Bell v. Young et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
SHANE DOUGLAS BELL,
Plaintiff,
vs.
DARIN YOUNG, WARDEN, INDIVIDUAL
AND OFFICIAL CAPACITY; JENNIFER
DREISKE, DEPUTY WARDEN,
INDIVIDUAL AND OFFICIAL CAPACITY;
SETH HUGHES, UNIT COORDINATOR,
INDIVIDUAL AND OFFICIAL CAPACITY;
DENNIS KAEMINGK, SECRETARY OF
CORRECTIONS, INDIVIDUAL AND
OFFICIAL CAPACITY; BOB DOOLEY,
DIRECTOR OF PRISON OPERATIONS,
INDIVIDUAL AND OFFICIAL CAPACITY;
CRAIG MOUSEL, CORRECTIONAL
OFFICER, INDIVIDUAL AND OFFICIAL
CAPACITY; AND SCO MOISAN,
SENIOR CORRECTIONAL OFFICER,
INDIVIDUAL AND OFFICIAL CAPACITY,
Defendants.
4:16-CR-04046-VLD
ORDER ON PLAINTIFF’S PETITION
FOR WRIT OF MANDAMUS
[DOCKET 160]
INTRODUCTION
This matter was before the court on plaintiff Shane Bell’s pro se
complaint pursuant to 42 U.S.C. § 1983. 	See Docket No. 1. 	On February 17,
2017, the district court, the Honorable Lawrence L. Piersol, appointed counsel
to represent Mr. Bell in this matter. 	See Docket No. 83. 	An amended
complaint was thereafter filed by counsel on Mr. Bell’s behalf. 	See Docket
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No. 89. 	In December 2017, the case was transferred to this magistrate judge
on the consent of all parties. 	See Docket No. 102. 	While a motion for
summary judgment was pending, the parties settled all claims in this matter
and moved to dismiss the case with prejudice. 	See Docket No. 140. 	The court
accordingly granted the motion, dismissed the matter with prejudice, and
entered judgment on February 5, 2019. 	See Docket No. 141.
On October 1, 2019, Mr. Bell moved the court pro se for an order
enforcing the terms of the settlement against defendants. 	See Docket No. 143.
The court entered an order granting in part Mr. Bell’s motion on October 31,
2019. 	See Docket No. 149. 	In his motion, Mr. Bell alleged the South Dakota
Department of Corrections (“SDDOC”) had retaliated against him in violation of
paragraph 3c of the settlement agreement. 	See Docket No. 149 at p. 8; 	Docket
No. 143 at p. 1. 	He asserted that prison employees repeatedly discussed within
his hearing a plan to have him moved to A-floor, a part of the South Dakota
State Penitentiary (“SDSP”) used for prisoners who are being disciplined.
Docket No. 149 at p. 8; Docket No. 146 at p. 7. 	Mr. Bell also alleged prison
employees called him names like “snitch,” “rat,” “lawyer rat,” “Buddha rat,”
“spiritual rat,” “crazy,” and “retarded.” 	Docket No. 146 at pp. 2, 7. 	Mr. Bell
also asserted that prison employees gave other prisoners information about
him. 	Docket No. 149 at p. 8; Docket No. 143 at p. 2.
The defendants did not deny these allegations. 	See Docket No. 149 at
p. 8. 	Instead, they argued that mere name calling and open discussions of
plans to move Mr. Bell, short of taking any action to relocate him, is not
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actionable as “retaliation.” 	Id. 	In ruling on Mr. Bell’s motion to enforce the
settlement agreement, the Court rejected the defendants’ reliance on the
narrow legal definition of actionable retaliation under 42 U.S.C. § 1983, finding
that the parties’ settlement agreement was not limited to a narrow legal
definition of retaliation. 	Docket No. 149 at p. 8. 	Instead, the defendants
promised broadly under the terms of the settlement agreement to refrain from
any “unlawful adverse effect” visited upon Mr. Bell by prison officials as a
result of his pursuing the underlying lawsuit. 	See Docket No. 140-1 at
p. 2, ¶ 3c.
Because the defendants did not deny Mr. Bell’s allegations, which were
supported by his affidavit, the court accepted them as true. 	Docket No. 149 at
p. 8. 	The court found that Mr. Bell’s allegations supported an inference of acts
by defendants and their employees that were designed to harass, worry, and
endanger Mr. Bell’s safety among his fellow prisoners. 	Id. 	Without finding that
these acts constituted unlawful adverse effects, as contemplated in the
settlement agreement, the court found that these actions were not within the
spirit of paragraph 3c of the parties’ agreement. 	Id. 	The court ordered
defendants to reprint paragraph 3c and distribute it to all prison employees
who have contact with Mr. Bell. 	The court ordered defendants to ensure that
each such employee signed an acknowledgement that they have read and
understood the provision as it relates to Mr. Bell. 	Id. at p. 9. 	The court also
ordered the defendants to preserve for three years certain audio recordings
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from SDSP concerning Mr. Bell. 	Id. 	The court denied all other remedies
sought by Mr. Bell. 	Id.
On December 9, 2019, Mr. Bell filed a motion to appoint counsel (Docket
No. 150), which the court, on December 12, 2019, denied, directing Mr. Bell to
file a new complaint and pay a new filing fee if he wished to pursue claims on
the new matters mentioned in his motion (Docket No. 151).
On February 20, 2020, Mr. Bell filed a motion to appoint a monitor to
ensure SDDOC complied with its no-retaliation obligations under the
settlement agreement. 	See Docket No. 152. 	The next day, the court denied
Mr. Bell’s motion. 	See Docket No. 158.
Mr. Bell, again acting pro se, has filed a motion seeking a writ of
mandamus to enforce the court’s October 31, 2019, order and, in turn, the
settlement agreement. 	See Docket No. 160. 	Defendants resist the motion,
asserting they have not violated the terms of the agreement. 	See Docket
No. 163. 	Mr. Bell has filed a reply to defendants’ response. 	See Docket
No. 171. 	Mr. Bell’s motion raises two main issues: (1) are defendants,
individually or through SDDOC employees, violating the retaliation provision in
the settlement agreement by engaging in certain specific actions towards
Mr. Bell, and (2) have defendants met their court-ordered obligation to reprint
paragraph 3c from the settlement agreement and distribute it to all prison
employees who have contact with Mr. Bell, and to have each such employee
sign an acknowledgement that they have read and understood the provision as
regards Mr. Bell?
