Tornquist v. State of South Dakota et al

Filing 14

MEMORADUM OPINON AND ORDER denying 4 Motion to Appoint Counsel and 1915A Screening.. Signed by U.S. District Judge Lawrence L. Piersol on 8/28/2024. Delivered to Matthew Tornquist via usps. (SLT)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

MATTHEW TORNQUIST,

4:23-CV-04195-LLP

Plaintiff,
MEMORANDUM OPINION AND ORDER
vs.

DENYING PLAINTIFF'S MOTION TO

STATE OF SOUTH DAKOTA,State within

USA,In Individual and Official Capacity;
COUNTY OF MINNEHAHA,Corporation in
SD,In Individual and Official Capacity; CITY
OF SIOUX FALLS, Corporation in SD,In
Individual and Official Capacity; SOUTH
DAKOTA STATE PENITENTIARY

INDUSTRIES, Corporation in SD,In Individual
and Official Capacity; KRISTINOEM,
Governor of SD,In Individual and Official

Capacity; KELLIE WASKO,Secretary of
Corrections in SD,In Individual and Official

Capacity; TERESA BITTINGER, Warden at
SDSP,In Individual and Official Capacity;
ANGELA PECHOUS,Unity Coordination and
Case Manager at SDSP,In Individual and
Official Capacity; JULIE MORRISON,SDSP

Employee,In Individual and Official Capacity;
ALL UNKONWN EMPLOYEES,Inmate

Accounting at SDSP,In Individual and Official
Capacity; ALL UNKNOWN EMPLOYEES,at

SDSP,In Individual and Official Capacity;
AYERA,Medical Provider at SDSP,In

Individual and Official Capacity, doing business
as Correctional Healthcare; ARAMARK
CORRECTION FOOD SERVICE,INC.,Food
Vendor at SDSP,In Individual and Official

Capacity; FALL RIVER COUNTY,Corporation
in SD,In Individual and Official Capacity; and
PENNINGTON COUNTY,Corporation in SD,
In Individual and Official Capacity,
Defendants.

APPOINT COUNSEL AND 1915A
SCREENING

Plaintiff, Matthew Tomquist, an inmate at the South Dakota State Penitentiary(SDSP)
filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Doc. 1. This Court granted Tomquist
leave to proceed in forma pauperis, and Tomquist timely paid his initial partial filing fee. Doc. 7.
Tomquist also filed a motion to appoint counsel. Doc. 4. This Court now screens Tomquist's

complaint under 28 U.S.C. § 1915A.
1915A SCREENING OF COMPLAINT

I.

Factual Background
A.

COVID-19 Stimulus Funds

Tomquist claims that the defendants wrongfully confiscated his COVID-19 stimulus
check. Doc. 1. On July 25, 2023,the United States Department ofthe Treasury -Bureau of
Fiscal Services mailed Tomquist his stimulus check. Id. at 1. The SDSP Inmate Accounting
Department received the stimulus funds, which "were instantly stolen from [him] and disbursed
to the [Department of Corrections] and also Court Obligations." Id. at 1-2. The total amount
Tomquist received was $1,996.62, but his stimulus funds were taken in the following manner:
(1)$798.65 for the cost ofincarceration;(2)$99.83 for "savings overdrawl";(3)$73.75 for
frozen; and(4)$798.65 for court-ordered obligations. Id. at 2; Doc. I-l at 3, 5. Tomquist did not
receive notice ofthe funds and did not have an option of where he wanted the funds deposited.

Doc. 1 at 2-3. Tomquist claims that given the choice, he would have placed all the stimulus
funds in his frozen or specialty accounts, not subject to overage fees. Id. at 2.

He alleges that the defendants acted wrongfully to use the stimulus funds for restitution
because restitution does not start until after release from incarceration. Id. at 3. Tomquist filed

grievances about the allegedly wrongful taking of his stimulus check. Doc. 1-1 at 10, 12. SDSP

Warden Teresa Bittinger and another prison staff member responded to Tomquist's grievances

and infomied him that Department of Correetions(DOC)policy states that stimulus and other

federal payments could be subject to garnishment. Id. at 9, 11. Tomquist appealed his grievances
to South Dakota DOC Secretary Kellie Wasko, who denied Tomquist's appeal and informed him
that the funds were appropriately deposited. Id. at 7-8.
B.

COVID-19

Tomquist also claims that the defendants violated his rights because they were
"deliberately, negligently, willfully being indifferent to [his] personal health (considering they
know that [he] ha[s] health issues that could Kill [him] easily from Covidl9)and for deliberately
exposing [him]to the 'full' effects and sufferings of Covidl9." Doe. 1 at 4. He claims that "[t]he
viral infections that [he] had contracted (and it's [sic] after effects) should've been avoidable by
being priveleged [sic] to a 'safe' environment to be able to quarantine, social distance, and wear
a mask to protect from the vims properly." Id. at 4-5.

Tomquist claims that Aramark Correctional Food Service, Inc.,(Aramark) and Avera

Correctional Healthcare(Avera)^ allowed sick inmates to touch and handle food and did not
follow proper COVID-19 guidelines, including not performing temperature checks on inmate
workers, not implementing preventative measures, and not requiring inmate workers to wear
gloves or masks. Id. at 14-15. He also claims that Avera staff were not required to wear masks or
gloves. Id. He alleges that Aramark and Avera's actions caused the spread of COVID-19
throughout the SDSP and caused Tomquist pain and suffering. Id.

^ Aramark is a private company that contracted with the State of South Dakota to provide food
services in the DOC facilities. Avera is a private company that contracted with the State of South
Dakota to provide medical services in the SDSP. Private companies act under color of state law
when providing serviees in the prison and can be sued under § 1983. See West v. Atkins, 487 U.S.
42,56 n.l5 (1988). Thus, for the purposes of screening, the Court assumes that Aramark and
Avera were acting under color of state law.

