleges that defendants
provide images of fully exposed female breasts to inmates. Docket 174 at 16.
Maday alleges inmates can access such images by purchasing the “GTL” music
app on the electronic tablets. Id. But Maday failed to present any evidence that
the same Sports Illustrated Swimsuit Edition magazine was available to anyone
else in the prison. Although Maday has alleged that a few materials were
available in the prison which demonstrates at least some inconsistency in the
manner of censoring such material, Maday has not “demonstrated
inconsistencies that rise to a level of randomness or that undermine the
rationale for censoring this particular item.” Murchison, 779 F.3d at 890. Thus,
this objection is overruled.
For his second objection, Maday argues that Magistrate Judge Duffy
impermissibly afforded more weight to defendants’ affidavits that they rectified
the issue of inmates obtaining sexually explicit material from their tablets.
Docket 192 at 11. Maday argues that defendants’ allegations of a solution are
genuine issues of material fact. Id. In the report and recommendation,
Magistrate Judge Duffy specifically stated that she did not need to resolve the
48

dispute between defendants’ and Maday’s alleged facts for this issue. Docket
188 at 55. Because Magistrate Judge Duffy did not make a determination on
this issue and for the reasons stated above on the availability of other
prohibited material, this objection is overruled.
For his third objection, Maday argues that Magistrate Judge Duffy
“simply [took] defendants’ assertions as an article of faith that their actions are
serving a legitimate penological interest.” Docket 192 at 11. Maday alleges that
the first Turner factor requires statistics that demonstrates a difference
between the number of harassment incidents against female staff before and
after the pornography ban. Id.
Here, defendants do not need to present statistical evidence that
harassment incidents have decreased since the ban. The Eighth Circuit Court
of Appeals has held that “Turner does not require ‘actual proof that a legitimate
interest will be furthered by the challenged policy,’ only that the interest being
served and the policy have an ‘objectively rational’ connection.” Ortiz v. Fort
Dodge Corr. Facility, 368 F.3d 1024, 1027 (8th Cir. 2004) (quoting Herlein v.
Higgins, 172 F.3d 1089, 1091 (8th Cir.1999)). “[P]rison policies may be
legitimately based on prison administrators’ reasonable assessment of potential
dangers.” Prison Legal News v. Livingston, 683 F.3d 201, 216 (5th Cir. 2012)
(emphasis in original). Defendants’ asserted legitimate penological interest is to
avoid creating a sexualized atmosphere in the prison. Docket 126 at 82. They
allege that allowing convicted sex offenders, like Maday, to possess such items
would be detrimental to the inmates’ treatment and rehabilitation. Id. The
49

court finds “that the interest advanced here was not dependent on a showing of
previous harms based on the same material.” Murchison, 779 F.3d at 890.
Thus, this objection is overruled.
Because the court overruled all of Maday’s objections, the court adopts
Magistrate Judge Duffy’s analysis and conclusion as to this claim. The court
grants summary judgment in favor of defendants on this claim for monetary
damages based on qualified immunity. As to Maday’s claim for injunctive relief
for this claim, the court finds that it survives summary judgment.
C. Hardcover Books
In his complaint, Maday alleges that his First Amendment rights were
violated by Stratman when two hardcover books sent to Maday were denied per
“an arbitrary policy.” Docket 1 ¶ 140. Magistrate Judge Duffy recommended
that the court grant summary judgment in favor of defendants. Docket 188 at
62.
Maday makes six objections to this portion of the report and
recommendation. First, Maday objects to Magistrate Judge Duffy’s analysis
that the hardcover book ban is reasonably related to legitimate penological
objectives of security and prevention of contraband. Docket 192 at 12 (citing
Docket 188 at 58). Maday argues that Magistrate Judge Duffy “takes it as an
article of faith” that defendants are correct when they state there is a legitimate
penological interest. Id. He argues that this is a genuine issue of material fact.
Id.

50

“[Reviewing courts] must accord substantial deference to the professional
judgment of prison administrators, who bear a significant responsibility for
defining the legitimate goals of a corrections system and for determining the
most appropriate means to accomplish them.” Overton v. Bazzetta, 539 U.S.
126, 132 (2003). The Eighth Circuit has held that the need for institutional
security is a legitimate penological interest. Ivey v. Ashcroft, 1995 WL 486565,
at *1 (8th Cir. 1995). Here, defendants stated that “[s]uch books are considered
a threat to security within the prison. Not only can such books be used as a
weapon, contraband can easily be hidden inside the binding.” Docket 128 ¶ 14.
Such rationale was upheld by the United States Supreme Court. See Bell v.
Wolfish, 441 U.S. 520, 551 (1979) (“[H]ardback books are especially serviceable
for smuggling contraband into an institution; money, drugs, and weapons
easily may be secreted in the bindings . . . . They also are difficult to search
effectively.”).
“The burden, moreover, is not on the State to prove the validity of prison
regulations but on the prisoner to disprove it.” Overton, 539 U.S. at 132. In his
objections, Maday attempts to disprove the validity of the policy. Docket 192 at
11-12. Maday argues that there can be no legitimate penological interest
because defendants provide thousands of hardcover books in the prison
library. Id. Also, Maday notes that defendants do not argue that their staff is
“too incompetent” to search the books for contraband. Id. at 12; Docket 174 at
17. Besides these conclusory statements and hypothetical situations, “[t]here is
simply no evidence in the record to indicate that [South Dakota DOC] officials
51

have exaggerated their response to this security problem and to the
administrative difficulties posed by the necessity of carefully inspecting each
book mailed from unidentified sources.” Bell, 441 U.S. at 551. Thus, Maday
failed to meet his burden of disproving the validity of the prison regulation.
This objection is overruled.
For his second objection, Maday alleges that Magistrate Judge Duffy’s
and defendants’ interpretation of Bell is “skewed” and Bell is inapplicable to the
present case. Docket 192 at 12. Maday cites and discusses a paragraph from
Bell where the Supreme Court summarizes the lower courts’ decisions and
quotes the prison warden’s affidavit (see id. at 12)—this is not the Supreme
Court’s holding or analysis, it is simply a summary of the procedural history.
See Bell, 441 U.S. at 549. The Supreme Court reversed the lower courts and
upheld the policy. Id. at 550-52, 563. Therefore, Maday’s interpretation of Bell
is incorrect.
Maday argues that he “was denied delivery of two hardcover books that
were sent directly from a publisher in full compliance of the ruling in Bell.”
Docket 192 at 12. Maday contends that Magistrate Judge Duffy ignored Bell’s
holding. Id. at 13. Maday states that the Supreme Court in Bell held that “the
denial of delivery of books sent from a publisher, book club or bookstore was a
violation of an inmates First Amendment rights.” Id.
In Bell, the Supreme Court held, “[A] prohibition against receipt of
hardback books unless mailed directly from publishers, book clubs, or
bookstores does not violate the First Amendment rights of MCC inmates.” Bell,
52