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DISCUSSION
A. 	Whether Mr. Bell Is Entitled to Mandamus Relief
While Mr. Bell’s motion is styled as a request for a writ of mandamus, the
motion does not specify the statute authorizing its request for mandamus
relief. 	Nor does the defendants’ response address the propriety of this court’s
exercise of jurisdiction over Mr. Bell’s claim for mandamus relief. 	The court
will therefore assume Mr. Bell has moved the court under the Mandamus Act,
28 U.S.C. § 1361. 	Section 1361 reads as follows:
The district courts shall have original jurisdiction of any action in
the nature of mandamus to compel an officer or employee of the
United States or any agency thereof to perform a duty owed to the
plaintiff.
See 28 U.S.C. § 1361 (2018).
A writ of mandamus is a “drastic” remedy “to be invoked only in
extraordinary situations.” 	Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34
(1980) (citations omitted). 	Since Marbury v. Madison, 5 U.S. 137 (1803), the
law has been clear that a court may issue a writ of mandamus against an
officer or employee of the United States only in cases where “the plaintiff can
establish (1) a clear and indisputable right to the relief sought, (2) the state
officer has a nondiscretionary duty to honor that right, and (3) there is no other
adequate remedy.” 	Mitchael v. Colvin, 809 F.3d 1050, 1054 (8th Cir. 2016)
(quotation omitted); see also Heckler v. Ringer, 466 U.S. 602, 616 (1984) (A writ
of mandamus “is intended to provide a remedy for a plaintiff only if he has
exhausted all other avenues of relief and only if the defendant owes him a clear
nondiscretionary duty.”) (citations omitted); Allied Chem. Corp., 448 U.S. at 35
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(“In order to insure that the writ will issue only in extraordinary circumstances
this Court has required that a party seeking issuance have no other adequate
means to attain the relief he desires, . . ., and that he satisfy the burden of
showing that [his] right to issuance of the writ is clear and indisputable.”)
(internal quotation omitted). 	A plaintiff does not have a “clear and
indisputable” right to relief in cases where the defendant’s duty is
discretionary. 	Allied Chem. Corp., 449 U.S. at 36 (citing Will v. Calvert Fire
Ins. Co., 437 U.S. 655, 666 (1978) (plurality opinion).
But district courts do not have any jurisdiction under 28 U.S.C. § 1361
to compel a state or its officers to perform any duty owed a plaintiff under state
law. 	Longie v. Spirit Lake Tribe, 400 F.3d 586, 591 (8th Cir. 2005). 	See also
Winters v. Winters, No. 19-CV-3177-SRN-KMM, 2020 WL 1049145, at *4
(D. Minn. Feb. 11, 2020); Morse v. Vinson, No. 3:09CV00153 JMM, 2010 WL
385945, at *2 (E.D. Ark. Jan. 27, 2010). 	This court lacks mandamus authority
to compel a state official—as opposed to a federal official—to act in a particular
manner. 	Mr. Bell has not named a single federal employee or agency as a
defendant, and he complains only about his treatment by the SDDOC, not any
federal agencies or actors. 	The Mandamus Act does not give this court power
over those entities to issue the orders Mr. Bell seeks.
B. 	Liberal Construal of Mr. Bell’s Request for Mandamus Relief
Although a writ of mandamus should not be issued, this court must
construe pro se filings liberally. 	See, e.g., Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 849 (8th Cir. 2014). 	Based upon the claims raised by
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Mr. Bell in his motion, the court construes it as a successive motion for
enforcement of the settlement agreement under a breach of contract theory
and, as to Mr. Bell’s claims about the reprinting and distribution of paragraph
3c. a motion for a finding of civil contempt for failure to comply with the court’s
October 31, 2019, order.
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 	“The Supreme Court held in
Kokkonen that district courts do not have inherent power to enforce a
settlement agreement entered into by parties in federal court.” 	Myers v.
Richland Cty., 429 F.3d 740, 745 (8th Cir. 2005) (citing Kokkonen, 511 U.S. at
380-81). 	Because an action to enforce a settlement agreement is a claim for
breach of contract, it should be heard in state court unless it has “its own
basis for jurisdiction.” 	Kokkonen, 511 U.S. at 378; Myers, 429 F.3d at 745.
Although the Kokkonen Court found no basis for jurisdiction where the
district court’s order did not even mention the settlement agreement, the
Court explained:
[I]f the parties’ obligation to comply with the terms of the
settlement agreement had been made part of the order of
dismissal—either by separate provision (such as a provision
“retaining jurisdiction” over the settlement agreement) or by
incorporating the terms of the settlement agreement in the order.
In that event, a breach of the agreement would be a violation of the
order, and ancillary jurisdiction to enforce the agreement would
therefore exist.
511 U.S. at 381. 	See also Adduono v. World Hockey Ass’n, 824 F.2d 617,
621-22 (8th Cir. 1987) (holding that the district court lacked jurisdiction where
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it did not incorporate the settlement agreement into the dismissal order or
expressly retain jurisdiction to enforce the settlement agreement).
In the absence of an independent basis for federal jurisdiction, “ancillary
jurisdiction,” as the term is used in Kokkonen, can arise in two different ways.
Kokkonen, 511 U.S. at 382. 	First, a district court can enforce a settlement
where the settlement is, “in varying respects and degrees, factually
interdependent” with a claim that had been presented for adjudication. 	Id. at
379. 	The second way permits judicial enforcement when necessary for the
district court “to function successfully, that is, to manage its proceedings,
vindicate its authority, and effectuate its decrees.” 	Id. at 380.