Tomquist alleges that there was a higher rate of COVID-19 infection at the SDSP

because food was handled by sick inmates, lack of masks and not enforcing a mask mandate,
poor hygienic conditions, close living quarters, and lack of proper healthcare and medical
treatment. Id. at 3, 5. He claims that he has a higher risk ofinfection because he is overweight
with health issues, he has respiratory and breathing problems requiring a continuous positive
airway pressxore(CPAP)machine, and he has autism,"which puts [him] in situations that
'normal' people would never be subjected to[.]" Id. at 3. Tomquist has contracted COVID-19 at
least three times and continues to experience health issues and effects from COVID-19.Id.
Tomquist filed multiple grievances about contracting COVID-19 and received replies from
several DOC employees. Doc. 1-1 at 14—19.
C.

Wrongful Conviction

Tomquist claims that he was illegally tried and convicted offirst degree murder in
Pennington County, but he claims that he did not commit the crime and the trial violated 18
U.S.C. § 3235. Doc. 1 at 16. He alleges that he should have been tried in Fall River County. Id.
See also Doc. 1-1 at 22-24,26-28. He claims that he "was conspired against in violation of(18
USCA § 241)&(18 USCA § 242), where multiple people were involved in scheming and

conspiring against [his]'imwaived' right to be tried in the county where the crime allegedly was
committed." Doc. 1 at 16-17.
D.

General Information

Tomquist sues all defendants in their individual and official capacities. Id. at 1. He

requests "[c]ompensation in the amoimt of $25,000,000 for the pain and suffering endured
(personal damages)[,]" $280,000 for deliberate pain and suffering that occurred between 2020
through 2022, and retum of his full COVID-19 relieffunds. Id. at 4-5, 17. See also Doc. 1-2 at 2.

But see Doc. 1 at 2(Tomquist "is requesting that the D.O.C. return approximately $1,770.88 of

[his] $1,996.62 Stimulus/Covidl9 funds."). He also requests that this Court order defendants to
stop infringing on his rights to equal protection and due process and an order preventing
defendants from retaliating against him. Doc. 1 at 4-5, 17. He also seeks restitution for his
allegedly wrongful conviction and false imprisonment. Id. at 17.
II.

Legal Background

The court must assume as true all facts well pleaded in the complaint. Est. 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

eomplaint must contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d
1334, 1337(8th Cir. 1985)(citation omitted); see also Ellis v. City ofMinneapolis, 518 F. App'x
502,504(8th Cir. 2013)(per curiam).

A complaint "does not need detailed factual allegations ...[but] requires more than
labels and conclusions, and a formulaic recitation ofthe elements of a cause of action will not

Bell Atl. Corp. v. Twomhly, 550 U.S. 544, 555 (2007)(internal citations omitted). If it does
not contain these bare essentials, dismissal is appropriate. See Beavers v. Lockhart, 755 F.2d 657,

663 (8th Cir. 1985). Twomhly 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 ofthe allegations in
the complaint are true[.]" 550 U.S. at 555 (internal citation omitted); see also Abdullah v.
Minnesota, 261 F. App'x 926, 927(8th Cir. 2008)(per curiam)(noting that a "complaint must
contain either direct or inferential allegations respecting all material elements necessary to

sustain recovery under some viable legal theory"). 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 relieffrom a defendant
who is immune from such relief." 28 U.S.C. § 1915A(b). The court will now assess each
individual claim under 28 U.S.C. § 1915A.
III.

Discussion

A.

Claims Against the State of South Dakota

Tomquist sues the State of South Dakota. Doc. 1 at 1. The State of South Dakota is

generally immune from suit. Will v. Mich. Dep Y ofState Police, 491 U.S. 58,65 (1989). The
Supreme Court has explained that Congress, in passing 42 U.S.C. § 1983, did not abrogate
states' Eleventh Amendment immunity from suit in federal court. Id. (citations omitted). Thus,
Tomquist's claims against the State of South Dakota are barred by the Eleventh Amendment and
are dismissed with prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(h)(l).
B.

Claims Against the South Dakota State Penitentiary Industries

Tomquist also sues the South Dakota State Penitentiary Industries, relying on SDCL
§ 24-7-1. Doc. 1 at 1. SDCL § 24-7-1 states that "[t]he South Dakota State Prison Industries
constitutes the operating organization for all ofthe industries now established at the state

penitentiary, including the license plate plant, fumiture shop, bookbindery, and sign shop." In
Tomquist's complaint, he does not allege any claims related to employment. Doc. 1 at 10.
Instead, he claims that he was subjeet to multiple COVID-19 infections because the SDSP did

not implement proper mask mandates, quarantine procedures, social distancing and protective

procedures. Id. The South Dakota DOC was created by the state legislature and is an arm ofthe
State of South Dakota not subject to suit under § 1983. SDCL § 1-15-1.2. The SDSP was created
by state legislature and is also not subject to suit under § 1983. SDCL §§ 24-1-1, 24-1-4. Thus,

Tomquist's claims against the South Dakota State Penitentiary Industries are dismissed without
prejudice for failure to state a claim upon which relief may be granted under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(l).

C.