441 U.S. at 550. In its analysis, the Court noted that the prison’s policy
allowed for the pre-trial detainees to receive hardcover books from publishers,
book stores, and book clubs. Id. at 552. Nowhere in its opinion did the Court
state that a policy that prohibits hardcover books from a publisher, book club,
or bookstore would violate an inmate’s First Amendment right. Maday’s
assertion that that is the holding in Bell is incorrect.
Here, the DOC policy prohibits all hardcover books from entering the
prison. Docket 126-105. The fact that the policy upheld by the Supreme Court
in Bell is distinguishable from the present policy does not render the present
policy unconstitutional. Here, a more restrictive policy for prison inmates is
comparable to the less restrictive policy in Bell where the plaintiff was a pretrial detainee. See Bell, 440 U.S. at 552 (“We are also influenced in our decision
by the fact that the rule’s impact on pretrial detainees is limited to a maximum
period of approximately 60 days.”); Walton v. Dawson, 752 F.3d 1109, 1117
(8th Cir. 2014) (“The Constitution affords greater protection to a pretrial
detainee compared to a convicted inmate . . . .”). Thus, this objection is
overruled.
For his third objection, Maday objects to Magistrate Judge Duffy’s
analysis of searching hardcover books. Docket 192 at 13. Maday argues that
this discussion shows Magistrate Judge Duffy’s prejudicial bias against him
because she makes this argument for defendants. Id. (citing Docket 188 at 62).
In reviewing this section of the report and recommendation, the court does not
see how Magistrate Judge Duffy’s analysis is an argument for defendants.
53

Instead, Magistrate Judge Duffy addresses Maday’s argument that attempts to
disprove the validity of the regulation. See Docket 188 at 61-62. Maday argued
that defendants could search the hardcover books to ensure no contraband
was hidden. Docket 192 at 13. Magistrate Judge Duffy provided two case
citations where the courts noted the disadvantages of requiring prison officials
to search such books. Docket 188 at 62 (citing Bell, 441 U.S. at 549, 551; Pfeil
v. Lampert, 603 F. App’x 665, 669 (10th Cir. 2015)). The court finds that the
cases cited support Magistrate Judge Duffy’s reliance on them. Thus, this
objection is overruled.
Next, Maday objects to Magistrate Judge Duffy’s statement that “a
number of courts have premised their denial of First Amendment claims
regarding hardbound books on the inmates’ failure to establish there was no
reasonable alternative.” Docket 192 at 13 (citing Docket 188 at 60). Maday
argues that the circumstances of the instant case are considerably different
from the cited cases because MDSP’s library allows prisoners to check out
hardcover books “without restriction.” Id. Maday states that the cited cases do
not state whether the libraries in those cases contained hardcover books. Id.
The court agrees with Maday’s statement; in the court’s review of the cited
cases, none of the cases states whether the libraries contained hardcover
books. But in all the cases some hardcover books were allowed or present in
the institutions. See Dunlap v. Losey, 40 F. App’x 41, 43 (6th Cir. 2002)
(finding plaintiff failed to state a claim for the temporary deprivation of his
hardcover Bible); Leachman v. Thomas, 2000 WL 1239126, at *4 (5th Cir. 2000)
54

(per curiam) (noting there are exceptions to the policy and several types of
hardcover books are allowed); Brownlee v. Conine, 957 F.2d 353, 354 (7th Cir.
1992) (stating plaintiff has access to hardcover law books in the jail’s law
library). Thus, the court finds Magistrate Judge Duffy’s citation to these cases
was proper. This objection is overruled.
Additionally, Maday argues that there is a genuine issue of material fact
the jury must address. Docket 192 at 13. There is no dispute that MDSP allows
prisoners to check out hardcover books from the library. Docket 174 at 17;
Docket 128 ¶¶ 14-15, 19. This fact goes against Maday’s position as discussed
by Magistrate Judge Duffy. See Docket 188 at 61. The fact that MDSP has
numerous books—that have previously been searched for contraband by
defendants and likely are searched again when the items are checked in to the
library—shows that Maday had reasonable alternatives for receiving the books
he was denied. Thus, this objection is overruled.
Maday also objects to Magistrate Judge Duffy’s statement that Maday
could have checked the books out in the prison library if available. Docket 192
at 13-14 (citing Docket 188 at 61). Maday argues that Magistrate Judge Duffy
is arguing on behalf of defendants. Id. at 13. Defendants make this argument
in their brief and various affidavits, “Maday had alternative means of obtaining
reading material, such as a relatively large prison library . . . .” Docket 126 at
88; see, e.g., Docket 128 ¶¶ 18-19. Thus, this objection is overruled.
Lastly, Maday objects to Magistrate Judge Duffy’s discussion of
reasonable alternatives to the confiscated books. Docket 192 at 13-14 (citing
55