Here, the court has independent jurisdiction to enforce the terms of the
settlement agreement because the court, in its February 5, 2019, order
dismissing the action, expressly retained such jurisdiction. 	See Docket
No. 141. 	Further, this court has ancillary jurisdiction to enforce the settlement
agreement to vindicate its authority and effectuate its decrees. 	Specifically, in
its October 31, 2019, order on Mr. Bell’s motion to enforce the settlement
agreement, this court ordered the defendants to reprint paragraph 3c of the
settlement agreement, distribute it to all SDSP employees who have contact
with Mr. Bell, and have each such employee sign an acknowledgement that
they have read and understood it. 	See Docket No. 149 at p. 9. Defendants
acknowledge they have not technically complied with this order. 	Docket
No. 163 at pp. 2-5. 	For these reasons, the court construes Mr. Bell’s pleading
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as a successive motion to enforce the settlement agreement and a motion for a
finding of civil contempt and considers his claims on their merits.
C. 	South Dakota Contract Law
As this court explained in its October 31, 2019, order, settlement
agreements are contracts. 	As such, they are governed by state contract law.
Lewis v. Benjamin Moore & Co., 574 N.W.2d 887, 889 (S.D. 1998). 	There is no
separate federal contract law which would apply under these circumstances in
this case to this agreement. 	Instead, interpretation of the settlement
agreement is governed by South Dakota state law because the agreement was
negotiated exclusively in South Dakota by residents of this state. 	S.D. Codified
Laws § 53-1-4 (2018); Great West Cas. Co. v. Hovaldt, 603 N.W.2d 198, 201
(S.D. 1999).
The interpretation of a contract is a question of law for the court to
determine. 	Lillibridge v. Meade School Dist. #46-1, 746 N.W.2d 428, 431 (S.D.
2008). 	When interpreting a contract, “effect will be given to the plain meaning
of its words.” 	In re Dissolution of Midnight Star, 724 N.W.2d 334, 337 (S.D.
2006). 	Courts must “give effect to the language of the entire contract and
particular words and phrases are not interpreted in isolation.” 	Id. (internal
citation omitted). 	When provisions of a contract conflict, the more specific
provision controls the more general provision. 	Spiska Eng’g, Inc. v. SPM
Thermo-Shield, Inc., 730 N.W.2d 638, 645 (S.D. 2007). 	Courts look “to the
language that the parties used in the contract to determine their intention.”
Pauley v. Simonson, 720 N.W.2d 665, 667-68 (S.D. 2006).
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If the language of the contract is clear and unambiguous, “it is the duty
of [the] Court to declare it and enforce it.” 	Id. at 668 (quotation omitted). 	But
if the contract is ambiguous, then “parol and extrinsic evidence may be utilized
‘to show what [the parties] meant by what they said . . . .’ ” 	Id. (quoting Jensen
v. Pure Plant Food Int’l, Ltd., 274 N.W. 2d 261, 264 (S.D. 1979)). 	A contract “is
ambiguous when it is fairly susceptible to two constructions.” 	Fall River Cty. v.
S.D. Pub. Assur. Alliance, 623 N.W.2d 735, 737 (S.D. 2001). 	If a contract is
ambiguous, it is construed against the scrivener of the contract—the party who
drafted the contract. 	Ass Kickin Ranch, LLC v. N. Star. Mut. Ins. Co., 822
N.W.2d 724, 727 (S.D. 2012); Pete Lien & Sons, Inc. v. First. Am. Title Ins. Co.,
478 N.W.2d 824, 827 (S.D. 1991). 	This is because the “language employed is
that of the [scrivener] and it is consistent with both reason and justice that any
fair doubt as to the meaning of its own words should be resolved against it.”
Mut. Life Ins. Co. of N.Y. v. Hurni Packing Co., 263 U.S. 167, 174 (1923). 	The
scrivener rule of construction applies even when the non-drafting party had the
benefit of counsel’s review of the document. 	Pesicka v. Pesicka, 618 N.W.2d
725, 727 n.2 (S.D. 2000); Clements v. Gabriel, 472 N.W.2d 480, 483 (S.D.
1991). 	It also applies when a form contract is supplied by one party. 	Hicks v.
Brookings Mall, Inc., 353 N.W.2d 54, 56 (S.D. 1984). 	However, the court may
not seek out a “strained or unusual meaning for the benefit of the” other party.
Chord v. Reynolds, 587 N.W.2d 729, 732 (S.D. 1999).
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D. 	Mr. Bell’s Claims for Relief
In his request for a writ of mandamus, Mr. Bell makes three specific
claims for breach of the non-retaliation provisions of the settlement agreement.
First, Mr. Bell alleges SDSP retaliated against him in breach of the settlement
agreement by denying him delivery of a legal resource book. 	See Docket No.
160 at p. 4. 	Second, Mr. Bell alleges SDSP retaliated against him in breach of
the settlement agreement by shaking down his cell to take his legal books, legal
notes, a legal journal,1 and other legal work and disclosing their information to
the defendants, other prison staff, and inmates at SDSP. 	Id. at pp. 4-5. 	Third,
Mr. Bell claims he is being retaliated against in violation of the settlement
agreement because (i) issues of a magazine to which he subscribes were
rejected by SDSP for violating the prison’s policy against sexually explicit or
pornographic material and (ii) prison employees are punishing him by
interfering with a Buddhist group Mr. Bell facilitates. 	Id. at pp. 7-8.
Mr. Bell has also stated a claim for a finding of civil contempt. 	He alleges
the defendants violated this court’s October 31, 2019, order by failing to
exactly perform the court-ordered reprinting of paragraph 3c from the
settlement agreement, distributing it to all prison staff who have contact with
Mr. Bell, and having them sign an acknowledgment that they had read and
understood it. 	Id. at pp. 5-6.
1 Mr. Bell alleges this legal journal was taken from him for a period of 8 days.
Docket 160 at p. 4. 	Mr. Bell sent this legal journal to the Clerk of Court at the
United States Courthouse in Sioux Falls, South Dakota, where it remains.
Docket No. 162.
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Mr. Bell also renews his claims that the defendants have violated
paragraph 3c of the settlement agreement because SDSP employees have
continued unabated in the conduct at issue in the October 2019 motion to
enforce the agreement. 	Mr. Bell alleges that, despite this court’s October 31,
2019, order, SDDOC employees have continued violating paragraph 3c by
repeatedly discussing a plan to relocate Mr. Bell to A-floor, a section of the
SDSP used for prisoners who are being disciplined. 	Docket No. 160 at p. 3.