Claims Against Pennington County and Fall River County

Tomquist sues Pennington County because he was illegally tried and convicted offirst
degree murder, which he claims he did not commit. Doc. 1 at 16. Tomquist sues Fall River
County because he alleges that he should have been tried in Fall River County instead of
Pennington County. Id. Tomquist claims that Pennington County and Fall River County are
corporate bodies subject to civil suit under SDCL § 7-18-1. Id. Flowever, a county or local

government may only be sued "when execution of a government's policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to represent official

policy," deprives a plaintiff of a federal right. Monell v. Dep't ofSoc. Servs., 436 U.S. 658,694
(1978). Municipal liability attaches "(1) where a particular municipal policy or custom itself
violates federal law, or directs an employee to do so;[or](2) where a facially lawful municipal

policy or custom was adopted with 'deliberate indifference' to its known or obvious
consequences." Moyle v. Anderson, 571 F.3d 814, 817-18 (8th Cir. 2009)(citing Seymour v. City
ofDes Moines, 519 F.3d 790, 800 (8th Cir. 2008)).
Here, Tomquist has not identified a specific Pennington County or Fall River County

policy or custom that caused a constitutional violation. See Doc. 1 at 16-17. Tomquist claims
that his state criminal case was tried in the wrong county, but he does not claim that the alleged
violation of his rights stems firom an unconstitutional policy, custom, or official act. Id.-, see also
Monell,436 U.S. at 694. Thus, Tomquist's claims against Pennington County and Fall River

County are dismissed without prejudice for failure to state a claim upon which relief may be

granted under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).^
D.

Claims Against Minnehaha County and the City of Sioux Falls

Relying on SDCL § 15-2-14 and SDCL § 8-2-3, Tomquist sues Minnehaha County and
the City of Sioux Falls for failure to follow proper mask mandates, quarantine procedures, social
distancing, and COVID-19 protective procedures. Doc. 1 at 7-9. However, based on the

allegations in his complaint, Tomquist lacks standing to bring his claims against Minnehaha
County and the City of Sioux Falls.

Standing "is a threshold question in every federal case, determining the power ofthe
court to entertain suit." Warth v. Seldin, 422 U.S. 490, 498 (1975)."[T]he standing question is

whether the plaintiff has 'alleged such a personal stake in the outcome of a controversy' as to
warrant his invocation offederal-court jurisdiction and to justify exercise ofthe court's remedial

powers on his behalf." Id. at 498-99(quoting Baker v. Carr, 369 U.S. 186,204(1962)). In order
to possess standing to bring a claim in federal court, a plaintiff must show

(1)it has suffered an "injury in fact" that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical;(2)the injury is fairly traceable
to the challenged action of the defendant; and (3)it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.

Friends ofthe Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

^ Even if Tomquist had alleged a wrongful policy or custom, a plaintiff can only recover money
damages for a wrongful conviction if"the conviction or sentence has been reversed on direct

appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28
U.S.C. § 2254." Heckv. Humphrey,512 U.S. 477,486-87(1994). Because Tomquist has not
alleged that his conviction has been reversed, expunged, declared invalid, or called into question
by a writ of habeas corpus, his claims for wrongful conviction are dismissed without prejudice
also under Heck for failure to state a claim upon which relief may be granted.
8

Tomquist sues Minnehaha County and the City of Sioux Falls for failure to follow proper
mask mandates, quarantine procedures, social distancing, and COVID-19 protective procedures.
Doc. 1 at 7-9. Liberally construing Tomquist's complaint, he appears to allege Momll claims
against Minnehaha County and the City of Sioux Falls for deliberate indifference for their failure

to adopt, implement, and enforce sufficient COVID-19 protective procedures. See generally id.
However, during Tomquist's multiple COVID-19 infections, he was incarcerated at the SDSP,

which is operated by the State of South Dakota, not Minnehaha County or the City of Sioux
Falls. Id. at 3, 6-10. Tomquist's alleged injury of multiple COVID-19 infections is not fairly
traceable to the challenged action of Minnehaha County and the City of Sioux Falls failing to
adopt proper COVID-19 procedures, and, therefore, he lacks standing to sue Minnehaha County
and the City of Sioux Falls. Thus, Tomquist's claims against Minnehaha County and the City of

Sioux Falls are dismissed without prejudice for failure to state a claim upon which relief may be
granted under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
E.

Official Capacity Claims for Money Damages

Tomquist sues all defendants in their individual and official capacities. Doc. 1 at 1.
Govemor Noem, Wasko, Bittinger, Unit Coordinator Angela Pechous, SDSP Employee Julie
Morrison, All Unknown Employees at SDSP,and All Unknown Employees in Accounting are

employees ofthe State of South Dakota. Id. Tomquist also sues Avera and Aramark, which
contract with the State of South Dakota."[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, 491
U.S. at 71 (citing Brandon v. Holt, 469 U.S. 464,471 (1985)). Thus, it is a suit against the state
itself. 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. See also Carter v. Wasko,4:22-CV-04103-RAL,2023
WL 248233, at *3 (D.S.D. Jan. 18, 2023)(applying Eleventh Amendment immunity to private
companies contracting with the State of South Dakota to provide services to state prisons).
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. Here, Tomquist seeks monetary
damages against all defendants. Doc. 1 at 4, 5, 17; Doc. 1-2 at 2. Claims against defendants
employed by the State of South Dakota in their official capacities are the equivalent of claims for
money damages against the State of South Dakota. The State of South Dakota has not waived its
sovereign immunity to allow Tomquist's official capacity claims for money damages. Thus,
Tomquist's claims against Govemor Noem, Wasko, Bittinger, Pechous, Morrison, All Unknown

Employees at SDSP,All Unknown Employees in Accounting, Avera, and Aramark 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).

F.

Individual Capacity Claims for Money Damages and Official Capacity
Claims for Injunctive Relief

"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."

V. Iqbal, 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). Tomquist's individual capacity

claims 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.

10

1.

First Amendment Retaliation

Liberally constraining Tomquist's complaint, he alleges a First Amendment retaliation
claim. See Doc. 1 at 4—5, 17. In order for a plaintiff to allege a First Amendment retaliation
claim, he must show that "(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 ofthe protected
acXxvity."'Spencer v. Jackson Cnty.,11)^ F.3d 907,911 (8th Cir. 2013)(quoting

v.