Docket 188 at 61). In the report and recommendation, Magistrate Judge Duffy
states that Maday could have requested the donors send him the books in
softcover from the publishers or Maday could have ordered the books in
softcover himself. Docket 188 at 61. Maday argues that these statements show
Magistrate Judge Duffy’s disdain for Maday and “misses the point that the
books were gifts.” Docket 192 at 14 (emphasis omitted). In applying Turner to
First Amendment claims, one factor courts must consider is “whether
alternative means are open to inmates to exercise the asserted right[.]” Overton,
539 U.S. at 132 (citing Turner, 482 U.S. at 89-91). “Where other avenues
remain available for the exercise of the asserted right, courts should be
particularly conscious of the measure of judicial deference owed to corrections
officials . . . in gauging the validity of the regulation.” Turner, 482 U.S. at 90
(internal quotations omitted). “Alternatives . . . need not be ideal, however; they
need only be available.” Overton, 539 U.S. at 135. Here, Magistrate Judge Duffy
listed all the readily-available alternatives Maday could have used to obtain the
two books. See Docket 188 at 61. Magistrate Judge Duffy did not need to
consider the specific reasoning why the books were sent to Maday, only
whether alternatives existed. Thus, this objection is overruled.
Because the court overruled all Maday’s objections for his hardcover
books claim, the court adopts Magistrate Judge Duffy’s analysis and
conclusion. The court grants summary judgment in favor of defendants on this
claim.
D. Denial of Mail Because it Contained Colored Paper
56

In his amended complaint, Maday alleges that Grosshuesch violated
Maday’s First Amendment rights when a letter sent to Maday was rejected
because it contained contraband—colored paper. Docket 94 at 7-8, 17. In the
report and recommendation, Magistrate Judge Duffy recommended the court
grant summary judgment on this claim. Docket 188 at 65.
Maday makes two objections to this portion of the report and
recommendation. Docket 192 at 14. First, Maday objects to Magistrate Judge
Duffy’s finding that Maday did not raise a constitutional issue. Id. Magistrate
Judge Duffy found that Maday did not raise a constitutional issue because
Maday claimed that defendants did not follow their own policy for handling
mail containing contraband. Docket 188 at 62. Maday argues that he did raise
a constitutional violation because the denial of mail violates the First
Amendment. Docket 192 at 14.
In reviewing his amended complaint, the court agrees with Magistrate
Judge Duffy’s interpretation of Maday’s claim. Maday alleges that once
defendants determined the letter violated the policy, he should have been given
the opportunity to direct defendants on how to handle the allowed items
according to policy 1.5.D.3. Docket 94 at 7-8. He alleges that he was not given
this option. Id. The court interprets this claim as defendants’ failure to follow
their own policy. “A violation of prison policy alone does not give rise to section
1983 liability.” Moore v. Rowley, 126 F. App’x 759, 760 (8th Cir. 2005); see also
Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997) (no § 1983 liability for
violating prison policy).
57

As to Maday’s argument that the denial of mail violates the First
Amendment, “inmates have a right to receive mail[.]” Weiler v. Purkett, 137 F.3d
1047, 1050 (8th Cir. 1998) (citing Turner, 482 U.S. at 89, 92). But “that right
may be limited by prison regulations that are reasonably related to legitimate
penological interests.” Id. Defendants assert that the limitations on colored
paper were put in place “to impede the introduction of narcotics and synthetic
narcotics into the SDDOC facilities through the use of colored paper in greeting
cards.” Docket 126 at 90; Docket 129 ¶ 7. “Officials with the SDDOC had
reason to believe that suboxone, methamphetamine, LSD and other narcotics
were capable of being smuggled into prison using greeting cards and colored
paper.” Docket 129 ¶ 7. The Supreme Court has held that “deterring the use of
drugs . . . within the prisons” is a legitimate interest. Overton, 539 U.S. at 134.
Defendants’ limitation of what type of paper correspondence can be sent in is
reasonably related to the legitimate penological interest of deterring drug use.
Thus, this objection is overruled.
Second, Maday objects to Magistrate Judge Duffy’s summary of
defendants’ argument. Docket 192 at 14. In the report and recommendation,
Magistrate Judge Duffy states that “defendants assert they have a legitimate
penological objective.” Docket 188 at 64. Maday argues that Magistrate Judge
Duffy made this argument for defendants. Id. Yet, as noted above, defendants
provided this argument in their brief and supporting affidavit of Kaemingk.
Docket 126 at 90; Docket 129 ¶ 7. Also, Maday argues that a penological
interest cannot exist when there is a retaliatory act and that this is a genuine
58

