Carter v. South Dakota Dept. of Corrections et al

Filing 26

ORDER granting 13 Motion to Amend; denying 25 Motion to Appoint Counsel and Screening Amended Complaint for Dismissal in Part and Directing Service in Part. Signed by Chief Judge Roberto A. Lange on 1/18/2023. Mailed to Matthew Carter with 2 blank Summons forms and 2 blank USM 285 forms. (CLR)

Case 4:22-cv-04103-RAL Document 26 Filed 01/18/23 Page 1 of 21 PageID #: 183

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

MATTHEW CARTER,

4:22-CV-04103-RAL

Plaintiff,

vs.

KELLIE WASKO,SECRETARY OF
CORRECTIONS,INDIVIDUAL AND
OFFICIAL CAPACITY;DAN SULLIVAN,

ORDER GRANTING PLAINTIFF'S
MOTION TO AMEND AND SCREENING
AMENDED COMPLAINT FOR DISMISSAL
IN PART AND DIRECTING SERVICE IN
PART

WARDEN,INDIVIDUAL AND OFFICIAL

CAPACITY; JESSICA COOK,ASSOCIATE
WARDEN,INDIVIDUAL AND OFFICIAL

CAPACITY; SAMUEL YOST,UNIT
COORDINATOR,INDIVIDUAL AND

OFFICIAL CAPACITY; CRAIG MOUSEL,
MAIL ROOM CLERK,INDIVIDUAL AND
OFFICIAL CAPACITY; TAMMY MERTENSJONES,CULTURAL SPIRITUAL

ACTIVITIES COORDINATOR,INDIVIDUAL
AND OFFICIAL CAPACITY; MARLIN'S,
INC. d/b/a CBM MANAGEMENT d/b/a

SUMMIT FOOD SERVICES,
CATERING/FOOD SERVICE PROVIDER,
INDIVIDUAL AND OFFICIAL CAPACITY;
ARAMARK CORRECTIONAL SERVICES,
LLC., CATERING/FOOD SERVICE
PROVIDER,INDIVIDUAL AND OFFICIAL
CAPACITY,
Defendants.

PlaintiffMatthew Carter filed a pro se lawsuit under 42 U.S.C. § 1983. Doc. 1. This Court

granted Carter leave to proceed in forma pauperis and ordered him to pay an initial filing fee. Doc.
6. Carter timely paid his initial filing fee on August 15, 2022. This Court screened Carter's

complaint under 28 U.S.C. § 1915A, dismissing the complaint in part and directing service upon

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defendants in part. Doc. 11. Carter now moves to amend his complaint to add new defendants
and to bring additional claims against existing defendants. Doc. 13.

Under Federal Rule of Civil Procedure 15(a)(1)(A), Carter may amend his complaint once
as a matter of course within "21 days after serving it[.]" Carter filed his motion to amend three

days after his complaint was screened and before defendants had been served.^Doc. 13. Thus,
Carter's motion to amend is within the window provided by Rule 15(a)(1)(A), and Carter may
amend his complaint. This Court will now screen Carter's additional claims under 28 U.S.C. §
1915A.

I.

1915A Screening of Amended Complaint

A.

Factual Allegations of Carter's Amended Complaint

Carter claims that Summit Food Services, the food provider at the South Dakota State

Penitentiary until October 2022, failed to accommodate his needs for a religious diet. Doc. 13-1
at 3. Carter, who professes to be a Satanist, claims that the State Penitentiary provides religious
diets for followers of several other religions but not for him. ^id He alleges that this problem
has continued since Aramark Correctional Services became the food provider at the State
Penitentiary on October 1, 2022. Id at 3-4. Carter alleges that the failure to provide a religious
diet has caused him physical, emotional, spiritual, and psychological pain. Id He claims that he
has been forced to eat "dog slop" and that he has been discriminated against because of his
religious beliefs. Id

Carter does not allege additional facts against the existing defendants, but he seeks to add

new claims against these defendants.

id at 2. Specifically, he seeks to bring claims for

violation of his Eighth Amendment right to be ftee from cruel and unusual punishment and his
Fifth Amendment and Fourteenth Amendment due process rights. Id He also alleges unspecified

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"Fourteenth Amendment violations" and violation ofhis rights under the Prison Litigation Reform
Act. Id He further alleges violation of his "[r]ight to be free from abuse of discretion on part of
prison administration,[p]rotection from unconstitutional administrative action,[and][pjrotection
of a prisoner's life and health from administrative action." Id

In a supplement. Carter states that he seeks additional forms of injunctive relief. Doc. 18

at 1. He wants religious services for "Satanic Worship" to be offered as a "religious activity[.]"
Id He wants to be allowed to order all religious items he requires to worship freely. Id He also
wants to be allowed to follow "the Satanic diet of[his] chosing [sic]that is pleasing to [his] God[,]"
including the observance of Satanic holidays. Id Carter asks for reimbursement for his $350 in

filing fees and for a"$100 leather Bible" thrown away by State Penitentiary officials. Id
B.