Vincenz, 382 F.3d 870, 876(8th Cir. 2004)). Here, Tomquist does not allege that the defendants
have retaliated against him. Id. Instead, he alleges that the defendants will retaliate against him.
Id. Thus, he has not alleged that a government official took adverse action that would chill a
person of ordinary firmness from continuing in the activity; his First Amendment retaliation

claim is dismissed without prejudice for failure to state a claim upon which relief may be granted
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
2.

Eighth Amendment

Liberally construing Tomquist's complaint, he alleges Eighth Amendment claims against
GovemorNoem, Wasko, Bittinger, Pechous, All Unknown Employees at SDSP, All Unknown
Employees in Accounting, Avera, and Aramark. Doc. 1 at 7-16.
a.

Official Capacity Claims for Injunctive Relief

Tomquist requests the following reliefthroughout his complaint:(1)an order requiring
the DOC to reimburse his full COVID-19 stimulus funds to an account of his choosing;(2) an

order requiring the defendants to stop infringing on his rights to equal protection and due

process;(3) an order preventing the DOC from retaliating against him for filing this lawsuit; and
(4)$25,280,000. Doc. 1 at 4-5, 17."The requisite elements of Article III standing are well

11

established: A plaintiff must allege personal injury fairly traceable to the defendant's allegedly
unlawful conduct and likely to be redressed by the requested relief." Patel v. U.S. Bureau of
Prisons, 515 F.3d 807, 816 (8th Cir. 2008)(quoting Hein v. Freedomfrom Religion Found., Inc.,
551 U.S. 587, 598 (2007)). On Tomquist's Eighth Amendment claims, he does not request any
injunctive reliefthat is likely to redress the alleged injuries. See Doc. 1. Thus, Tomquist's Eighth
Amendment official capacity claims for injunctive relief are dismissed without prejudice for
failure to state a claim upon which relief may be granted under 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(l).
b.

Deliberate Indifference to Conditions of Confinement

Tomquist sues Govemor Noem, Wasko, Bittinger, Pechous, All Unknown Employees at
SDSP, All Unknown Employees in Accounting, Avera, and Aramark for deliberate indifference

to his conditions of confinement in violation of his Eighth Amendment right to be free from cmel
and unusual punishment. Doc. 1 at 11-15.
"[T]he Constitution 'does not mandate comfortable prisons'; it prohibits 'inhumane

ones.'"Williams v. Delo, 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)(citation and
internal quotation omitted). The Supreme Court has listed as hasic human needs "food, clothing,
shelter, medical care, and reasonable safety[.]" Helling v. McKinney, 509 U.S. 25, 32(1993)
(citation 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 ofthe

12

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
inmate health or safety. Simmons v. Cook, 154 F.3d 805, 807(8th Cir. 1998)(citing Farmer, 511
U.S. at 834). An Eighth Amendment challenge to conditions of confinement must examine the

totality ofthe 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 Tyler v. Black,
865 F.2d 181, 183 (8th Cir. 1989)(en banc).

Here, Tomquist does not allege sufficient facts for his Eighth Amendment conditions of
confinement claims against All Unknown Employees at SDSP, All Unknown Employees in
Accounting, Governor Noem, Wasko, Bittinger, and Pechous to survive screening. Tomquist's

vague allegations of insufficient mask mandates or social distancing do not show deliberate
indifference and fail to state a claim upon which relief may be granted. He claims that the
defendants ignored the Center for Disease Control and Prevention(CDC)guidelines about masks
and social distancing. Doc. 1 at 11-14. However,"[t]he Eighth Amendment does not enact the

CDC guidelines." Valentine v. Collier, 978 F.3d 154,164(5th Cir. 2020). Although the Eighth
Circuit has recognized an Eighth Amendment claim for failure by prison officials to institute a

system to prevent the spread oftuberculosis, a communicable disease, by a pattem of negligent
and reckless conduct violated the Eighth Amendment,see DeGidio v. Fung,920 F.2d 525, 527,

533 (8th Cir. 1990), Tomquist's complaint fails to sufficiently allege an Eighth Amendment
claim for deliberate indifference.

He also claims that Govemor Noem, Wasko, Bittinger, and Pechous failed to train staff

on proper COVID-19 procedmes. A failure to train claim "requires a showing that the supervisor

13

had notice that the training procedures and supervision were inadequate and likely to result in
constitutional violation." Tlamka v. Serrell, 244 F.3d 628,635 (8th Cir. 2001){q\xotmg Andrews
V. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996)). Tomquist has not alleged sufficient facts to show

that Governor Noem, Wasko, Bittinger, and Pechous were aware ofinadequate training
procedures and supervision and that inadequate training and supervision were likely to result in a
constitutional violation. Thus, Tomquisfs Eighth Amendment conditions of confinement claims

against All Unknown Employees at SDSP, All Unknown Employees in Accounting, Governor
Noem, Wasko, Bittinger, and Pechous in their individual capacities for money damages are
dismissed without prejudice for failure to state a claim upon which relief may be granted under
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
Tomquist also sues Aramark and Avera for deliberate indifference to his conditions of

confinement in violation ofthe Eighth Amendment. Doc. 1 at 14-16. Under § 1983, a
corporation cannot be held vicariously liable for the acts of its employees. Burke v. N.D. Dep't of
Corr. & Rehab., 294 F.3d 1043, 1044(8th Cir. 2002)(per curiam)(citing Sanders v. Sears,

Roebuck & Co., 984 F.2d 972, 915-16(8th Cir. 1993))."[A] corporation acting under color of
state law will only be held liable under § 1983 for its own rmconstitutional policies. The proper
test is whether there is a policy, custom or action by those who represent official policy that
inflicts injury actionable under § 1983." Sanders, 984 F.2d at 975-76 (citing Monell, 436 U.S. at
690, 694). Flere, Tomquist claims that Avera did not require its staff to wear masks or gloves in
the facility to prevent the spread of COVID-19. Doc. 1 at 14-15. He also claims that Avera did

not do proper screenings or follow quarantine procedures and encouraged inmates sick with
COVID-19 to work in the kitchen and spread the vims. Id. Tomquist claims that Aramark
allowed sick inmates to handle food, failed to conduct temperature checks, and did not require

14

inmates to wear gloves or masks.Id. at 15. It is unclear from Tomquist's complaint what,if any,
actions by Avera and Aramark employees were conducted in accordance with a policy, custom
or official action. See generally id. Thus, Tomquist's Eighth Amendment conditions of
confinement claims against Avera and Aramark are dismissed without prejudice for failure to
state a claim upon which relief may be granted under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(l).
c.