issue of material fact. Docket 192 at 14. In his objections to the report and
recommendation and his amended complaint, Maday alleges a retaliatory
action by Grosshuesch in denying the letter from Dr. Nelson. Id.; Docket 94 at
19.
Maday presents no facts to support this retaliation claim. Instead, Maday
states that the policy Grosshuesch cited in his affidavit (Docket 126-120)
became effective on April 17, 2018, but Grosshuesch’s rejection notice is dated
March 13, 2018. The court reviewed policy 1.5.D.3. Docket 126-120. The policy
was revised on April 17, 2018. Id. at 19. The revisions from April of 2018 do not
appear to have changed the colored paper restrictions. See id. Thus, the fact
that the policy prohibited colored paper before Maday filed the current action
goes against his retaliation claim.
Because Maday failed to present evidence to support his retaliation
claim, Maday speculates that Grosshuesch rejected the letter in retaliation for
Maday filing this action. Speculative and conclusory allegations cannot support
a retaliation claim. Cooper v. Schriro, 189 F.3d 781, 784 (8th Cir. 1999) (per
curiam); Atkinson v. Bohn, 91 F.3d 1127, 1129 (8th Cir. 1996) (per curiam).
Additionally, the court previously stated that defendants presented a rational
penological concern for restricting colored paper. See Sisneros v. Nix, 95 F.3d
749, 752-53 (8th Cir. 1996) (stating plaintiff could not satisfy the test for
retaliation because his transfer was motivated by rational penological
concerns); Goff v. Burton, 7 F.3d 734, 738 (8th Cir. 1993) (“[I]f the discipline
which the prisoner claims to have been retaliatory was in fact imposed for an
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actual violation of prisoner rules or regulations, then the prisoner's claim that
the discipline was retaliatory in nature must fail.”). Thus, this objection is
overruled.
Because the court overruled all of Maday’s objections to his denial of
mail claim, the court adopts Magistrate Judge Duffy’s analysis and conclusion.
The court grants summary judgment in favor of defendants on this claim.
E. Rejection of Letter from Maday’s Brother
In his amended complaint, Maday alleges that Grosshuesch violated his
First Amendment rights when a letter sent to Maday was refused and returned
to sender. Docket 94 at 8, 17. In the report and recommendation, Magistrate
Judge Duffy recommended that the court grant summary judgment on this
claim. Docket 188 at 68.
Maday makes two objections to this portion of the report and
recommendation. He argues that this denial is a violation of his First
Amendment rights and is “exacerbated by the fact that it was a retaliatory act.”
Docket 192 at 14. In the report and recommendation, Magistrate Judge Duffy
found that Maday did not state a constitutional claim because she interpreted
his claim as defendants’ failure to follow the policy. Docket 188 at 65. Maday’s
amended complaint alleges that he never received notice from the mailroom
that the letter from his brother was rejected. Docket 94 at 8. In response to
Maday’s IRR, Vogit stated that when it is apparent that a letter contains
contraband, the letter will be rejected without being opened. Id. Maday alleged
that “this [was] contrary to policy[.]” Id. He argues that policy 1.5.D.3 provides
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that incoming letters will be opened and inspected. Id. The court interprets
Maday’s claim as defendants’ failure to follow their own policy. For the reasons
stated above, defendants’ failure to follow their own policy is not a
constitutional claim. See Moore, 126 F. App’x at 760. This objection is
overruled.
As to the retaliatory act claim, Maday again fails to present evidence to
support the claim. In his affidavit, Maday states that defendants cite to the
current version of policy 1.5.D.3 that went into effect on April 17, 2018. Docket
174 at 88. He alleges that “the complete denial of the correspondence . . . was
therefore, more likely than not, an act of retaliation by Defendant
Grosshuesch.” Id. The court cannot find any facts submitted by Maday to
demonstrate that Grosshuesch rejected the mail in retaliation for Maday’s filing
of the case and not because of legitimate penological reasons as contemplated
by the policy. As stated above, conclusory and speculative allegations cannot
support a retaliation claim. Cooper, 189 F.3d at 784. Thus, this objection is
overruled.
Because the court overruled all of Maday’s objections to the rejection of
his brother’s letter, the court adopts Magistrate Judge Duffy’s analysis and
conclusion as to this claim. The court grants summary judgment in favor of
defendants.
F. Denial of Access to the Courts Claims
In his complaint, Maday alleges that South Dakota DOC staff, Dooley,
Stanwick-Klimek, Schieffer, Reyes, Catherine Schlimgen, and Wisconsin DOC
61

staff, Jon E. Litscher, Katharine A. Ariss, and Thomas P. Maloney, denied him
access to Wisconsin case law and other legal resources that caused him to
miss his deadline to file a writ of certiorari to the United States Supreme Court
and prevented him from filing his Wisconsin state habeas petition. Docket 1 ¶¶
100-03, 141. Maday alleges that these actions are a violation of his First, Fifth,
Sixth, and Fourteenth Amendment rights. Id. ¶ 141. In the report and
recommendation, Magistrate Judge Duffy recommended that the court grant
summary judgment in favor of defendants on all of Maday’s denial of access to
the courts claims. Docket 188 at 77.
Maday made several objections to this portion of the report and
recommendation. Docket 192 at 14-18. Many of the objections are to nondispositive matters, and therefore, the court will not address them. The court
finds that there are four substantive objections. First, Maday objects to
Magistrate Judge Duffy’s summary of the procedural history of Maday’s
criminal case and post-conviction relief. Id. at 14 (citing Docket 188 at 71).
Maday argues that Magistrate Judge Duffy affords preferential treatment to
materials submitted by defendants when the information is “clearly erroneous.”
Id. In the report and recommendation, Magistrate Judge Duffy stated that
“defendants have provided the context necessary to evaluate Mr. Maday’s
claims.” Docket 188 at 71. Maday argues that his verified complaint provides
the context necessary to evaluate his claim. Docket 192 at 14.
In support of the court’s procedural history summary, Magistrate Judge
Duffy cites to materials in the record submitted by defendants. See Docket 188
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at 71-73. This evidence includes: the United States District Court for the
District of Wisconsin’s opinion and order (Docket 126-125); the case summary
of Maday’s criminal conviction in Columbia County, Wisconsin from the
Wisconsin courts’ website (Docket 126-126); the Wisconsin Supreme Court’s
opinion (Wisconsin v. Maday, 892 N.W.2d 611 (Wis. 2017)); the Wisconsin
Court of Appeal’s opinion (Wisconsin v. Maday, 2015 WL 6509465 (Wis. Ct.
App. Oct. 29, 2015)). Maday’s verified complaint (Dockets 1, 94) and affidavit
(Docket 174) provide no facts about the procedural history of Maday’s case.
Additionally, Maday did not dispute the evidence submitted by defendants.
Thus, the court finds all the information contained within the record is
properly considered. Fed. R. Civ. P. 56(e)(2). Thus, this objection is overruled.
Maday notes that Magistrate Judge Duffy provides two erroneous
statements in her summary. First, Maday states that Magistrate Judge Duffy
was incorrect when she stated that Maday’s counsel filed a state habeas
petition. Docket 192 at 14 (citing Docket 188 at 71-72). Maday alleges that his
appellate counsel filed a direct appeal. Id. The Wisconsin case summary shows
that a motion for postconviction relief under Wis. Stat. Ann. § 809.30 was filed
by Maday’s counsel on October 23, 2014. Docket 126-126 at 6. On December
10, 2014, Andrew W. Voigt noted an event in the court summary entitled “Writ
of Habeas Corpus” and issued his order denying Maday’s motion for postconviction relief on February 2, 2015. Id. at 5. The court does not need to
resolve this dispute as it is not dispositive.