Mr. Bell also claims that prison employees are still calling him names like
“snitch,” “rat,” “lawyer rat,” and “Buddha rat.” 	Id. 	Mr. Bell claims the
perpetuation of this behavior amounts to breach of contract. 	Id. at pp. 4, 6.
The defendants deny Mr. Bell’s claims and assert he is not entitled to
relief because he has not adequately stated claims for retaliation. 	See Docket
No. 163 at pp. 5-7. 	The defendants’ argument is misguided. 	Mr. Bell is not
raising freestanding retaliation claims for violation of his First Amendment
Rights. 	Instead, Mr. Bell’s claims sound in breach of contract and civil
contempt. 	As this court explained in its October 2019 order on Mr. Bell’s
motion to enforce the settlement agreement, the defendants agreed not only
that Mr. Bell would not be the subject of retaliation, but also that Mr. Bell
would be free from any unlawful adverse effect stemming from his prosecution
of the underlying lawsuit. 	See Docket No. 140-1 at p. 2, ¶ 3c. 	The defendants’
narrow focus on the legal definition of retaliation is, especially considering the
admonitions in this court’s October 2019 order, myopic. 	The question the
court considers is not, as the defendants frame it, whether Mr. Bell was the
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subject of unlawful retaliation. 	Rather, the questions before the court are
whether the SDDOC subjected Mr. Bell to unlawful adverse effects, as
proscribed by the settlement agreement, because of Mr. Bell’s involvement in
the underlying lawsuit, and whether the defendants are in contempt of court
for violating a court order.
1. 	Breach of Contract Related to the Legal Resource Book
As his first claim for breach of contract, Mr. Bell asserts that the
defendants breached the settlement agreement by denying him delivery of a
legal resource book. 	See Docket No. 160 at p. 4. 	Mr. Bell also alleges that,
before the settlement, he was able to receive books from the publisher of the
denied book but, since the settlement, legal books he buys are rejected. 	Id.
Despite his general allegation, Mr. Bell gives details about only one book.
The defendants assert that SDSP’s rejection of this book has nothing
whatsoever to do with Mr. Bell’s prosecution of the underlying lawsuit. 	See
Docket No. 163 at p. 11. 	The court agrees. 	SDDOC Policy 1.5.D.3, which the
defendants attached as Exhibit 16 to their response to Mr. Bell’s request for
mandamus relief, provides as follows: “Stickers, tape, self-adhesive labels
(return address labels), sealing wax and sticky or foreign substances not
originally part of the envelope, are not permitted on the envelope.” 	SDDOC
Policy 1.5.D.3, Inmate Correspondence, § IV.2.B.3 (eff. Aug. 21, 2019), Docket
No. 163-16 at p. 5. 	The policy further states: “Envelopes that do not meet the
requirements will be returned unopened to the sender with a brief description
of the reason the envelope was rejected.” 	Id.
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Based on the record supplied by the defendants and Mr. Bell, the SDSP
mailroom’s processing of Mr. Bell’s book proceeded according to this policy,
and Mr. Bell was notified that the book was returned to sender and why. 	The
mailroom correspondence rejection notice states, “Return to Sender: Address
labels are not allowed[.]” 	Def. Ex. 15, Docket No. 163-15 at p. 2. 	Mr. Bell then
proceeded with administrative review of the decision to return the book to
sender; that remedy was ultimately denied. 	See Def. Exs. 17-22, Docket Nos.
163-17 through 163-22; Ptf. Ex. 6, Docket No. 160-1 at pp. 34-37. 	As stated in
the administrative remedy denials, the book was rejected and returned to
sender according to SDSP policy because the package containing the book had
an adhesive return address label. 	Def. Ex. 20, Docket No. 163-20.
The record reflects that the mailroom’s rejection of this book was not
retaliation or unlawful adverse effect arising from Mr. Bell’s pursuit of the
underlying lawsuit. 	Instead, it was the application of a department-wide policy
to Mr. Bell. 	The settlement agreement does not insulate Mr. Bell from
unfavorable consequences of universal prison policies. 	Here, there is no
evidence of animus toward Mr. Bell rooted in his prosecution of the underlying
lawsuit. 	Therefore, the defendants did not violate the settlement agreement by
rejecting Mr. Bell’s book according to prison policy.
To the extent Mr. Bell is claiming a First Amendment violation based on
the rejection of his book, such a claim is outside the scope of this motion to
enforce the settlement agreement. 	If Mr. Bell wishes to further pursue a claim
based on these facts, he must initiate a new case.
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2. 	Breach of Contract Related to the Shakedowns of
Mr. Bell’s Cell
Next, Mr. Bell asserts the defendants breached the settlement agreement
because his cell was searched and his legal materials were taken and their
information disclosed to the defendants, other prison staff, and other inmates.
See Docket No. 160 at pp. 4-5. 	In support of his claim, Mr. Bell avers in his
affidavit that his legal journal was taken for eight days by SDSP Correctional
Officer Denning, who also took legal notes and read Mr. Bell’s legal papers and
disclosed information to other prison employees and inmates. 	See Bell Aff.,
Docket No. 160-1 at p. 3, ¶ 7. 	Mr. Bell avers this took place on August 2,
2020, in blue section on B-floor and was recorded by prison security
cameras. 	Id.
The defendants assert the shakedown of Mr. Bell’s cell was random and
not motivated by Mr. Bell’s pursuit of the underlying lawsuit. 	SDDOC policy
1.3.C.4, Inmate Personal Property, § IV.1.B (eff. Dec. 5, 2018) states, “[i]nmate
personal property is subject to search at any time.” 	“Regular searches of
inmate property will be conducted to ensure compliance with property rules
and to identify threats to safety or security (See DOC policy 1.3.A.5 Searches –
Institutions).” 	Id. at § IV.1.B.1.
It appears Mr. Bell is complaining of two discrete searches of his cell, one
on June 5, 2020, and another on August 2, 2020. 	As for the June 5, 2020,
search, Mr. Bell attached an incident report that describes the seizure of, along
with other items, five books, at least four or which were legal reference books.