Deliberate Indifference to Serious Medical Needs

Liberally constraing Tomquist's complaint, he alleges claims for deliberate indifference

to his serious medical needs against Govemor Noem, Wasko,Bittinger, Pechous, All Unknown
Employees at SDSP,All Unknovm Employees in Accounting, Avera, and Aramark in violation

of his Eighth Amendment right to be free from cmel and unusual punishment. Doc. 1 at 11-15.
"[Djeliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and

wanton infliction of pain' proscribed by the Eighth Amendment." Estelle v. Gamble,429 U.S.
97, 104(1976)(quoting Gregg v. Georgia,428 U.S. 153,173 (1976))."This is trae whether the

indifference is manifested by prison doctors in their response to the prisoner's needs or by prison
guards in intentionally denying or delaying access to medical care or intentionally interfering

with the treatment once prescribed." Id. at 104-05 (footnotes omitted). "This conclusion does not
mean, however,that every claim by a prisoner that he has not received adequate medical
treatment states a violation ofthe Eighth Amendment."Id. at 105."[A] prisoner must allege acts

or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs."
Id. at 106. Allegations of negligence will not suffice, nor will mere disagreement with treatment

decisions. Jolly v. Knudsen,205 F.3d 1094, 1096(8th Cir. 2000)(citing Est. ofRosenberg, 56
F.3d at 37).

15

The deliberate indifference standard includes both an objective and subjective

component. Dulany v. Carnahan, 132 F.3d 1234, 1239(8th Cir. 1997)(citing Coleman v. Rahija,
114 F.3d 778, 784(8th Cir. 1997)). The plaintiff"must demonstrate (1)that phe or she] suffered
objectively serious medical needs and (2)that the prison officials actually knew of but
deliberately disregarded those needs." Id. (citing Coleman, 114 F.3d at 784)."A serious medical
need is one that has been diagnosed by a physician as requiring treatment, or one that is so
obvious that even a layperson would easily recognize the necessity for a doctor's attention."
Coleman, 114 F.3d at 784(intemal quotation omitted). To be liable for deliberately disregarding
medical needs,"the official must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must also draw the inference."

Farmer,511 U.S. at 837; see also Spruce v. Sargent, 149 F.3d 783, 786(8th Cir. 1998)
("[Cjonstructive knowledge, or the 'should-have-known' standard, is not sufficient to support a
finding of deliberate indifference ....").
Here, Tomquist has not alleged sufficient facts for his Eighth Amendment deliberate
indifference to serious medical needs claims to survive § 1915A screening. He has not

sufficiently alleged that All Unknown Employees at SDSP, All Unknown Employees in

Accounting, Governor Noem, Wasko, Bittinger, and Pechous were aware of and deliberately
indifferent to his medical needs. See generally Doc. 1. He alleges that the defendants ignored
CDC guidelines by failing to implement mask mandates and social distancing, id. at 11-14, but

"[t]he Eighth Amendment does not enact the CDC guidelines." Valentine, 978 F.3d at 164.
Tomquisfs vague allegations about the spread ofCOVID-19 are insufficient to allege an Eighth
Amendment deliberate indifference to serious medical needs claim.

16

Tomquist also alleges a failure to train claim against Governor Noem, Wasko, Bittinger,
and Pechous. Doc. 1 at 11—13. However, Tomquist has not alleged sufficient facts to show that

Govemor Noem, Wasko, Bittinger, and Pechous were aware ofinadequate training procedures
and supervision and that inadequate training and supervision were likely to result in a
constitutional violation. M;Tlamka, 244 F.3d at 635 (citing Andrews,98 F.3d at 1078). Thus,
Tomquist's Eighth Amendment deliberate indifference to serious medical needs claims against
All Unknown Employees at SDSP, All Unknown Employees in Accounting, Govemor Noem,
Wasko, Bittinger, and Pechous in their individual capacities for money damages are dismissed
without prejudice for failure to state a claim upon which relief may be granted under 28 U.S.C.
§§ 1915(e)(2)(B)(ii)and 1915A(b)(l).
Tomquist also sues Aramark and Avera for deliberate indifference to his serious medical

needs in violation ofthe Eighth Amendment. Doc. 1 at 14-16. It is unclear from Tomquist's
complaint what, if any, actions by Avera and Aramark employees were conducted in accordance

with a policy, custom, or official action. Doc. 1 at 14-15; Sanders, 984 F.2d at 975-76 (citing
Monell,436 U.S. at 690, 694). Thus, Tomquist's Eighth Amendment deliberate indifference to

serious medical needs claims against Aramark and Avera are dismissed without prejudice for
failure to state a claim upon which relief may be granted imder 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(l).
3.

Fourteenth Amendment Due Process

Tomquist claims that defendants violated his Fourteenth Amendment right to due process
by confiscating his stimulus funds. Doc. 1 at 4, 13-14."The Fourteenth Amendment's Due

Process Clause protects persons against deprivations of life, liberty, or property; and those who
seek to invoke its procedural protection must establish that one ofthese interests is at stake."

17

Smith V. McKinney, 954 F.3d 1075, 1079 (8th Cir. 2020)(quoting Wilkinson v. Austin, 545 U.S.

