Hanic v. Weber et al

Filing 14

ORDER re: Affidavit of Douglas Weber due by 6/29/12. Signed by US Magistrate Judge John E. Simko on 6/6/12. (Attachments: # 1 Affidavit of Douglas Weber in Miller v. Weber)(CMS)

Case 4:06-cv-04083-LLP Document 22

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DMSION

FILED
AUG 29

200l

~~

o-o-o-o-o-o~-o~-o-o-o-o-o-o-o-o-o~-o-o-o-o-o

CIV.06-4083

GERALD MILLER
Petitioner,
AFFIDAVIT OF DOUGLAS
WEBER

vs.
DOUGLAS WEBER
Warden. South Dakota State Penitentiary,
Respondent.
o-o-o-o-o-o~o-o-o-o-~~-o-o~o-o-o-o-o-o-o-o

Defendant Douglas Weber, submits the following response to the Court's
Order dated August 22, 2007 in which the Court requested an Affidavit explaining
in detail:
(1) when the Department of Corrections closed the law barary at the South
Dakota State Penitentiary and other DOC facilities;
(2) what provision were made for legal assistance to inmates during the time
the law library was closed;
(3) when the law library at the SDSP and other DOC facilities reopened;
(4) which DOC facilities other than the South Dakota State Penitentiary, if
any, have onsite law libraries~
(5) provide a list oflegal books, authorities, treatises statutes, etc. which
have been provided in said law libraries since they were reopened;
(6) explain in which DOC facility Mr. Miller has been housed since his
incarceration began until the date of his federal habeas petition was filed
(May 16, 2006).

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Cue Number 06-4083
Name ofdocument: Affidavit of Douglas Weber
Page 2

STATE OF SOUTH DAKOTA )
: SS.
COUNTY OF MINNEHAHA
1.

)

At all times relevant to the above-entitled action, I have been

employed by the South Dakota Department of Corrections as the Warden of the
South Dakota State Penitentiary ("SDSP"). My current position title is Chief
Warden and Director of Prison Operations.
2.

To answer question (6) first, inmate Gerald Miller has been housed in

only one prison facility, the Jameson Prison Annex (JPA), since his arrival at the
South Dakota State Penitentiary (SDSP) in November, 1999.
3.

In response to question (I), the South Dakota Department of

Corrections (SDDOC) closed the law libraries at the Penitentiary and Jameson
Prison Annex on September 23, 1997, SEE, Document 1, Memorandum of Douglas

L. Weber, RE: Closing of Law Libraries. The library at Dwfee State Prison, in
Springfield, South Dakota, would have closed during the same approximate time
period but I am unaware of the exact date. See also, Lewis v. Casey, 518 U. S. 343
(1996) (Bounds v. Smith, 430 U. S. 817 (1977) did not create a right to a law library

or legal assistance; it merely acknowledged a right to court access).
4.

Question (2), regards the legal assistance available to inmates after the

law library closed. After closing the law library in September, 1997. contract
attorneys were available to assist inmates in limited circumstances. These
circumstances included the preparation of initial pleadings involving Habeas Corpus

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CIWl Number 06-4083

Name ofdocument: Afficlnvil ofDougJas Weber
Page)

and §1983 conditions of confinement claims, SEE, Affidavit of inmate legal
assistance contractor D. Sonny Walter. Document 2. SEE also, Document 3.
"SDDOC Legal Assistance Office Contracts, July 1, 1997 through June. 2008" (lists
the names and facilities covered by each of the attorneys, by fiscal year, July 1
through June 30). Each contract is let for legal services during a single fiscal year. I
explained my initial understanding of the conditions of this legal assistance in Doc.
1,' 2,3,4. On September 29, 1997, I issued another Memorandum "Clarification of
legal advisor's duties", SEE, Weber Affidavit, Document 4,

~

1,2. SEE also,

Document 5, Pellegrino v. Jank/ow, Civ. 98-4126, (D.S.D.) Memorandum Opinion
of Judge Lawrence Piersol, September 13, 2002, page 22, for a description of the
history of the law library closings.
5.