Legal Standard

A court when screening under § 1915A must assume as true all facts well pleaded in the

complaint. Estate ofRosenberg v. Crandell. 56 F.3d 35,36(8th Cir. 1995). Pro se and civil rights
complaints must be liberally construed. Erickson v. Pardus. 551 U.S. 89, 94(2007)(per curiam);
Bediako v. Stein Mart. Inc.. 354 F.3d 835, 839(8th Cir. 2004)(citation omitted). Even with this
construction,"a pro se complaint must contain specific facts supporting its conclusions." Martin

V. Sargent. 780 F.2d 1334, 1337 (8th Cir. 1985) (citation omitted); see also Ellis v. Citv of

Minneapolis. 518 F. App'x 502, 504 (8th Cir. 2013)(per curiam)(citation omitted). Civil rights
complaints caimot be merely conclusory. Davis v. Hall. 992 F.2d 151, 152 (8th Cir. 1993)(per
curiam)(citation omitted); Parker v. Porter. 221 F. App'x 481, 482 (8th Cir. 2007)(per curiam)
(citations omitted).

A complaint "does not need detailed factual allegations ...[but] requires more tban labels

and conclusions, and a formulaic recitation ofthe elements ofa cause ofaction will not do[.]" Bell

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Atl. Corp. V. Twombly,550 U.S. 544,555(2007)(internal citation omitted). If a complaint does
not contain these bare essentials, dismissal is appropriate.^Beavers v. T.or.Vhart 755 F.2d 657,
663-64 (8th Cir. 1985) (citation omitted). Twomblv requires that a complaint's "[f]actual
allegations must be enough to raise a right to relief above the speculative level on the assumption
that all the allegations in the complaint are true[.]" 550 U.S. at 555 (internal citation and footnote

omitted); see also Abdullah v. Minnesota. 261 F. App'x 926, 927 (8th Cir. 2008)(noting that a
complaint "must contain either direct or inferential allegations respecting all material elements
necessary to sustain recovery under some viable legal theory"(citing Twomblv. 550 U.S. at 553-

63)). Further,"a well-pleaded complaint may proceed even if it strikes a savvy judge that actual

proofofthe facts alleged is improbable, and that a recovery is very remote and unlikely." Braden
V. Wal-Mart Stores, Inc.. 588F.3d585,594(8th Cir. 2009)(internal quotation removed)(quoting
Twomblv.550 U.S. at 556). Under 28 U.S.C. § 1915A,the court must screen prisoner complaints
and dismiss them ifthey "(1)[are] frivolous, malicious, or fail[] to state a claim upon which relief
may be granted; or(2)seek[] monetary relief from a defendant who is immune from such relief."
28 U.S.C. § 1915A(b).
C.

Carter's Causes of Action

1.

Carter's Existing Claims as Brought Against Summit Food Services
and Aramark Correctional Services

Carter brings claims against Summit Food Services and Aramark Correctional Services^

for failure to accommodate his religious dietary needs. Doc. 13-1 at 3-4. Although Carter does

^ Summit Food Services and Aramark Correctional Services are private entities that provide food
services to prisons. S^ Doc. 13-1 at 2. Thus, because Carter alleges that Summit and Aramark

have contracted with the Sioux Falls State Penitentiary to provide food services, he alleges that
they acted under color of state law and can be sued under § 1983. See West v. Atkins. 487 U.S.
42, 56 n.l4(1988). The Court will treat Summit and Aramark as acting imder color of state law
for screening purposes but makes no finding offact on that point.

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not indicate which claims he seeks to bring against Summit and Aramark, he does state that "all 9

defendants have and continue to cause" him harm. See id. at 5. Thus, construing his amended
complaint liberally, this Court finds that Carter seeks to bring all claims against Summit and
Aramark. See ii This Court will consider Carter's previous claims as brought against Summit
and Aramark,then screen his new claims against all defendants.
a.

Official Capacity Claims for Money Damages

Carter brings claims against Summit and Aramark in their official capacities for money

damages. Doc. 13-1 at 2. Summit has previously contracted with the State Penitentiary to
provide food services and Aramark is currently contracted with the State Penitentiary to do so.
^id As the Supreme Court ofthe United States has stated,"a suit against a state official in his

or her official capacity is not a suit against the official but rather is a suit against the official's
office." Will V. Mich. Dep't of State Police. 491 U.S. 58, 71 (1989)(citing Brandon v. Holt. 469
U.S. 464,471 (1985)). Thus, it is a suit against the state itself. Id While "[§] 1983 provides a
federal forum to remedy many deprivations of civil liberties,... it does not provide a federal
forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties."
Id at 66.

The Eleventh Amendment generally acts as a bar to suits against a state for money damages
unless the state has waived its sovereign immunity. Id But when an official capacity claim is
asserted for injunctive relief against a state officer, the defense of qualified immunity does not
apply. ^Pearson v. Callahan. 555 U.S. 223, 242-43 (2009)(citing County of Sacramento v.