Ptf. Ex. 4, Docket No. 160-1, p. 25. 	According to the report, these books were
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seized because they either had no cover, did not have a SDDOC number or
their SDDOC number had been blacked out. 	Id. 	Evidence submitted by the
defendants indicates that altered books without covers and books that do not
have SDDOC numbers on them are contraband subject to seizure under
SDDOC policy. 	Def. Ex. 24, Docket No. 163-24. 	The SDSP administrative
remedy response (id.) to Mr. Bell’s institutional grievance (Def. Ex. 23, Docket
No. 163-23) also informed Mr. Bell the books were seized because they were
considered contraband. 	Def. Ex. 24, Docket No. 163-24. 	“Possession of
contraband by an inmate may result in disciplinary action. 	Contraband may
be confiscated, identified and processed, in accordance with approved
institutional practices and procedures[.]” 	SDDOC policy 1.3.C.4, Inmate
Personal Property, § IV.1.B.2 (eff. Dec. 5, 2018).
Mr. Bell has offered no facts suggesting these books were seized in
retaliation or as another unlawful adverse effect for his pursuit of the
underlying lawsuit. 	Instead, the seizure of Mr. Bell’s property from his cell was
in accordance with broadly applied SDDOC and SDSP policies. The defendants
did not breach the settlement agreement by seizing these items.
Mr. Bell also alleges the defendants breached the settlement agreement
by seizing a legal journal from his cell on August 2, 2020. 	Ptf. Ex. 4, Docket
No. 160-1 at pp. 22-23. 	The journal was returned to Mr. Bell eight days later.
Docket No. 160 at p. 4. 	The defendants resist Mr. Bell’s allegation, arguing the
journal was seized during a search of Mr. Bell’s cell as a possible security risk
because it contained the names of numerous prison staff. 	Ptf. Ex. 4, Docket
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No. 160-1 at p. 24; Def. Ex. 27, Docket No. 163-27. 	SDDOC policy 1.3.C.5,
Inmate Forfeiture of Personal Property, § IV.1.A (eff. July 13, 2020), states:
“Inmates may be required to forfeit specified personal property items, as
directed by staff, for a specified time period . . ., usually for safety, security or
punitive reasons in response to negative behavior.” 	The journal was
investigated by the SDDOC Special Investigations Unit and deemed not a
security risk, at which point it was returned to Mr. Bell. 	Def. Ex. 27, Docket
No. 163-27.
Mr. Bell has not presented any facts suggesting SDSP took the legal
journal as retaliation for or as an unlawful adverse effect arising from his
participation in the underlying lawsuit. 	Nor has he shown any reason to
distrust the stated reason for seizing the legal journal—i.e., security concern
because it contained the names of numerous SDSP employees. 	The court
notes at least one other court in this circuit has found writings containing the
names of prison staff may be security risks. 	See Ireland v. Anderson, No. 3:13-
cv-3, 2015 WL 12843962, at *2-3 (D.N.D. Dec. 8, 2015), adopted by, 2016 WL
1170978 (D.N.D. Mar. 24, 2016). 	SDSP’s seizure of Mr. Bell’s legal journal
amounts to the application of general SDDOC policy to Mr. Bell. 	Even if this
application adversely affected Mr. Bell, Mr. Bell has not shown that any
adverse effect was rooted in animus toward him for pursuing the underlying
lawsuit. 	SDDOC did not breach the settlement agreement by seizing the
legal journal.
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Mr. Bell has offered only conclusory evidence that these searches were
initiated because of his participation in the underlying lawsuit. 	Without any
evidence of animus, these searches were lawful under SDDOC policy as
“regular searches . . . to ensure compliance with property rules and to identify
threats to safety or security.” 	SDDOC policy 1.3.C.4, Inmate Personal Property,
§ IV.1.B.1 (eff. Dec. 5, 2018).
However, Mr. Bell has alleged that he suffered retaliation or other
unlawful adverse effect because SDSP employees shared information contained
in his legal journal and otherwise observed during the searches of his cell with
the defendants, other SDSP staff, and other inmates. 	Docket No. 160 at
pp. 4-5; Bell Aff., Docket No. 160-1 at p. 3, ¶ 7. 	Because this claim fits better
within the framework of Mr. Bell’s general claim breach of contract claim than
this specific claim related to the searches of his cell, the court will discuss it in
section five, below.
In his reply, Mr. Bell offers some facts suggesting he was treated
differently than similarly situated inmates in the course of the August 2, 2020,
shakedown of his cell. 	Docket No. 171 at pp. 21-22. 	To the extent Mr. Bell is
stating a claim for a constitutional violation, such a claim is outside the scope
of this breach of contract motion. 	If Mr. Bell wishes to pursue a constitutional
claim related to alleged disparate treatment, he must initiate a new case.
To the extent Mr. Bell is claiming a First Amendment violation based on
the SDDOC’s alleged interference with his access to the courts, such a claim is
outside the scope of this motion to enforce the settlement agreement. 	If
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Mr. Bell wishes to pursue a First Amendment claim based on these facts, he
must initiate a new case.
3. 	Breach of Contract Related to Interference with Religious
Practices
Next, Mr. Bell asserts he is subject to retaliation and unlawful adverse
effects because SDSP is rejecting delivery of certain magazines about
Buddhism addressed to Mr. Bell as violative of SDDOC policy against sexually
explicit and pornographic material. 	See Docket No. 160 at p. 7. 	Mr. Bell also
claims that SDSP has visited an unlawful adverse effect on him by disrupting
the religious activities of a Buddhist group he leads. 	Id. at pp. 7-8. 	In support
of this second claim, Mr. Bell alleges that SDSP employees have interfered with
the Buddhist group by letting out members late for religious services or not at
all, repeatedly changing where the group meets without informing Mr. Bell, and
disrupting the group’s observance of religious holidays by changing meals or
failing to deliver fresh fruit to the group. 	Id.