The response to question (3), is regarding when the law libraries

reopened. On or about May 17, 1999, then Department Secretary Jeff Bloomberg
agreed to and signed an "Settlement Agreement and Release" (attached hereto as
Document 6 and incorporated herein by reference) in the cases of Morris v. State,
Civ. 98-4118 (D.S.D) and Scholl v. Delaney, Civ. 98-4068 (D. S.D.). The minimum
number and type of legal reference books are listed on pages one and two of the
settlement agreement and a copy of the attorney's inmate legal assistance contract
(as in effect at the time) is attached to the end of the Settlement Agreement.
Following the Settlement Agreement in May, 1999 some legal reference
materials were made available to inmates immediately. However, due to the need to

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Cue Number Q6..4083

Name ofdoc:umc:nt; Affidavit ofDouglu Web«
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order new law books and updates the SDSP and JPA law libraries were not fully
restored and reopened until July 9, 1999. The library at Mike Durfee State Prison, in
Springfield, South Dakota, reopened at the same approximate time but I am Wlaware
ofthe exact date.
Inmate Miller was not incarcerated at the SDSP, Jameson Prison Annex until
November, 1999.
Following the reopening of the law libraries the SDDOC promulgated a new
Department policy IA.15 "Inmate Legal Assistance" which was signed by Secretary
Bloomberg on August 12, 1999, SEE~ Docwnent 7. Please note that Attachment 1 of
this document is a list of the minimum number and type of legal reference books
that will be provided to inmates. These policies are periodically reviewed and
updated.
The current version of the SDDOC "Inmate Legal Assistance" policy, now
nwnbered 1.3.E.l and signed by the current Department Secretary Tim Reisch on
August 15,2007, is attached, SEE. Docwnent 8. Please note that Attachment 1 of
this document still lists the minimum nwnber and type of legal reference books that
will be provided to inmates.
6.

Question (4), requests infonnation on which SDDOC facilities have

on site law libraries. The three largest facilities have on site law libraries. These
facilities are the South Dakota State Penitentiary (SDSP), the Jameson Prison Annex
(JP A), both in Sioux Falls, and the Mike Durfee State Prison (MDSP) in

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Springfield. Each of these facilities has an inmate legal assistance attorney or
paralegal either on site) or on a regular visit schedule and an inmate may write to the
contract attorney to submit a question or request a consultation with the contract
attorney. All adult SDDOC facilities (including Redfield, yankton and Rapid City
mjnimum units) have an inmate legal assistance attorney contracted to provide legal

assistance for preparation of § 1983 condition of confinement claims and Habeas
Corpus appeals. SEE, Docwnent 3, "SDDOC Inmate Legal Assistance Office
Contracts, July 1, 1997 through June, 2008".
7.

Question (5) requests a list of legal materials available to inmates

through the law libraries since they were Ieopened in 1999. For comparison
purposes, for the minimum legal reference materials required under SnDOC policy
SEE, Doc. 6, Scholl v. DeLaney at page 1 and 2 or either Doc. 7, Attachment 1 or
Doc. 8, Attachment 1, though some changes have been made over the years.
For the list of legal reference materials currently available to inmates at the
SDSP and JPA includes a full set ofthe South Dakota Codified Laws (SDCL) thirty
seven (37) volumes, a full set of American Jurisprudence, 2nd Edition (AmJur2d)
one hundred and sixty two (162) volumes. Further legal reference books in the
SDSP and JPA libraries include the following:
USCA: United States Constitution and Amendments
42 USCA 1981 - 1983
28 USCA 2241 - 2254
West Federal Civil Judicial Procedures and Rules
Local Rules of the U.S. Court of Appeals for the Eighth Circuit Court

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Case Number 06-4083

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United States District Court Local Rules, District of South Dakota
M. Schwartz & J. Kirkli.n, Section 1983 Litigation. Claims and defenses
Black's Law Dictionary
ARSD Article 17 (Corrections)
South Dakota Criminal Pattern Jury Instructions
All publicly available Department of Corrections policies.
All publicly available South Dakota State Penitentiary Operation Memoranda
There are also miscellaneous single volumes or treatises that are available in one
library but not the other. To illustrate that point I have included a copy of a blank
"Legal Reference Book Inventory", SEE, Document 9. On the second page are
listed several such books.

Dated this

2. ':I

day of August, 2007.

Subscribed and sworn to before me
this eAqilt.day of August. 2007.

{SEAL}

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Cue Nwnber 06-4083

Name of doc:umeIN: Affidavit ofDouglu Web«

Page 7

CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of August. 2007, I sent by United States
mail, postage prepaid, a true and correct copy of the foregoing Affidavit of Douglas

Weber and the attached docwnents nwnbered, 1-9 to the following:
Gerald Miller, #35867

Jameson Prison Annex

P. O. Box 5911

Sioux Falls, SD 57117-5911

Petitioner Pro Se

Attorneys for the Defendants