Lewis. 523 U.S. 833, 841 n.5 (1998)). Here, Carter seeks both money damages and injunctive
relief. Doc. 1 at 13; Doc. 18 at 1. The State of South Dakota has not waived its sovereign
immunity. Thus, Carter's claims against Summit and Aramark in their official capacities for

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money damages are dismissed without prejudice under 28 U.S.C §§ 1915(e)(2)(B)(iii) and
1915A(b)(2).

b.

Individual Capacity Claims and Official Capacity Claims for
Injunctive Relief

[•^] private corporation cannot be held liable under[§] 1983 ''solely because it employs a

tortfeasor.'" Smith v. Inslev's Inc.. 499 F.3d 875, 881 n.4 (8tb Cir. 2007)(internal quotation
omitted)(quoting Dubbs v. Head Start. Inc.. 336 F.3d 1194, 1216 (lOtb Cir. 2003). Instead, the

plaintiff must show that "there was a policy, custom, or official action [of the private entity] that
inflicted an actionable injury." Johnson v. Hamilton. 452 F.3d 967, 973 (citing Sanders v. Sears
Roebuck & Co.,984 F.2d 972,975-76(8th Cir. 1993)). Here, Carter claims that the food and diet

options provided by Summit and Aramark caused his injuries. Thus, he alleges that his injuries
were caused by official actions ofthese entities.
(1)

First Amendment Free Exercise Claim

Carter claims that Summit and Aramark have violated his free exercise rights under the
First Amendment. Doc. 13-1 at 2. In order to state a First Amendment free exercise claim. Carter
must allege facts showing that prison officials have substantially burdened the free exercise of his

religion. Patel v. U.S. Bureau of Prisons. 515 F.3d 807, 813 (8th Cir. 2008). Substantially
burdening the free exercise ofreligion means that the regulation
must significantly inhibit or constrain conduct or expression that manifests some
central tenet of a person's individual religious beliefs; must meaningfully curtail a
person's ability to express adherence to his or her faith; or must deny a person
reasonable opportunities to engage in those activities that are fundamental to a
person's religion.

Murphy v. Mo.Dep't of Corr.. 372 F.3d 979,988(8th Cir. 2004)(cleaned up). Carter alleges that
he has been prevented from freely exercising his religion because Summit and Aramark have not

provided him with a diet that accommodates his religious beliefs. Doc. 13-1 at 3-4. Although

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Carter provides no details as to what diet his religion requires, he claims that his "strict Satanic
religious diet is ... ignored and discriminated against." Id at 3. While Carter will have to show

that there is such a thing as a "strict Satanic religious diet" and what it is as well as a genuinely
held religious belief, Carter very narrowly alleges facts sufficient to state a First Amendment free

exercise claim. Carter's First Amendment free exercise claim against Summit and Aramark in

their individual capacities and in their official capacities for injunctive relief survives § 1915A
screening.
(2)

First Amendment Establishment Clause Claim

Carter claims that Summit and Aramark have violated his rights under the First

Amendment Establishment Clause. Doc. 13-1 at 2. "[A]t a minimum,the Constitution guarantees

that government may not coerce anyone to support or participate in religion or its exercise[.]" Lee
V. Weisman,505 U.S. 577, 587(1992)(citing Lvnch v. Donnellv. 465 U.S. 668, 678 (1984)). In

order to have standing to bring an Establishment Clause claim, a plaintiff may either have standing
as a taxpayer or establish "an injury of direct and unwelcome personal contact with the alleged

establishment of religion." Patch 515 F.3d at 816 (citations and internal quotation omitted).
"Prisoners may establish an injury if they 'allege they altered their behavior and had direct,
offensive, and alienating contact with' a government-funded religious program." Id. at 817
(quoting Ams. United for Separation of Church & State v. Prison Fellowship MinistriRs. Inn 509
F.3d 406,419(8th Cir. 2007)).

In Patch the prisoner plaintiff alleged that the defendants only provided a religious diet to
Jewish inmates. Id The United States Court of Appeals for the Eighth Circuit found that because

the plaintiff sought accommodations for his own religious beliefs, he could not bring an
Establishment Clause claim, as "[a] successful Establishment Clause claim would strike down any

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accommodation ofreligious beliefs in the prison's meal plans, which would effectively eviscerate
the remedy [the plaintiff] seeks in his complaint." Id Similarly, Carter seeks accommodation of

his own religious beliefs, rather than asking this Court to bar Summit and Aramark from providing
religious accommodations. ^Doc. 13-1 at 3-4. Thus, Carter's First Amendment Establishment

Clause claim is dismissed under 28 U.S.C §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
(3)

Religious Freedom Restoration Act Claim

Carter claims that Summit and Aramark have violated the Religious Freedom Restoration
Act(RFRA). Id at 2. The Supreme Court has ruled that application ofRFRA to state defendants

is unconstitutional. See Holtv.Hobbs. 574 U.S. 352, 357(2015)(citing Citv ofBoeme v. Flores.