209,221 (2005)). An intentional deprivation of property does not violate the due process clause
if there is an adequate post-deprivation remedy. Hudson v. Palmer,468 U.S. 517, 533(1984). A
post-deprivation remedy does not satisfy due process requirements if the property deprivation
was effected pursuant to an established state procedure. Id. at 532(citing Logan v. Zimmerman
Brush Co., 455 U.S. 422(1982)).
The Eighth Circuit held that "inmates have a property interest in money received from
outside sources.... Thus, inmates are entitled to due process before they can be deprived of
these monies." Mahers v. Halford, 76 F.3d 951, 954(8th Cir. 1996). When considering what
process is due before money received from outside sources can be applied toward restitution, the
Eighth Circuit weighs three factors:
1) the private interest that will be affected by the official action; 2)the risk of an
erroneous deprivation of such interest through the procedures used, and the
probable value of additional or substitute procedures; and 3) the government's
interest, including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.

Id. {cilmg Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). In Hayes v. Graves,the Eastern

District of Arkansas applied Mahers to confiscation of an inmate's stimulus fronds. 2022 WL
822881, at *5-6(E.D. Ark. Mar. 16, 2022). The court in Hayes held that as to due process for
confiscation of stimulus funds,"the Eighth Circuit case Mahers v. Halford is authoritative as to
restitution and highly persuasive as to court fines, fees, and costs." Id. at *6 (internal quotation,
citation, and footnote omitted). Accordingly, the court in Hayes held that procedural due process

was satisfied for confiscated stimulus payments put towards restitution, court fines, fees, and
costs but not for payments put toward other funds. Id. This Court applied Hayes as instructive in
Cody V. Clark to find that the plaintifffailed to state a claim for stimulus funds put towards

18

restitution, court fines, fees, and costs, but held that the plaintiffs claims as to the use of
confiscated stimulus funds beyond those uses survived screening. 4:22-CV-04010-KES,2022
WL 1568871, at *15(D.S.D. May 18, 2022). ButseeHines v. Johnson,4:19-CV-04108-LLP,

2021 WL 1732254, at *2—3(D.S.D. May 3, 2021)(denying as futile a request for leave to amend
complaint to add due process claims against state defendants for deprivation of stimulus funds

because common law and SDCL § 21-3-3 provide an adequate post-deprivation remedy).
This Court finds Makers, Hayes, and Cody instructive in analyzing whether Tomquisfs
due process claims survive screening. Because Tomquist alleges that the SDSP acted in
accordance with an established state procedure when confiscating his stimulus funds, a postdeprivation remedy does not satisfy due process. Doc. 1-1 at 7(stating that Tomquisfs stimulus
funds were taken according to policy and that the check "was appropriately deposited").
Tomquist fails to state a claim for the stimulus funds that were confiscated and used for
restitution, court fines, fees, and costs. This Court cannot determine on the face of Tomquisfs

complaint whether all confiscated stimulus funds were used for restitution, court fines, fees, and
costs. Thus, Tomquisfs Fourteenth Amendment due process claims against Pechous, Morrison,

All Unknovm Employees at SDSP, and All Unknown Employees in Accounting^ in their official
capacities for injunctive relief and their individual capacities for money damages survive
§ 1915A screening.
4.

Fourteenth Amendment Equal Protection

Tomquist claims that the defendants violated his right to equal protection under the
Fourteenth Amendment. Doc. 1 at 2, 8-9. The equal protection clause ofthe Fourteenth

^ Tomquist must identify All Unknown Employees at SDSP and All Unknown Employees in
Accounting. This Court bears no responsibility to identify the individuals to whom Tomquist
refers and intends to sue.

19

Amendment requires that the government "treat similarly situated people alike," a protection that
applies to prisoners. Murphy v. Mo. Dep't ofCorr., 372 F.3d 979, 984(8th Cir. 2004)(quoting
Rouse V. Benton, 193 F.3d 936,942(8th Cir. 1999)). A plaintiff must first demonstrate that he
was treated "differently than others who were similarly situated to h[im]." Klinger v. Dep't of
Corr., 31 F.3d 727, 731 (8th Cir. 1994);In re Kemp,894 F.3d 900,910(8th Cir. 2018)
("[djissimilar treatment of dissimilarly situated persons does not violate equal protection"
(alteration in original)(quoting Klinger, 31 F.3dat731)).
An equal protection violation also requires "an intent to discriminate." In re Kemp,894
F.3d at 910;see also Henley v. Brown,686 F.3d 634,642(8th Cir. 2012)(citing Foster v.
Wyrick, 823 F.2d 218, 221 (8th Cir. 1987))("In the absence of any allegations of intentional
discrimination, we therefore concluded the Equal Protection Clause did not provide a ground for
relieffor appellant's section 1983 race discrimination claim."). An equal protection claim has
been recognized through a "class of one" where a "plaintiff alleges that [he] has been
intentionally treated differently from others similarly situated and that there is no rational basis
for the difference in treatment." Village ofWillowbrookv. Olech, 528 U.S. 562, 564(2000).

Here, Tomquist has not alleged that he has been treated differently than other inmates
who were similarly situated to him. See generally Doc. 1. Tomquist claims that Morrison
"showed [him] deliberate indifference when it came to others receiving their[]" stimulus checks,
but he does not claim that the defendants treated him differently or that the defendants did not

use other inmates' stimulus checks for payment toward their fees and restitution. Id. at 13. He

also claims that because he has autism,"which puts [him] in situations that 'normal' people
would never be subjected to[,]" but he does not allege any specific instance of different
treatment. Id. at 3. Thus, he fails to state an equal protection claim under the Fourteenth

20

Amendment; his Fourteenth Amendment equal protection claim is dismissed without prejudice
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
5.