63

Second, Maday argues that Magistrate Judge Duffy incorrectly states
that Maday’s petition was filed on December 10, 2014. Docket 192 at 14-15
(citing Docket 188 at 72 n.13). The court’s review of the evidence shows that
the report and recommendation incorrectly recites this fact. Assistant State
Public Defender, Steven D. Grunder, filed Maday’s motion for postconviction
relief on October 23, 2014. Docket 126-126 at 6; see Docket 126-126 at 1, 6
(noting Grunder represented Maday from November 24, 2014 to April 15,
2015). Andrew W. Voigt was the judge presiding over the motion. See id. at 5
(order by Voigt allowing C.M. to visit Maday). Thus, the court modifies this
portion of the report and recommendation to state that Assistant State Public
Defender, Steven D. Grunder, filed Maday’s motion for postconviction relief on
October 23, 2014. Overall, both of these errors in the report and
recommendation are non-dispositive.
For Maday’s second substantive objection, Maday objects to Magistrate
Judge Duffy’s finding that defendants satisfied their obligation to provide
access to the courts because Maday had counsel throughout his first state
habeas proceeding. Docket 192 at 16 (citing Docket 188 at 74). Maday argues
that there is no rational reason why Magistrate Judge Duffy thinks that a
defendant has no right to assist his attorney with preparation of a criminal
defense. Id. The right of access to the courts may be protected where prison
officials either provide prisoners with adequate law libraries or provide them
with assistance from persons trained in the law. Bounds v. Smith, 430 U.S.
817, 828 (1977). Here, Magistrate Judge Duffy is correct that defendants did
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not need to provide Maday with access to legal resources because he was
represented by counsel. This objection is overruled.
Next, Maday objects to Magistrate Judge Duffy’s finding that Maday was
not entitled to Wisconsin law in order to pursue a petition for a writ of
certiorari. Docket 192 at 17 (citing Docket 188 at 74-75). Maday argues that
“[d]espite Magistrate [Judge] Duffy’s assertion to the contrary,” Wisconsin
statutes and administrative code provide that plaintiff should have been
granted access to Wisconsin legal resources from the first day of his
incarceration in South Dakota. Id. The statutes and codes relied upon by
Maday do not state that Maday must be given access to legal materials. See id.
(citing Wis. Stat. Ann. §§ 301.21(1m)(a)(10), 302.25(4)(e), 302.26; Wis. Admin.
Code DOC § 309.155). Generally, the sources say that inmates confined
outside of Wisconsin have the same legal rights as inmates confined in
Wisconsin. See Wis. Stat. Ann. § 302.25(4)(e). “The fact of confinement in a
receiving state shall not deprive any inmate so confined of any legal rights
which said inmate would have had if confined in an appropriate institution of
the sending state.” Id. Even if Maday was held in custody in a Wisconsin
prison, Maday had no legal right to access legal resources because he was
represented by counsel. See Bounds, 430 U.S. at 828; Wise v. Kaiser, 371 F.
App’x 673, 674 (7th Cir. 2010) (“Because access to legal materials is required
only for unrepresented litigants, the state was not required to provide
[represented defendant] with anything more.” (internal quotation omitted)). The
fact that the South Dakota DOC did not grant Maday access to Wisconsin legal
65

resources did not deprive him of any legal right that an inmate in Wisconsin
would have.
Additionally, the Wisconsin administrative codes state the requirements
for providing inmates access to the judicial process and legal materials. See
Wis. Admin. Code DOC § 309.155. “[P]rison law libraries and legal assistance
programs are not ends in themselves, but only the means for ensuring ‘a
reasonably adequate opportunity to present claimed violations of fundamental
constitutional rights to the courts.’ ” Lewis v. Casey, 518 U.S. 343, 351 (1996)
(quoting Bounds, 430 U.S. at 825). Defendants complied with the
administrative code because they did not interfere with Maday’s
communication with and representation by his appointed counsel. Wisconsin
law does not require defendants to provide Maday with representation to
counsel and access to legal resources. This objection is overruled.
Lastly, Maday objects to a footnote contained in Magistrate Judge Duffy’s
discussion that Maday did not exhaust his administrative remedies as it
applies to Maday’s denial of legal mail claim. Docket 192 at 18 (citing Docket
188 at 75 n.14). In the report and recommendation, Magistrate Judge Duffy
recommended the court dismiss Maday’s legal mail claim because he did not
file an AR and therefore, did not exhaust his administrative remedies. Docket
188 at 75. Maday does not object to this conclusion by Magistrate Judge Duffy.
Instead, Maday objects to the footnote where Magistrate Judge Duffy applied
policy 1.5.D.3 to the letter Maday addressed to the Wisconsin State Bar. Id. at
75 n.14; Docket 192 at 18. Maday argues that Magistrate Judge Duffy litigates
66

for defendants when she states that the letter is not considered legal mail
under the policy. Docket 192 at 18.
Though Maday did not object to Magistrate Judge Duffy’s failure to
exhaust administrative remedies finding, the court finds that Maday exhausted
his administrative remedies. In response to defendants’ arguments that he did
not exhaust, Maday stated that he was unable to file an AR because DeJong
refused to provide him with a form. Docket 174 at 96. “Inmates are excused
from exhausting remedies when officials have prevented prisoners from
utilizing the procedures[.]” Porter, 781 F.3d at 452 (internal quotation omitted).
Because DeJong prevented Maday from completing an AR, the court finds that
Maday exhausted all the remedies available to him.
In reviewing Maday’s claim that defendants denied him access to the
court by failing to mail the letter addressed to an attorney at the Wisconsin
State Bar address, the court agrees with Magistrate Judge Duffy’s analysis in
the footnote. See Docket 188 at 75 n.14. Maday argues that the letter is legal
mail because it was addressed to an attorney and he should not have to pay
postage. Docket 127 ¶¶ 42-43. The letter is addressed to “Atty Deanne M. Koll
c/o State Bar of WI.” Docket 173-1 at 24. The address on the letter is the
mailing address to the State Bar of Wisconsin. Docket 127 ¶ 44.
The policy defines privileged or legal correspondence as mail directly to or
from a court, judge, or attorney. Docket 126-120 at 2. Attachment 1 to policy
1.5.D.3 provides examples of outgoing correspondences that are not considered
legal mail; the South Dakota State Bar association is listed as an example.
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Docket 127 ¶¶ 42-43. Thus, if mail sent to the South Dakota State Bar
Association is not legal mail, then mail sent to the Wisconsin State Bar
Association is not legal mail. If Maday sent the letter directly to attorney
Deanne Koll’s office, it would be classified as legal correspondence under the
policy. Furthermore, defendants did not prohibit Maday from sending this
letter in its entirety; they returned the letter to Maday and asked him to pay for
postage. Requiring Maday to pay postage for a non-legal letter does not
constitute a denial of Maday’s access to the courts. Thus, Maday’s objection as
it pertains to Magistrate Judge Duffy’s analysis on the policy is overruled.
Because the court overruled all of Maday’s objections to his denial of
access to the courts claims, the court adopts Magistrate Judge Duffy’s analysis
and conclusion. The court grants summary judgment in favor of defendants on
the denial of access to Wisconsin law claim. Additionally, Maday did not object
to Magistrate Judge Duffy’s findings as it pertains to the elimination of the
contract attorney and the law library. Thus, the court adopts the report and
recommendation as it pertains to these claims, and grants summary judgment
in favor of defendants on the contract attorney and law library claims.
As to the legal mail claim, the court modifies Magistrate Judge Duffy’s
report and recommendation to state that Maday exhausted his administrative
remedies on his legal mail claim, and the court grants summary judgment on
the legal mail claim