521 U.S. 507, 532-36 (1997));^ alro Olsen v. Mukasev. 541 F.3d 827, 830 (8th Cir. 2008)
("Application of RFRA to the states is unconstitutional." (citations omitted)). Summit and
Aramark have contracted with the state to provide food services to State Penitentiary inmates and
are state defendants for purposes ofscreening.^Doc. 13-1 at 2. Thus, Carter's RFRA claim is

dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
(4)

Religious Land Use for Incarcerated Persons Act Claim

Carter asserts that Summit and Aramark have violated the Religious Land Use for

Incarcerated Persons Act (RLUIPA). Id at 2. "RLUIPA protects 'any exercise of religion,
whether or not compelled by, or central to, a system of religious belief.'" Holt. 574 U.S. at 360
(quoting 42 U.S.C. § 2000cc-5(7)(A)). "[A] prisoner's request for an accommodation must be

sincerely based on a religious belief and not some other motivation," and the prisoner must show
that the prison policy substantially burdens the prisoner's exercise ofreligion. Id at 360-61.
To establish a prima facie case under RLUIPA, a plaintiff must show "1)that he engaged
in a religious exercise; and 2) that the religious exercise was substantially burdened." Smith v.

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Allen, 502 F.3d 1255, 1276 (11th Cir. 2007), abrogated on other grounds bv Sossamon v. Texas.

563 U.S.277(2011); see also 42 U.S.C.§ 2000ec-l(a). Ifthe plaintiffsueceeds in making a prima
facie showing, the defendant bears the burden to prove that the challenged regulation is the least
restrictive means of furthering a compelling governmental interest. Allen. 502 F.3d at 1276

(citations omitted). Here, Carter alleges that Summit and Aramark have failed to provide him a
religious diet. Doe. 13-1 at 3-4. Thus, he alleges that his religious exercise has been substantially
burdened. Carter's RLUIPA claim against Summit and Aramark in their individual capacities and
in their official capacities for injunctive relief survives § 1915A screening
(5)

Religious Discrimination Claim

Carter claims that Summit and Aramark have discriminated against him on the basis of

religion. Id. at 2. Construing his complaint liberally. Carter brings a claim for violation of his
Fourteenth Amendment right to equal protection ofthe laws. Id at 2-4.

The Equal Protection Clause of the Fourteenth Amendment requires the government to
"treat similarly situated people alike," a protection that applies to prisoners. Mumhv.372 F.3d at

984 (quoting Rouse v. Benson. 193 F.3d 936, 942 (8th Cir. 1999)). The Eighth Circuit has
explained that for a prisoner to prevail on an equal protection claim, he "must show that he is

treated differently from similarly-situated inmates and that the different treatment is based upon
either a suspect classification or a fundamental right." Patel. 515 F.3d at 815(citations and internal
quotation omitted). "Religion is a suspect classification." Id at 816(citing Weems v. Little Rock
Police Den't. 453 F.3d 1010, 1016(8th Cir. 2006)).

Here, Carter alleges that Summit and Aramark have treated him differently than similarly
situated inmates ofother religions. Doc. 13-1 at 3-4. Speeifically, he alleges that inmates ofother
religions, such as Jewish and Muslim inmates, receive religious diets, but he is not provided a

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religious diet. Id While Carter will have to show that there is such a thing as a "strict Satanic
religious diet" and what it is as well as a genuinely held religious belief, Carter's Fourteenth

Amendment equal protection claim against Summit and Aramark in their individual capacities and
in their official capacities for injunctive relief narrowly survives § 1915A screening.
(6)

First Amendment Freedom of Speech and Retaliation
Claims

This Court construed Carter's initial complaint as bringing First Amendment freedom of

speech and retaliation claims against several defendants. Doc. 11 at 11-14. Specifically, Carter
alleged that his right to receive mail was violated by the State Penitentiary's rejection ofa religious
book and that he was placed in the Segregated Housing Unit in retaliation for his filing of
grievances and his attempts to practice his religion. ^Doc. 1 at 3, 9-11, 13; Doc. 1-1 at 11.
Carter makes no allegations that Summit or Aramark participated in these actions or otherwise

violated his free speech rights or his right to be free from retaliation. ^Doc. 13-1 at 3-4. Thus,
to the extent that Carter brings First Amendment freedom of speech and First Amendment

retaliation claims against Summit and Aramark, these claims are dismissed without prejudice
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).

2.

Carter's Previous Claims Against Existing Defendants Regarding
Prison Diet Offerings

Carter's First Amendment free exercise claim, his RLUIPA claim, his First Amendment

right to receive mail claim, his Fourteenth Amendment equal protection claim, and his First
Amendment retaliation claim survived this Court's initial screening.^ Doc. 11 at 15-16.
Construing his complaint liberally. Carter seeks to bring these claims against Wasko, Sullivan,

^ Specifically, claims brought against certain individual defendants in their individual capacities
survived screening, and these claims brought against all individual defendants in their official
capacities for injunctive relief survived screening. Doc. 11 at 15-16.
10

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Cook, Yost, Mousel, and Mertens-Jones in their individual capacities and in their official

capacities for injunctive relieffor the lack of a religious diet at the State Penitentiary.
"Because vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that
each Government-official defendant,through the official's own individual actions, has violated the
Constitution." Ashcroft v. lobal. 556 U.S. 662,676(2009).
Thus, each Government official ... is only liable for his or her own misconduct.
As we have held, a supervising officer can be liable for an inferior officer's

constitutional violation only if he directly participated in the constitutional
violation, or if his failure to train or supervise the offending actor caused the
deprivation.

Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010)(cleaned up). Carter's individual capacity
claims against individual defendants must allege that each individual defendant either participated
in the unconstitutional conduct or caused the conduct to occur through a failure to train or supervise
the offending actor. See id.

As discussed above. Carter alleges facts sufficient to state a claim for violation of his First

Amendmentfree exercise rights, his Fourteenth Amendment equal protection rights, and RLUIPA.
^Doc. 13-1 at 3-4. The lack of a religious diet does not implicate Carter's First Amendment
right to receive mail or his First Amendment right to be free from retaliation. ^id Under
Parrish, Carter's individual capacity claims against individual defendants must allege that each
individual defendant either participated in the unconstitutional conduct or caused the conduct to
occur through a failure to train or supervise the offending actor.

594 F.3d at 1001. Carter

makes no allegations that Wasko, Sullivan, Cook, Yost, Mousel, and Mertens-Jones participated
in his not being provided a religious diet or that their failure to train or supervise caused the lack
of a religious diet. ^Doc. 1 at 7-12; Doc. 13-1 at 3-4.

11

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Thus, Carter's First Amendment free exercise claim, his Fourteenth Amendment equal
protection claim, and his RLUIPA claim for religious discrimination in prison diet offerings
against Wasko, Sullivan, Cook, Yost, Mousel,and Mertens-Jones in their individual capacities are
dismissed without prejudice under 28 U.S.C §§ 1915(e)(2)(B)(iii) and 1915A(b)(2). Carter's First
Amendment free exercise claim, his Fourteenth Amendment equal protection claim, and his
RLUIPA claim for religious discrimination in prison diet offerings against Wasko, Sullivan, Cook,
Yost, Mousel, and Mertens-Jones in their official capacities for injunctive relief survive § 1915A
screening.

3.

Carter's New Claims Against All Defendants

a.

Official Capacity Claims for Money Damages

As discussed above, money damages are not available for claims against state defendants

in their official capacities. See Will. 491 U.S. at 66. All defendants are either state employees or
private entities that have contracted with the state. Doc. 1 at 2-5; Doc. 13-1 at 2. The State of

South Dakota has not waived its sovereign immunity. Thus,to the extent that Carter seeks to bring
new claims against defendants in their official capacities for money damages, those claims are

dismissed without prejudice under 28 U.S.C §§ 1915(e)(2)(B)(iii) and 1915A(b)(2).
b.

Individual Capacity Claims and Official Capacity Claims for
Injunctive Relief

Again,to bring individual capacity claims against individual defendants. Carter must allege
that each individual defendant either participated in the deprivation or caused it to occur through
a failure to train or supervise. ^Parrish. 594 F.3d 1001. Carter's claims against Summit and
Aramark must show that an actionable injury was caused by a "policy, custom, or official action"

ofthe corporate defendant. ^Hamilton.452 F.3d at 973 (citing Sanders. 984 F.2d at 975-76).
(1)

Eighth Amendment Claim

12

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Carter alleges that the conditions of his confinement violate his Eighth Amendment right
to be free from cruel and unusual punishment. Doc. 13-1 at 2. "[T]he Constitution 'does not

mandate comfortable prisons'; it prohibits 'inhumane ones.'" Williams v Dsln 49 F.3d 442,445
(8th Cir. 1995)(quoting Farmer v. Brennan. 511 U.S. 825, 832(1994)). The Supreme Court has
clarified that only "extreme deprivations" that deny "the minimal civilized measure of life's
necessities are sufficiently grave to form the basis of an Eighth Amendment violation." Hudson

V. McMillian, 503 U.S. 1, 9(1992)(internal quotation omitted). The Supreme Court has listed as

basic human needs "food, clothing, shelter, medical care, and reasonable safety[.]" Helliny v
McKinnev. 509 U.S. 25, 32(1993)(internal quotation omitted).

In order to prevail on an Eighth Amendment conditions of confinement claim, a prisoner
must prove that(1) objectively, the deprivation was "sufficiently serious" to deprive him of"the
minimal civilized measures of life's necessities" or to constitute "a substantial risk of serious

harm" to his health or safety; and (2)subjectively, the defendants were deliberately indifferent to
the risk of harm posed by the deprivation. Simmons v. Cook. 154 F.3d 805, 807(8th Cir. 1998)
(quoting Farmer,511 U.S. at 834). An Eighth Amendment challenge to conditions ofconfinement
requires examining the totality of the circumstances. Villanueva v. George. 659 F.2d 851, 854
(8th Cir. 1981)(en banc). Even if no single condition would be unconstitutional in itself, the
cumulative effect of prison conditions may subject inmates to cruel and unusual punishment. See
id.; see also Tvler v. Black. 865 F.2d 181,183 (8th Cir. 1989).