Prison Policy

Tomquist claims that Bittinger violated DOC Policy 1.1.1.1 and 1.1.1.A. Doc. 1 at 12. He
also claims that all defendants violated DOC Policy 1.6.A.07. Id. at 16. Violation of prison
policy is not actionable under § 1983. Ebmeier v. Stump, 70 F.3d 1012, 1013 (8th Cir. 1995);
Cole V. Bone, 993 F.2d 1328, 1334(8th Cir. 1993). Thus, Tomquist's claims for violation of
prison policy are dismissed with prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(l).
6.

The Americans with Disabilities Act

Tomquist alleges claims under the Americans with Disabilities Act(ADA). Doc. 1 at
7-8."The ADA consists ofthree titles addressing discrimination against the disabled in different

contexts." Gorman v. Bartch, 152 F.3d 907,911 (8th Cir. 1998)."Title I prohibits employment
discrimination. Title II prohibits discrimination in the services of public entities, and Title III
prohibits discrimination by public accommodations involved in interstate commerce such as
hotels, restaurants, and privately operated transportation services[.]" Id. (citing 42 U.S.C.
§§ 12112,12132,12182, 12184). Tomquist does not specify which Title ofthe ADA he alleges
is being violated, but the Court liberally constmes Tomquist's complaint to allege a claim for
violation of Title II. Title II states that"no qualified individual with a disability shall, by reason
of such disability, he excluded from participation in or be denied the benefits ofthe services,

programs, or activities of a public entity, or be subjected to discrimination by any such entity."
42 U.S.C. § 12132. Thus, Tomquist must allege

(1)that he is a qualified individual with a disability;(2)that he was excluded from
participation in or denied the benefits of the [prison's] services, programs, or

21

activities, or was otherwise subjected to discrimination by the [prison]; and(3)that
such exclusion, denial of benefits, or other discrimination was by reason of his
disability.

Baribeau v. City ofMinneapolis, 596 F.3d 465,484(8th Cir. 2010).
Here, Tomquist claims that he is autistic and mentally disabled,"which puts [him] in
situations that 'normal' people would never be subjected to[.]" Doc. 1 at 3. See also id. at 8-9.
Although he claims that he has a disability, he does not claim that he was excluded from
participation in or denied benefits of services, programs, or activities or otherwise subjected to
discrimination by reason of his disability. Id. at 3, 8-9. Thus, Tomquist's claims under the ADA
are dismissed without prejudice for failure to state a claim upon which relief may be granted
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
7.

The CARES Act

Tomquist claims that Morrison, All Unknown Employees at SDSP,and All Unknown

Employees in Accounting violated his rights under the Coronaviras Economic Stabilization Act
(CARES Act). Doc. 1 at 13-14. The economic impact payments are codified in the Intemal
Revenue Code under 26 U.S.C. §§ 6428,6428A, and 6428B. See also Jones v. United States,

2021 U.S. Dist. LEXIS 91519, at *2(E.D. Ark. May 13, 2021). However, many courts have held
that the CARES Act does not create a private right of action. McClendon v. Benard,2021 WL
5567369, at *2(E.D. Ark. Nov. 29,2021)(collecting cases); Patterson v. Bank ofAm. N.A.,
2023 U.S. Dist. LEXIS 182756, at *5(E.D Mo. Oct. 11, 2023)(collecting cases). Thus,

Tomquist's claims under the CARES Act against Morrison, All Unknown Employees at SDSP,
and All Unknown Employees in Accounting are dismissed with prejudice for failure to state a
claim upon which relief may be granted under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).

22

8.

18 U.S.C. §§ 241 and 242

Tomquist claims that defendants violated his rights to be safe under 18 U.S.C. §§ 241 and
242. Doc. 1 at 7-9, 11, 14, 16. However, 18 U.S.C. §§ 241 and 242 are criminal statutes that do

not provide a private right of action. United States v. Wadena, 152 F.3d 831, 846(8th Cir. 1998).
Thus, Tomquist's claims under 18 U.S.C. §§ 241 and 242 are dismissed with prejudice for
failure to state a claim upon which relief may be granted under 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(l).
9.

Conspiracy

Tomquist claims that the defendants conspired to violate his right to be safe. Doc. 1 at 14.
In order to allege a conspiracy under § 1983, Tomquist must show:"(1)two or more persons;
(2) an object to be accomplished;(3)a meeting of the minds on the object or course of action to
be taken;(4)the commission of one or more unlawful overt acts; and(5)damages as the
proximate result ofthe conspiracy." Livers v. Schenck, 700 F.3d 340, 360-61 (8th Cir. 2012)
(citation omitted)."The plaintiff is additionally required to prove a deprivation of a constitutional

right or privilege in order to prevail on a § 1983 civil conspiracy claim." White v. McKinley, 519
F.3d 806, 814(8th Cir. 2008){ddmg Askew v. Millerd, 191 F.3d 953, 957(8th Cir. 1999)). A

plaintiff can show the existence of a conspiracy through circumstantial evidence, but a plaintiff
must allege "specific facts tending to show" that the defendants reached an agreement to deprive
the plaintiff of a constitutional right or a meeting ofthe minds. See Murray v. Lene, 595 F.3d
868, 870(8th Cir. 2010). Here, Tomquist has not alleged facts that tend to show a meeting ofthe

minds or that the defendants reached an agreement to deprive him of a constitutional right. See
Doc. 1 at 14. Thus, Tomquist's conspiracy claim is dismissed without prejudice for failure to

23

state a claim upon which relief may be granted imder 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(l).
10.