First, Mr. Bell has not shown that the rejection of certain issues of the
Lion’s Roar magazine arose out of retaliation for his pursuit of the underlying
lawsuit. 	In support of his claim, Mr. Bell submitted an administrative remedy
request dated August 5, 2020, wherein he contested the rejection of the
September 2020 issue of Lion’s Roar. 	Ptf. Ex. 11, Docket No. 160-1 at p. 47;
Def. Ex. 33, Docket No. 163-33.2 The magazine was confiscated for its
2 Although Mr. Bell does not mention any earlier problems receiving his Lion’s
Roar magazines, the defendants have submitted evidence that at least two
issues of the magazine were confiscated for violating the SDDOC’s pornography
policy as early as December 2019. 	See Def. Exs. 28 & 31, Docket Nos. 163-28
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depiction of naked female breasts in violation of SDDOC policy 1.3.C.8,
Pornography. 	Ptf. Ex. 11, Docket No. 160-1 at pp. 49-50; Def. Ex. 34., Docket
No. 163-34. 	In his August 5, 2020, grievance, Mr. Bell referenced the decision
of the district court in Sisney v. Kaemingk, Civ. 15-4069, 2020 WL 3514025
(D.S.D. June 29, 2020). 	SDSP personnel responded to Mr. Bell’s grievance on
August 14, 2020, noting his reference to Sisney and advising him that “as of
now [the SDDOC pornography policy] remains unchanged.” 	Def. Ex. 35,
Docket No. 163-35.
In Sisney, the district court found the SDDOC policy prohibiting
pornography and sexually explicit material, as written, was unconstitutionally
overbroad, but that it would withstand facial challenge if simple nudity of
adults were removed from its definition of pornographic and sexually explicit
material. 	Sisney, 2020 WL 3514025, at *9. 	On July 17, 2020, the Sisney
defendants appealed the district court’s decision to the Eighth Circuit. 	Sisney
v. Kaemingk, 4:15-cv-04069-LLP, Notice of Appeal, ECF No. 170 (D.S.D.). 	The
same day, the Sisney defendants moved the district court to stay its June 29
order pending the appeal. 	Sisney v. Kaemingk, 4:15-cv-04069-LLP, Mot. to
Stay, ECF No. 175 (D.S.D.). 	The district court denied the motion to stay on
August 10, 2020. 	Sisney v. Kaemingk, 4:15-cv-04069-LLP, ECF No. 184
(D.S.D.). 	After the district court denied the stay, the Sisney defendants moved
the Eighth Circuit to stay the district court order pending appeal. 	Sisney v.
& 163-31. 	However, after a review, SDSP released those magazines to Mr. Bell
on December 20, 2019. 	Def. Ex. 30, Docket No. 163-30.
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Kaemingk, No. 20-02460, ECF No. 12 (8th Cir.). 	The Eighth Circuit denied the
motion on August 27, 2020. 	Sisney v. Kaemingk, No. 20-02460, ECF No. 15
(8th Cir.). 	As of the entry of this order, the Eighth Circuit appeal in Sisney is
fully briefed and pending oral argument. 	SDDOC’s revised policy on
pornography, including the alterations recommended in the district court’s
June 29, 2020, opinion, came into effect on November 4, 2020. 	See SDDOC
policy 1.3.C.8, Pornography (eff. Nov. 4, 2020).
Mr. Bell has not shown that the rejection of the September 2020 issue of
Lion’s Roar was rooted in animus toward him for pursuing the underlying
lawsuit. 	Instead, the record reflects that SDSP was simply applying a
department-wide policy—the validity of which hung in the balance pending the
motions to stay in the district court and Eighth Circuit—to Mr. Bell. 	Thus,
Mr. Bell has not shown that the defendants breached the settlement agreement
through retaliation or other unlawful adverse effect by confiscating those issues
of Lion’s Roar that depict nudity as defined in the old version of the SDDOC’s
pornography policy.
Next, Mr. Bell has not shown retaliation or other unlawful adverse effect
in alleged interference with the Buddhist group’s activities. 	In administrative
remedy requests dated June 29, 2020, and July 14, 2020, Mr. Bell complained
of missed Buddhist group services on June 23, 2020, and July 13, 2020. 	Ptf.
Ex. 10, Docket No. 160-1 at p. 45; Def. Exs. 38 & 40, Docket Nos. 163-38 &
163-40. 	Mr. Bell claimed the missed services amounted to a violation of his
First Amendment rights and a breach of the settlement agreement. 	Id. 	SDSP,
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in a remedy response signed by Warden Young, stated that both the June 23
and July 13 services did not proceed due to separate administrative
miscommunications, not retaliation against Mr. Bell or the Buddhist group.
Ptf. Ex. 10, Docket No. 160-1 at p. 46. 	See also Def. Exs. 39 & 41, Docket
Nos. 163-39 & 163-41.
Nothing in the record submitted by the parties shows that the missed
Buddhist group meetings were due to animus toward Mr. Bell for his pursuit of
the underlying lawsuit. 	Rather, the record shows these events were discrete
instances of miscommunication within SDSP. 	While these miscommunications
may have adversely affected Mr. Bell, the settlement agreement does not serve
to protect Mr. Bell from all adverse effects. 	Absent any evidence that any
adverse effects to Mr. Bell arose from his participation in the underlying
lawsuit, the defendants have not breached the settlement agreement by
interfering with the Buddhist group’s religious services.
Mr. Bell also alleges the defendants breached the settlement agreement
by changing the room where Buddhist group services are held. 	Docket No. 160
at pp. 7-8. 	Mr. Bell offers no evidence in support of his claim that this location
change was intended to punish him by disrupting the religious activities of the
Buddhist group. 	The defendants dispute Mr. Bell’s assertion, presenting
evidence that the Buddhist group has been allowed to use the same room since
July 2020. 	Mertens-Jones Aff., Docket No. 166 at p. 4, ¶ 10. 	Before July
2020, the Buddhist group was asked to change rooms in order to accommodate
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the needs of another religious group at SDSP that needed more space. Id.
at ¶ 11.
The defendants also submitted an administrative remedy request from
Mr. Bell dated August 24, 2020, wherein he complained the room the Buddhist
group uses remains empty on Tuesday nights, but the group was moved to
another location. 	Def. Ex. 44, Docket No. 163-44. 	In response, SDSP informed
Mr. Bell that no group is entitled to any particular room and groups are placed
in rooms according to facility needs. 	Def. Ex. 45, Docket No. 163-45.