The Eighth Amendment's prohibition against cruel and unusual punishment require
prisoners to be provided with nutritionally adequate meals to maintain health. See Codv v. CBM

Corr. Food Servs.. 250 F. App'x 763, 765 (8th Cir. 2007)(per curiam)(citing Wishon v.
Gammon.978 F.2d 446,449(8th Cir. 1992); see also Jones v. Allen. 2007 WL 2725218, at *4,

13

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2007 U.S. Dist. LEXIS 105014, at *9(W.D. Ark. Aug. 21,2007)("Merely because the food is
not prepared to an inmate's taste or the fact that an inmate would prefer other foods does not

implicate the Constitution. Rather, the Constitution is only violated ifthe food provided is
inadequate to maintain good health."). In Wishon.the Eighth Circuit held that prisoners have a

right to adequate nutrition and that the failure to provide adequate nutrition may qualify as a

deliberate indifference that violates the Eighth Amendment. 978 F.2d at 449. A prisoner making
a deliberate indifference claim for failure to provide adequate nutrition must show that "the food

he was served was nutritionally inadequate or prepared in a marmer presenting an immediate

danger to his health, or that his health suffered as a result ofthe food." Id Further, it is "clearly
established that a prisoner may properly allege a constitutional violation by demonstrating
significant weight loss or other adverse physical effects from lack of nutrition." Ingrassia v

Schafer, 825 F.3d 891, 899(8th Cir. 2016): see also Davis v. Missouri. 389 F. App'x. 579,579

(8th Cir. 2010)(per curiam)(citing cases for the proposition that "inmate claiming inadequate
diet under Eighth Amendment must allege he lost weight or suffered adverse physical effects, or
was denied nutritionally or calorically adequate diet"(citations omitted)).

Here, Carter fails to state a claim for violation of his Eighth Amendment right to be free

from cruel and unusual punishment. Although his claim must be evaluated in light ofthe totality
ofthe circumstances, the sole deprivation of a basic need alleged by Carter is that the food served
has been inadequate.^ ^Doc. 1 at 7-12; Doc. 13-1 at 3-4. Carter states that he has been "forced

^ In a letter to the Court written after his initial complaint but before his amended complaint. Carter
alleges that he has suffered deprivations "almost identical" to those alleged by another inmate in a
separate case. Doc.8 at 1 (citing Shaw v. Wasko.4:22-CV-04054-KES). One ofthe deprivations
Carter alleges in this letter is that he has had issues "[wjith [m]edical[.]" Id Other than this one
statement. Carter alleges no facts regarding his medical treatment.^id Thus,to the extent that
Carter seeks to bring an Eighth Amendment claim for deliberate indifference to serious medical
14

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to eat'dog slop' instead of what is pleasing to [his] God" but makes no other statements about the

quality or nutrition ofthe food served at the State Penitentiary. ^Doc. 13-1 at 3-4. He claims

that he has "suffer[ed] physically ...from disgracing [his] God" by not eating a religious diet. Id
But he alleges that this harm stems from his inability to practice his religion, not from the quality
or nutrition of the food. ^id. Thus, although he alleges his health has suffered, he does not
allege that it has suffered "as a result ofthe food" as required by Wishon. See id.: 978 F.2d at 449.

Carter's Eighth Amendment conditions ofconfinement claim is dismissed without prejudice under
28 U.S.C §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
(2)

Fifth Amendment Due Process Claim

Carter brings a claim under the Fifth Amendment Due Process Clause. Doc. 13-1 at 2.

"The [D]ue [P]roeess [C]lause of the Fifth Amendment applies only to the federal government."
Truong v. Hassan, 829 F.3d 627,631 n.4(8th Cir. 2016). Carter only brings claims against State
defendants and private defendants who have contracted with the State of South Dakota. Doc. 1 at

2-5; Doc. 13-1 at 2. Thus, his Fifth Amendment due process claim is dismissed without prejudice
under 28 U.S.C §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
(3)

Fourteenth Amendment Due Process Claim

Carter brings a claim under the Fourteenth Amendment Due Process Clause. Doc. 13-1 at

2. Carter does not explain the basis for his due process claim. See id Construing his complaint
liberally, this Court finds Carter brings a Fourteenth Amendment due process claim against Cook
and Yost for rejecting his grievances.