SDCL §§ 27A-12-1 and 27A-12-1.1

Tomquist claims that"many SD Codified Laws including(SDCL § 27A-12-1). 'Persons'

defined under(SDCL § 27A-12-L1)" apply to his claims. Doc. 1 at 8-9. SDCL § 27A-12 applies
to the care, treatment, and rights of mentally ill persons. SDCL § 27A-12-1 states that
Each person has the right to a humane environment that affords appropriate
individual privacy, individual dignity and reasonable protection from harm. These
rights shall be respected at all times and upon all occasions, including any occasion
when the person is taken into custody, detained, or transported in accordance with
the provisions ofthis title.
SDCL § 27A-12-1.1 defines "person" as "any individual subject to the authority ofthis title,
either on a voluntary or involuntary basis." The Court questions the applicability ofSDCL
§ 27A-12-1 to Tomquist's claims because he does not allege that he has been involuntarily
committed to the SDSP for mental health treatment. See generally Doc. 1. It is also unclear if
SDCL § 27A-12-1 provides a private right of action. Even if SDCL § 27A-12-1 was applicable

and did provide a private right of action, Tomquist has not alleged that his rights to privacy and
dignity are violated because he suffers from a mental illness. See generally Doc. 1. Tomquist
claims that because he has autism he was placed in situations that "normal" people would not be
subjected to. Id. at 3. However, he has not alleged any specific situations that he has been
subjected to nor has he alleged a deprivation of his right to privacy and dignity because he
suffered from a mental illness. Id. Thus, Tomquist's claims under SDCL §§ 27A-12-1 and 27A12-1.1 are dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).

24

MOTION TO APPOINT COUNSEL

Tomquist filed a motion to appoint counsel. Doc. 4."A pro se litigant has no statutory or
constitutional right to have counsel appointed in a civil case." Stevens v. Redwing, 146 F.3d 538,
546 (8th Cir. 1998)(citing Wiggins v. Sargent, 753 F.2d 663,668 (8th Cir. 1985)). In
determining whether to appoint counsel to a pro se litigant's civil case, the district court
considers the complexity ofthe case, the ability ofthe indigent litigant to investigate the facts,
the existence of conflicting testimony, and the indigent's ability to present his claim. Id. (citation
omitted). Tomquist's claims do not appear to be factually or legally complex, and his filings
clearly set forth his claims. Tomquist moves to appoint counsel because he is "Autistic and ha[s]

substantial learning disabilities and [is] completely unable to litigate this case AT ALL." Doc.4
at 1. "Although [a plaintiffs] mental condition is a factor that may weigh in his favor, it does not

of itself require that counsel be appointed." Edgington v. Mo. Dep't ofCorr., 52 F.3d 111,780
(8th Cir. 1995)(citing Phelps v. U.S. Fed. Gov't, 15 F.3d 735, 737(8th Cir. 1994)), abrogated on
other grounds by Doe v. Cassel, 403 F.3d 986(8th Cir. 2005). Considering these factors, the
Court does not deem it necessary to appoint coimsel at this early stage in litigation.
CONCLUSION

Accordingly, it is ORDERED:

1. That Tomquist's claims against the State of South Dakota and the South Dakota State
Penitentiary

Industries

are

dismissed

with

prejudice

under

28

U.S.C.

§§ 1915(e)(2)(B)(ii) and 1915A(b)(l).

2. That Tomquist's claims against Govemor Noem,Wasko,Bittinger,Pechous, Morrison,
Unknown Employees(Inmate Accounting at SDSP), Unknown Employees(at SDSP),

25

Avera, and Aramark 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).
3. That Tomquist's Fourteenth Amendment due process claims against Pechous,
Morrison, All Unknown Employees at SDSP, and All Unknown Employees in
Accounting in their official capacities for injunctive relief and their individual
capacities for money damages survive § 1915A screening.
4. That Tomquist's claims for violation of prison policy are dismissed with prejudice
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
5. That Tomquist's claims under the CARES Act against Morrison, AIT Unknown

Employees at SDSP, and All Unknown Employees in Accounting are dismissed -with
prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).

6. That Tomquist's claims under 18 U.S.C. §§ 241 and 242 are dismissed with prejudice
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).

7. That Tomquist's remaining claims are dismissed without prejudice imder 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(l).

8. That Tomquist's motion to appoint counsel. Doc. 4,is denied.
9. That the Clerk shall send blank summons forms and Marshal Service Forms (Form

USM-285) to Tomquist so that he may cause the complaint to be served upon
Defendants Pechous and Morrison.

10. That Tomquist, after identification of All Unknown Employees at SDSP and All

Unknown Employees in Accounting, shall inform the Clerk of Court ofthe unknown
defendants' identities. At such time, the Clerk of Court shall send Tomquist blank
summonses and Marshal Service Forms for the identified defendants.

26

11. That Tomquist shall complete and send the Clerk of Court a separate summons and
USM-285 form for Pechous and Morrison within thirty days ofthe date ofthis order.
Upon receipt of the completed summons and USM-285 forms, the Clerk of Court will
issue the summons. If the completed summons and USM-285 form are not submitted
as directed, the complaint may be dismissed.

12. That the United States Marshal Service shall serve the completed summonses,together
with a copy of the complaint (Doc. 1) and this order, upon Defendants Pechous and
Morrison. The United States Marshal Service shall serve the completed summonses,
together with a copy of the complaint (Doc. 1) and this order, upon All Unknown
Employees at SDSP and All Unknown Employees in Accounting after Tomquist
provides the Clerk with their identities.
13. That defendants will serve and file an answer or responsive pleading to the complaint
on or before 21 days following the date ofservice or 60 days ifthe defendants fall under
Fed. R. Civ. P. 12(a)(2) or(3).
14. That Tomquist will keep the Court informed of his current address at all times. All
parties are boimd by the Federal Rules of Civil Procedure and by the Court's Local
Rules while this case is pending.
DATED August

2024.
BY THE COURT:

iPu

ATTEST:

^wrence L. Pierso
Piersol

MATTHEW W.THELEN,CLERK

United States District Judge

27