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G. Retaliation Claims
In his complaint, Maday alleges that defendants Klimek, Cropper,
Thomas Huitema, Grosshuesch, and Michael Meyer retaliated against him by
placing him in the SHU, interfering with his mail, and taking his personal
property because Maday filed complaints and grievances. Docket 1 ¶¶ 142-43;
Docket 94 at 10-12, 18-19. In the report and recommendation, Magistrate
Judge Duffy recommended that the court grant summary judgment on all
Maday’s retaliation claims. Docket 188 at 84, 87-88. Maday filed three
objections to the portion of the report and recommendation that discusses the
SHU and the mail. Docket 192 at 18. Because Maday does not object to
Magistrate Judge Duffy’s findings about the arch support retaliation claim
(Docket 188 at 87), the court adopts the report and recommendation and
grants summary judgment on this claim.
A. Segregation in the SHU
The first two objections relate to the claims of being placed in the SHU.
First, Maday objects to Magistrate Judge Duffy’s conclusion that summary
judgment should be granted. Docket 192 at 18. Maday argues that he provided
an affidavit and exhibits that showed defendants acted in a “questionable
manner” and thus, raises a genuine issue of material fact. Id.
To establish a retaliation claim, Maday must “show (1) he engaged in a
protected activity, (2) the government official took adverse action against him
that would chill a person of ordinary firmness from continuing in the activity,
and (3) the adverse action was motivated at least in part by the exercise of the
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protected activity.” Spencer v. Jackson Cty., 738 F.3d 907, 911 (8th Cir. 2013)
(quoting Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004)). In order to
succeed on a retaliation claim, a plaintiff must show that the “adverse action
taken against him was ‘motivated at least in part’ by his protected activity
. . . .” Id. (quoting Revels, 382 F.3d at 876). Although “ ‘[t]he causal connection
is generally a jury question, . . . it can provide a basis for summary judgment
when the question is so free from doubt as to justify taking it from the jury.’ ”
Beaulieu v. Ludeman, 690 F.3d 1017, 1025 (8th Cir. 2012) (alteration in
original) (quoting Revels, 382 F.3d at 876).
Maday’s affidavit and exhibits provide very little facts for the court to find
that his placement in the SHU on two occasions was “motivated at least in
part” by his protected activity. In his complaint, Maday alleges that on January
9, 2017, he filed a second grievance with PREA implications concerning
“predatory homosexual behaviors.” Docket 1 ¶ 115; Docket 126-113.
Defendants do not dispute this statement. Docket 128 ¶ 35. In his complaint,
Maday alleged that he was placed in the SHU because defendants wanted to
“punish him” for filing his second PREA complaint. Docket 1 ¶ 115. Maday
provides no other facts to support his claim that the filing of the PREA
complaint was the motivating factor for the SHU placement. See Cornell v.
Woods, 69 F.3d 1383, 1387-88 (8th Cir. 1995) (holding inmate must show that
impermissible retaliation was actual motivating factor for transfer).
Conversely, defendants state Maday was sent to the SHU under policy
1.3.E.6, PREA Response and Investigation of Sexual Abuse/Harassment.
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Docket 128 ¶ 35. The policy provides that an inmate may be held in
involuntary segregated housing for a maximum of 24 hours while the
assessment is completed. Id. ¶38; see also id. ¶¶ 36-37. Later, Maday alleged
that he was placed in the SHU in January because he filed grievances against
Klimek. Docket 174 at 101. Yet Maday does not provide any evidence of said
grievances that would allow the court to see whether a causal connection
exists. Speculative and conclusory allegations cannot support a retaliation
claim. Cooper, 189 F.3d at 784; Atkinson, 91 F.3d at 1129.
As to the April 2018 SHU incident, Maday’s claim fails again. The only
evidence presented by Maday is that Sergeant Tycz lead him to the SHU and
told Maday that defendant Klimek told Tycz to put Maday in the SHU. Docket
94 at 11; Docket 172 ¶ 265. Maday was placed in a holding cell next to the
entrance of the SHU. Docket 94 at 11. Maday was released moments later
when Tycz told Maday that Maday was not supposed to be placed in the SHU.
Docket 172 ¶ 266. Maday failed to present any evidence of a protected activity
that would have been a motivating factor behind this action. Again, speculative
and conclusory allegations cannot support a retaliation claim. Cooper, 189
F.3d at 784; Atkinson, 91 F.3d at 1129. Thus, this objection to Magistrate
Judge Duffy’s recommendation to grant summary judgment is overruled.
Maday’s second objection is to Magistrate Judge Duffy’s reliance on
Klimek’s affidavit where he alleged that the April 2017 SHU incident was a
mistake. Docket 192 at 18 (citing Docket 188 at 83). Maday argues that
Magistrate Judge Duffy affords preferential treatment to defendants’ submitted
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material and is an impermissible credibility determination. Id. Maday argues
that he pointed out defendants provided contradictory information. Id.
In the report and recommendation, Magistrate Judge Duffy discusses the
April 2017 SHU incident and notes that Klimek stated this incident occurred
because of a mistake. Docket 188 at 83 (citing Docket 130 ¶¶ 41-44).
Magistrate Judge Duffy could not give preferential treatment to defendants’
materials on this issue because there was no opposing evidence in the record.
Maday and defendants presented the same facts concerning this incident.
Docket 140 ¶¶ 265-66; Docket 174 at 103. Thus, the only information
presented to the court on the rationale of the incident is defendants. And when
Maday failed to properly address defendants’ assertions of fact, Magistrate
Judge Duffy permissibly considered the facts to be undisputed. Fed. R. Civ. P.
56(e)(2). Thus, this objection is overruled.
Because the court overruled all of Maday’s objections to his SHU