Doc. 1 at 8-10. "While a violation of a state-created

liberty interest can amount to a violation of the Constitution, not every violation of state law or

needs, that claim is dismissed without prejudice under 28 U.S.C §§ 1915(e)(2)(B)(ii) and
1915A(b)(l).
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state-mandated procedures is a violation of the Constitution." Buckley v. Barlow. 997 F.2d 494,
495 (8th Cir. 1993)(per curiam)(holding that a refusal to process grievances alone did not state a

constitutional deprivation.). "[A prison] grievance procedure is a procedural right only, it does not

confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty
interest requiring the procedural protections envisioned by the [Fjourteenth [Ajmendment." Id

(first alteration in original)(quoting Azeez v. DeRobertis. 568 F. Supp. 8, 10(N.D. 111. 1982)); see
also King v. Houston. 556 F. App'x 561,563(8th Cir. 2014)(per curiam)(explaining that, under
Buckley, "prison officials' failure to process or investigate grievances, without more, is not
actionable under § 1983"(citing 997 F.2d at 495)).
Here, Carter claims that Cook rejected a grievance because it did not include a form that

she could have accessed and that Yost rejected a grievance and did not"intervene in the matter[.]"
Doc. 1 at 9-10. These claims fail imder Buckley. See 997 F.2d at 495. Thus, Carter's Fourteenth

Amendment due process claim for grievance process issues is dismissed without prejudice imder
28 U.S.C §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
(4)

First Amendment Access to the Courts Claim

In his separate letter to the Court, Carter alleges that State Penitentiary officials "thr[ew]
away [his] legal stuff" and "den[ied] [him] access to courts[.]" Doc. 8 at 1. Construing his
complaint liberally. Carter brings a claim for violation of his First Amendment right to access the
courts. S^ id, "The Constitution guarantees prisoners a right to access the courts." White v.
Kautzkv. 494 F.3d 677, 679 (8th Cir. 2007). To succeed on a claim for denial of access to the
courts, a plaintiff must show that he suffered actual injury as a result of the defendants' actions.

Lewis V. Casey. 518 U.S. 343, 349 (1996). In order to satisfy the actual injury requirement, a
plaintiff must "demonstrate that a nonfrivolous legal claim had been frustrated or was being

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inipeded." Johnson v. Missouri. 142 F.3d 1087,1089(8th Cir. 1998)(quoting Casev. 518 U.S. at
353).

Here, Carter fails to allege an actual injury as required by Casev. Although Carter claims

that State Penitentiary officials have interfered with his legal filings, he does not identify a
nonfnvolous claim that has been frustrated or impeded as required under Tnbnsnnv lUiQcnm-; See

Doc.8 at 1,142 F.3d at 1089(citing Casev. 518 U.S. at 353). Indeed, Carter has effectively made
multiple claims in this lawsuit. Thus, his First Amendment access to the courts claim is dismissed

without prejudice under 28 U.S.C §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
(5)

South Dakota Human Relations Act

In his separate letter to the Court, Carter expressed a desire to bring a claim under the

South Dakota Relations Act" and SDCL § 20-13-24. Doc. 8 at 1. Construing his complaint
liberally. Carter brings a state-law claim under the South Dakota Human Relations Act. ^id
Under 28 U.S.C. § 1367(a), this Court "shall have supplemental jurisdiction over all other claims

that are so related to claims in the action [over which this Court has original jurisdiction] that they
form part ofthe same case or controversy[.]" Carter's South Dakota Human Relations Act claim

is part ofthe same "case or controversy" as his First Amendment fi-ee exercise claims. Thus, this
Court appears to have supplemental jurisdiction over Carter's state-law South Dakota Human
Relations Act claim.

Under SDCL § 20-13-24,

[i]t is an unfair or discriminatory practice for any person engaged in the provision
of public services, by reason of... religion,... to fail or refuse to provide to any
person access to the use of and benefit thereof, or to provide adverse or unequal
treatment to any person in connection therewith.

A person "claiming to be aggrieved by a discriminatory or imfair practice may file [a charge] with
the Division of Human Rights[.]" SDCL § 20-13-29. The Supreme Court of South Dakota has
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held that "administrative exhaustion with the Division is required with all claims that fall within
its jurisdiction." Landman v. Kaemingk. 2020 WL 3608288, at *2, 2020 U.S. Dist. LEXIS

116598, at *5(D.S.D. July 2, 2020)(quoting O'Brien v. W.Dakota Tech. Tnst.. 670 N.W.2d 924,
928 (S.D. 2003)). Further, "[fjailure to exhaust administrative remedies where required is a
jurisdictional defect." Id,(alteration in original) (quoting S.D. Bd. of Regents v. Heege. 428
N.W.2d 535, 539(S.D. 1988)).
Here, Carter makes no claim that he has exhausted his administrative remedies with the

Division ofHuman Rights. S^ Doc.8 at 1. Landman rejected the plaintiffs argument that South
Dakota Human Relations Act claims did not need to be "exhaust[ed] administratively within the
state beyond DOC exhaustion." 2020 WL 3608288, at *2, 2020 U.S. Dist. LEXIS 116598, at *5
(internal quotation omitted). Thus, while Carter may have attempted to exhaust his claim within
the DOC through the prison grievance process, he must bring his South Dakota Human Relations
Act claim before the Division of Human Rights. ^id Thus, Carter's South Dakota Human

Relations Act claim is dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(l).
(6)

Remaining Claims

Carter alleges unspecified "Fourteenth Amendment violations[,]" violation of the Prison

Litigation Reform Act, and violations of his "[rjight to be free from abuse of discretion on part of
prison administration, [pjrotection from unconstitutional administrative action,[and][pjrotection
of a prisoner's life and health from administration." Doc. 13-l at 2. Carter provides no factual

allegations to support these claims. Thus,these allegations are not"enough to raise a right to relief
above the speculative level" as required by Twomblv. 550 U.S. at 555. Carter's remaining claims
are dismissed without prejudice under 28 U.S.C §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).