Based on the record submitted by the parties, there is no evidence that
Mr. Bell has been retaliated against or suffered unlawful adverse effects from
SDSP’s changing the room where the Buddhist group holds its religious
services. 	The record reflects that the room change was in service of facility
demands, not arising from Mr. Bell’s participation in the underlying lawsuit.
Lastly, Mr. Bell asserts that the defendants breached their obligations
under the settlement agreement by changing or failing to deliver fresh fruit for
Buddhist religious holidays. 	Docket No. 160 at p. 8. 	The defendants have
submitted record evidence of one instance where the Buddhist group was
unintentionally not provided a fruit tray they had ordered. 	In an informal
resolution request dated December 9, 2019, Mr. Bell complained that, on
December 8, 2019, the Buddhist group did not receive a fruit platter they
planned to eat on December 8, 2019, in observance of Buddha’s
Enlightenment. 	Def. Ex. 42, Docket No. 163-42. 	Mr. Bell complained that the
group had paid $67.50 for the platter. 	Id. 	On December 19, 2019, SDSP
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personnel responded to Mr. Bell’s remedy request. 	Def. Ex. 43, Docket
No. 163-43. 	SDSP acknowledged that the Buddhist group did not receive the
fruit platter they had paid for and issued a refund for the purchase price. 	Id.
According to Tammy Mertens-Jones, Cultural Activities Program Manager at
SDSP, the non-delivery of the fruit platter was “totally inadvertent” and due to
kitchen staff forgetting to pick up the fruit from a local merchant. 	Mertens-
Jones Aff., Docket No. 166 at p. 6, ¶ 18. 	According to Ms. Mertens-Jones, this
was an isolated incident, and, except for the fruit platter, the Buddhist group
received the “holiday meal” for Buddha’s Enlightenment. 	Id.
Based on the record submitted by the parties, SDSP’s non-delivery of the
fruit platter was unintentional, and Mr. Bell has not shown that it was
motivated by or arose from his pursuit of the underlying lawsuit. 	Therefore,
the non-delivery of the fruit platter was not retaliation or unlawful adverse
effect as proscribed by the settlement agreement.
To the extent Mr. Bell is claiming a First Amendment violation based on
the SDDOC’s alleged interference with his religious activities, such a claim is
outside the scope of this motion to enforce the settlement agreement. 	If
Mr. Bell wishes to pursue a First Amendment claim based on these facts, he
must initiate a new case.
4. 	Civil Contempt Related to the Defendants’ Court-Ordered
Obligation To Secure from Certain Employees a Signed
Acknowledgement of Paragraph 3c
Next, Mr. Bell seeks enforcement of this court’s order to defendants
regarding paragraph 3c of the settlement agreement. 	Mr. Bell asserts that the
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defendants failed to satisfy their obligations under the court’s October 31,
2019, order, which directed them as follows:
ORDERED that defendants shall reprint paragraph 3c from the
settlement agreement and distribute to all prison employees who have
contact with Mr. Bell. 	Each such employee must sign an
acknowledgement that they have read and understood the provision as
regards Mr. Bell.
Docket No. 149 at p. 9.
The defendants do not claim they have technically complied with this
order, and the record shows they have not. 	Instead, the defendants claim they
have substantially complied with the order by distributing to every SDDOC
employee—not just those at SDSP who have contact with Mr. Bell—a
memorandum exhorting staff to comply with SDDOC’s Staff Code of Ethics
policy and not retaliate against inmates for pursuing lawsuits or complaints
against the department or state. 	See Def. Ex. 50, Docket No. 163-50. 	The
memo was from Defendant Warden Young and sent on February 21, 2020. 	Id.
The memo does not name Mr. Bell. 	Id. 	According to Warden Young’s affidavit,
each SDDOC employee was required to read the memo and electronically mark
it as read. 	See Young Aff., Docket No. 164 at p. 3, ¶ 10. 	The defendants do not
address why they did not remind SDDOC employees of their non-retaliation
policy until February 21, 2020, nearly four months after the court’s October
2019 order.
Paragraph 3c of the settlement agreement states:
Retaliation. The SDDOC agrees and acknowledges that, after the
dismissal of the present lawsuit, based on this Settlement
Agreement and Mutual Release, it will continue to adhere to its
long-standing practice or policy of not subjecting any inmate to
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retaliation as a result of his/her having filed a lawsuit against the
State. 	Plaintiff, therefore, will not be subject to retaliation, or any
other unlawful adverse effect, arising from or relating to his
participation in this lawsuit, including but not limited to
statements he made or positions he advocated in its prosecution.
Docket No. 140-1 at p. 2.
Warden Young’s memo, with language lifted verbatim or in substantial
part from paragraph 3c in bold type, states as follows:
The following memo is intended to serve as another reminder that
DOC expects from its staff unfailing honesty, respect for the dignity
and individuality of human beings and commitment to professional
service. 	All DOC staff members are expected to continue to
conduct themselves in a manner consistent with the Staff Code of
Ethics policy, and to maintain a work environment free from
discrimination. 	All staff members remain responsible for treating
fellow staff, offenders and the public with dignity and respect.
Staff shall, as in the past, not practice discriminatory, harassing or
offense [sic] behavior nor condone it in others.
As you know, the DOC has a long-standing practice and policy
of not subjecting any inmate to retaliation as a result of
his/her having filed a lawsuit, or complaint of any kind,
against the State. 	We will continue to adhere to said practice and
no inmate may be subject to retaliation, or other unlawful
adverse effect, arising from his/her participation in any
lawsuit or any complaint or grievance against the DOC or
the State.
Docket No. 163-50.
“One of the overarching goals of a court’s contempt power is to ensure
that litigants do not anoint themselves with the power to adjudge the validity of
orders to which they are subject.” 	Chi. Truck Drivers v. Bhd. Labor Leasing,
207 F.3d 500, 505 (8th Cir. 2000) (citing United States v. United Mine Workers,
330 U.S. 258, 290 n.56 (1947)). 	As the Supreme Court observed in United
Mine Workers, “what the Constitution now fittingly calls the ‘judicial power of
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the United States’ would be a mere mockery” without the power to punish
contempt of court. 	330 U.S. at 290 n.56.