retaliation claims, the court adopts Magistrate Judge Duffy’s analysis and
conclusion as to these claims. The court grants summary judgment in favor of
defendants.
B. Censorship of Maday’s Mail
In the report and recommendation, Magistrate Judge Duffy provided an
analysis and recommendation on Maday’s claim that defendants retaliated
against him by censoring his mail. Docket 188 at 87-88. Maday objects and
states that there was no reason for this analysis because he never claimed his
2015 Sports Illustrated Swimsuit Edition magazine was confiscated in
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retaliation. Docket 192 at 18. In his amended complaint, Maday makes a
general allegation that Grosshuesch retaliated against Maday after Maday
named Grosshuesch in the lawsuit by “censoring [Maday’s] mail[.]” Docket 94
at 19. If Maday states that this should not be construed as a retaliation claim,
then the court will not construe it so. Thus, this objection is sustained. The
court finds that Maday did not state or allege a retaliation claim as it relates to
the confiscation of his 2015 Sports Illustrated Swimsuit Edition magazine.
Maday did not object to any other portion of the report and
recommendation as it relates to the retaliation by censoring mail claims. The
court adopts Magistrate Judge Duffy’s analysis and conclusion as to these
claims. The court grants summary judgment in favor of defendants.
H. ADA Claims
In his complaint, Maday states four claims alleging defendants violated
the ADA. Maday’s objections only pertain to his diabetic diet, recreation, and
diabetic sock claims.
Because Maday did not object to Magistrate Judge Duffy’s other findings
under the ADA discussion, the court adopts her analysis and conclusions.
Thus, the court grants summary judgment in favor of defendants on all of
Maday’s ADA claims against each defendant whose job it is to render medical
care to inmates: Hanvey, Schroeder, Tolsma-Hanvey, Rabbass, Myer, Fejfar,
Klawitter, and all unknown employees of the DOH. Docket 188 at 91-92. The
court also grants summary judgment in favor of defendants on all ADA claims
against all defendants in their individual capacities because there is no
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individual liability under the ADA. Id. at 92. Next, the court grants summary
judgment on all claims for monetary damages under the ADA because Maday
does not allege that defendants violated his ADA rights because of intentional
discrimination. Id. at 106. The court grants summary judgment on Maday’s
punitive damages claims to the extent that the claim is based on ADA
violations because punitive damages are not allowed under the ADA. Id. As to
the mobility accommodations, the court finds that Maday’s request for
injunctive relief and declaratory relief are moot because Maday is no longer
mobility-impaired and is not entitled to compensatory damages. Id. at 114-15.
A. Recreation
In his complaint, Maday claims that defendants violated the ADA
because Maday could not use the recreation yard due to a schedule conflict
with his blood glucose level checks and the recreation yard’s uneven/rocky
terrain and broken sidewalks. Docket 1 ¶ 145. In the report and
recommendation, Magistrate Judge Duffy found that the only remedy available
to Maday on this claim was prospective injunctive relief, and thus, Maday’s
allegation based on the lack of access to recreation time/facilities was moot.
Docket 188 at 109.
Maday has two objections to this portion of the report and
recommendation. First, Maday objects to Magistrate Judge Duffy’s finding that
Maday raised a new claim in his affidavit when he stated that the recreation
yards were too crowded to use. Docket 192 at 19 (citing Docket 188 at 110).
Maday argues that Magistrate Judge Duffy misconstrues his affidavit. Id.
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Maday states that he was not attempting to amend his claim but was providing
context concerning the accommodations defendants claim they made. Id.
Maday only alleged three issues with the recreation time/facilities in his
complaint: scheduling conflict, uneven and rocky terrain, and broken
sidewalks. Docket 1 ¶¶ 123, 124, 145. Maday’s assertion about overcrowding
in the recreation yard is a new allegation that should have been placed in his
amended complaint and not in his affidavit. Even if the court considered this
allegation to be Maday providing context, it has no impact on Magistrate Judge
Duffy’s finding on this claim. Magistrate Judge Duffy’s holding was based on
mootness, not on the reasonableness of the accommodations. Docket 188 at
109-10. Thus, this objection is overruled.
Next, Maday objects to Magistrate Judge Duffy’s discussion on the new
recreation area. Docket 192 at 18 (citing Docket 188 at 108). Maday argues
that Magistrate Judge Duffy was not provided an accurate accounting on the
actual size of the recreation yard. Id. at 19. He states that based on a few
photos, Magistrate Judge Duffy assumes the recreation area is adequate. Id.
Magistrate Judge Duffy reviewed three photos submitted by defendants.
Dockets 126-91 to 126-93. Maday never disputed whether these photos were
accurate representations of the size and condition of the recreation area.
Instead, Maday’s arguments focused on the “parking lot” recreation area, which
is no longer in use, and the crowdedness of the area. Docket 174 at 78; Docket
130 ¶ 34. Because there was no evidence in the record that disputed the
adequacy of the size and condition of the recreation area, Magistrate Judge
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Duffy permissibly reviewed the photos and determined them to be adequate.
See Fed. R. Civ. P. 56(e)(2).
Because the court overruled all of Maday’s objections to his ADA
recreation claims, the court adopts Magistrate Judge Duffy’s analysis and
conclusion to this claim. The court finds Maday’s allegations based on lack of
access to recreation time/facilities is moot.
B. Diabetic Diet
In his complaint, Maday claims that the DOC and DOH violated his
rights under the ADA because they failed to provide him a diabetic diet. Docket
1 ¶ 144. In the report and recommendation, Magistrate Judge Duffy