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II.

Motion to Appoint Counsel

Carter has filed a motion for appointment of eounsel. Doe. 25. "A pro se litigant has no
statutory or constitutional right to have counsel appointed in a civil ease." Stevens v. Redwing.

146 F.3d 538,546 (8th Cir. 1998). In determining whether to appoint eounsel to a pro se litigant,
this Court considers the complexity of the ease, the ability of the litigant to investigate the facts,
the existence of conflicting testimony, and the litigant's ability to present his claims. Id. At this
time. Carter's claims do not appear to be complex,and he is able to investigate the facts and present
his claims adequately. This Court believes that Carter is capable of pursuing his claims pro se at
this phase of litigation, and his motion for appointment ofeounsel. Doe. 25,is denied at this time.
III.

Order

Accordingly, it is

ORDERED that Carter's motion to amend complaint. Doc. 13, is granted. It is further
ORDERED that Carter's claims against Summit Food Services and Aramark Correctional

Services in their official capacities for money damages and Carter's new claims against Wasko,
Sullivan, Cook, Yost, Mousel, and Mertens-Jones in their official capacities for money damages
are dismissed without prejudice under 28 U.S.C §§ 1915(e)(2)(B)(iii) and 1915A(b)(2). It is
further

ORDERED that Carter's First Amendment free exercise claim for prison diet offerings
against Summit Food Services and Aramark Correctional Services in their individual capacities
and in their official capacities for injimctive relief and against Wasko, Sullivan, Cook, Yost,
Mousel, and Mertens-Jones in their official capacities for injunctive relief only survives § 1915A
screening. It is further

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ORDERED that Carter's RLUIPA claim for prison diet offerings against Summit Food

Services and Aramark Correctional Services in their individual capacities and in their official
capacities for injunctive relief and against Wasko, Sullivan, Cook, Yost, Mousel, and Mertens-

Jones in their official capacities for injunctive relief only survives § 1915A screening. It is further
ORDERED that Carter's Fourteenth Amendment equal protection claim for religious
discrimination in prison diet offerings against Summit Food Services and Aramark Correctional

Services in their individual capacities and in their official capacities for injimctive relief and
against Wasko, Sullivan, Cook, Yost, Mousel, and Mertens-Jones in their official capacities for
injunctive relief only survives § 1915A screening. It is further
ORDERED that Carter's First Amendment Establishment Clause claim and his RFRA

claim against Summit Food Services and Aramark Correctional Services are dismissed under 28
U.S.C §§ 1915(e)(2)(B)(ii) and 1915A(b)(l). It is further

ORDERED that Carter's remaining claims in his amended complaint against all defendants

are dismissed without prejudice under 28 U.S.C §§ 1915(e)(2)(B)(ii)and 1915A(b)(l). It is further
ORDERED that Carter's motion for appointment of counsel. Doc. 25, is denied. It is
further

ORDERED that the Clerk shall send blank summons forms and United States Marshals

Service Form(Form USM-285)to Carter so that he may complete the form to cause the complaint
to be served upon defendants Summit Food Services and Aramark Correctional Services. It is
further

ORDERED that Carter shall complete and send the Clerk of Court a separate summons
and USM-285 form for defendants Summit Food Services and Aramark Correctional Services.

Upon receipt of the completed summons and USM-285 forms, the Clerk of Court will issue the

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summons. If the completed summons and USM-285 form are not submitted as directed, the
complaint may be dismissed. It is fiarther

ORDERED that the United States Marshals Service shall serve the completed summonses,
together with a copy of the initial complaint. Doc. 1, the supplement attached to the initial

complaint containing additional allegations. Doc. 1-1, the amended complaint. Doc. 13-1, the
supplement containing an additional page ofthe amended complaint. Doc. 18, and this order upon
defendants Summit Food Services, Aramark Correctional Services, Wasko, Sullivan, Cook, Yost,
Mousel, and Mertens-Jones. It is further

ORDERED that the defendants will serve and file an answer or responsive pleading to the

amended complaints and supplement on or before 21 days following the date ofservice or 60 days
if the defendant falls under Fed. R. Civ. P. 12(a)(2) or (3). It is finally
ORDERED that Carter will keep the court informed of his current address at all times. All

parties are bound by the Federal Rules of Civil Procedure and by the court's Civil Local Rules
while this case is pending.

DATED January _l^ 2023.
BY THE COURT:

ROBERTO A. LANGE
CHIEF JUDGE

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