recommended that the court grant summary judgment in favor of defendant on
Maday’s ADA diabetic diet claim. Docket 188 at 113.
Maday has one objection. He argues that Magistrate Judge Duffy made
an impermissible credibility determination when she found that Maday’s
exhibit (Docket 173-1 at 33-56) supported defendants’ position. Docket 188 at
112. Maday alleges that the highlighted portions of the report show defendants
did not provide a diabetic diet. Docket 192 at 19. Maday contends that if
Magistrate Judge Duffy interpreted the report differently, then this establishes
there is a genuine issue of material fact. Id.
This is not a disputed fact. Both parties agree that the report is an
accurate representation of the independent dietician’s investigation and survey
of the food at South Dakota’s prisons. Neither party disputes any of the facts or
statements contained in the report. In his affidavit, Maday states that CBM
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employees would hand him a heart healthy diet tray, though he was prescribed
a diabetic diet tray. Docket 174 at 48. In the report, the dietician noted that
defendants provide a diabetic-heart healthy diet—so a heart healthy diet tray
and diabetic diet tray are the same. Docket 173-1 at 40. Thus, the report
Maday relies on is the same report that negates his claim. This objection is
overruled.
Because the court overruled Maday’s objection about his ADA diabetic
diet claim, the court adopts Magistrate Judge Duffy’s analysis and conclusion.
The court grants summary judgment in favor of defendants on Maday’s ADA
diabetic diet claim.
C. Diabetic Shoes and Socks
In his complaint, Maday alleges that defendants violated the ADA when
they failed to provide him with proper fitting shoes and diabetic socks in
compliance with his medical orders. Docket 1 ¶ 146. In the report and
recommendation, Magistrate Judge Duffy recommended that the court grant
summary judgment on these claims because defendants fulfilled their
obligations to provide reasonable accommodations by giving Maday diabetic
shoes and appropriate hosiery. Docket 188 at 113-14.
Maday makes three objections to this portion of the report and
recommendation. Docket 192 at 19. First, Maday objects to Magistrate Judge
Duffy’s determination that defendants accommodated Maday by issuing him
three pairs of shoes in the first year. Id. (citing Docket 188 at 113). Maday
argues that this is incorrect because defendants issued Maday three pair of
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shoes that year for hygiene and wear-and-tear issues. Id. Regardless of the
number of replacement pairs defendants issued, there is no dispute in the facts
that Maday was issued wide shoes to accommodate his diabetes.
When Maday arrived at the SDSP, he was issued a pair of narrow canvas
shoes. Docket 1 ¶ 40. The shoes immediately caused issues. Id. Upon his
arrival to MDSP, Maday sent a kite for wider shoes. Id. ¶ 41. A few days later,
Maday was issued a pair of wide leather shoes with velcro closures. Id.; Docket
140 ¶ 17; Docket 172 ¶ 17. And once medical staff issued a medical order for
New Balances, Maday received them. Docket 1 ¶¶ 57-58; Docket 174 at 3-4.
Thus, Maday was issued two different types of shoes to accommodate his
diabetic feet between his arrival in South Dakota in August of 2013 and the
issuance of his New Balances in January of 2015. The court agrees with
Magistrate Judge Duffy and finds that defendants fulfilled their obligation for
reasonable accommodations by issuing Maday two different types of footwear
for diabetics. This objection is overruled.
Second, Maday objects to Magistrate Judge Duffy’s finding that
defendants gave Maday the diabetic socks he requested, though not the specific
brand. Docket 192 at 19 (citing Docket 188 at 113). Maday argues that he
never requested diabetic socks; he only requested better fitting socks. Id. It is
undisputed that Maday has a medical order for diabetic socks. Docket 174 at
41; Docket 126-28. The same day the medical order was issued, November 24,
2014, Maday received diabetic socks from laundry. Docket 174 at 41. It should
be noted that laundry issued socks Maday considered properly fitting at some
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point because Maday stated he was issued two pair of socks that fit
appropriately in his AR. Docket 126-31. It is also undisputed that Maday made
requests for “better fitting socks.” Docket 174 at 43; Docket 126-29; Docket
126-31. Magistrate Judge Duffy’s wording that defendants gave Maday “the
diabetic socks he requested” encompasses properly fitting diabetic socks. This
objection is overruled.
Third, Maday objects to Magistrate Judge Duffy’s finding that PA Adams
said the socks were the correct size. Docket 192 at 19 (citing Docket 188 at
113-14). Maday argues that this is not correct. This objection is the same as
the objection Maday made for his deliberate indifference sock claim. For the
reasons stated above, see supra Part I.G., this objection is overruled.
Because the court overruled Maday’s objections on his ADA diabetic
socks and shoes claims, the court adopts Magistrate Judge Duffy’s analysis
and conclusion on these claims. The court grants summary judgment in favor
of defendants.
CONCLUSION
Thus, it is ORDERED:
1. Maday’s objections (Docket 192) are overruled except as follows:
a. On Heel Pain Credibility (Docket 192 at 7).
b. On Exhaustion of Administrative Remedies for 2016 Sports
Illustrated (Docket 192 at 10).
c. On Censorship Retaliation Claim (Docket 192 at 18).
2. The report and recommendation (Docket 188) is adopted as modified.
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3. Defendants’ motions for summary judgment (Dockets 125, 145) are
granted on all claims as to all defendants except as follows:
a. On Maday’s injunctive relief claims regarding the 2015 and
2016 Sports Illustrated Swimsuit Edition magazines against
defendants St. Pierre and Grosshuesch in their official capacity.
Dated September 30, 2019.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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