In a civil consent case before a magistrate judge, the magistrate judge
may exercise the civil contempt authority of the district court. 	28 U.S.C.
§ 636(e)(4) (2018). 	“Civil contempt may be employed either to coerce the
defendant into compliance with a court order or to compensate the
complainant for losses sustained, or both.” 	Chi. Truck Drivers, 207 F.3d at
505 (citation omitted). 	A party seeking a civil contempt judgment bears the
initial burden of proving, by clear and convincing evidence, that the alleged
contemnors violated a court order. 	Jake’s, Ltd., Inc. v. City of Coates, 356 F.3d
896, 899-900 (8th Cir. 2004). 	“Court orders are to be complied with in letter
and spirit[.]” 	United States v. Dinwiddie, 885 F. Supp. 1299, 1304 n.3 (W.D.
Mo. 1995) (quoting McGuffin v. Springfield Hous. Auth., 662 F. Supp. 1546,
1547 (C.D. Ill. 1987)). 	Here, it is undisputed that the defendants have not
complied with the letter of the October 2019 order. 	Most pointedly, but among
other things, the defendants failed to comply with the court order when they
did not require staff to sign an acknowledgement that they understood
paragraph 3c as regards Mr. Bell.
Yet, substantial compliance with a court order may be a defense to civil
contempt. 	Ford Motor Co. v. B & H Supply, Inc., 646 F. Supp. 975, 1005
(D. Minn. 1986) (citing Gen. Signal Corp. v. Donallco, Inc., 787 F.2d 1376,
1379 (9th Cir. 1986)). 	See also United States v. Hefti, 688 F. Supp. 1367, 1370
(E.D. Mo. 1988); Fogie v. Thorn Ams., Inc., No. 3-94-359, 1997 U.S. Dist.
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LEXIS 23562, at *10 (D. Minn. Feb. 19, 1997). 	“If a violating party has taken
all reasonable steps to comply with the court order, technical or inadvertent
violations of the order will not support a finding of civil contempt.” 	Gen. Signal
Corp., 787 F.2d at 1379 (quotation omitted).
Here, the defendants have shown they have taken all reasonable steps to
comply with the court order. 	The February 21, 2020, memo effectively
paraphrases the language of paragraph 3c of the settlement agreement.
Requiring SDDOC employees to electronically mark the memo as “read” serves
substantially the same function as requiring them to sign an
acknowledgement. 	Sending the memo to all SDDOC employees accomplishes
the goal of notifying those employees who engage Mr. Bell of the department’s
non-retaliation policy. 	And the defendants have stated a valid penological
interest in Mr. Bell’s safety for keeping his name off the memo. 	As Warden
Young states in his affidavit, “SDSP has a penological interest in the safety and
security of every inmate. 	As such, efforts are made to limit documents
produced and dispersed within the institution that name or draw attention to
any specific inmate or group of inmates, as any document could potentially be
seen by inmates.” 	See Young Aff., Docket No. 164 at p. 4, ¶ 15. 	“Documents of
any kind which single out an inmate or group of inmates can make them a
target for violence or extortion from other inmates or inmate groups.” 	Id.
at ¶ 16.
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Based on the submissions of the parties, the court is satisfied that
defendants have substantially complied with the October 2019 order.
Therefore, Mr. Bell’s request for a finding of civil contempt is denied.
5. 	Ongoing Retaliation and Unlawful Adverse Effects in Violation
of the Settlement Agreement
Mr. Bell claims he has been subject to ongoing retaliation and unlawful
adverse effects arising from his pursuit of the underlying lawsuit in violation of
paragraph 3c of the settlement agreement. 	The language of paragraph 3c is
encompasses more behavior than the narrow legal definition of retaliation.
The SDDOC agrees and acknowledges that . . . it will continue to
adhere to its long-standing practice or policy of not subjecting any
inmate to retaliation as a result of his/her having filed a lawsuit
against the State. 	Plaintiff, therefore, will not be subject to
retaliation, or other unlawful adverse effect, arising from or relating
to his participation in this lawsuit, including but not limited to
statements he made or positions he advocated in its prosecution.
Docket No. 140-1 at p. 2.
Mr. Bell has alleged that the SDDOC has continued visiting retaliation
for and unlawful adverse effects related to his participation in the underlying
lawsuit in violation of the settlement agreement and despite this court’s
October 31, 2019 order. 	Specifically, Mr. Bell has alleged SDSP staff have
continued openly discussing moving him off B-floor and calling him such
names as “snitch,” “rat,” “cry baby,” and “crazy” to other prison staff and
inmates. 	Bell Aff., Docket No. 160-1 at p. 6, ¶¶ 13-14. 	Mr. Bell also claims
SDSP employees have shared with other inmates information about him and
his legal work. 	While many of Mr. Bell’s allegations of name-calling and
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discussions about moving him off B-floor lack specific factual content, he does
describe several specific events.
Mr. Bell submitted an affidavit from Anthony Reyes, another inmate at
SDSP, in which Mr. Reyes avers that he has heard staff, including Corporal
Boul, Unit Coordinator Maranowski, and Corporal Bell call Mr. Bell names like
“snitch,” “rat,” “Buddha rat,” and “lawyer rat.” 	Reyes Aff., Docket No. 160-1 at
p. 8, ¶ 3. 	Mr. Bell also submitted an administrative remedy request dated May
21, 2020, where he complained that SDDOC staff continue to retaliate against
him by threatening to move him to A-floor, causing him anxiety through
intimidation and harassment. 	Ptf. Ex. 3, Docket No. 160-1 at pp. 11-12.
Although Mr. Bell does not identify which SDDOC staff were discussing moving
him to A-floor, he alleges that he brought his concerns to Unit Manager
Hughes. 	Id., Docket No. 160-1 at p. 13. 	Mr. Bell further complained in a May
4, 2020, administrative remedy request that these discussions occurred almost
daily in the mornings and evenings. 	Id. at Docket No. 160-1 at p. 17.
In the May 4, 2020, grievance, Mr. Bell described several incidents of
alleged retaliation or unlawful adverse effect arising from the underlying
lawsuit. 	First, he stated that, on the morning of March 17, 2020, he was in the
utility room in Blue Section of B-floor changing mop water and getting cleaning
supplies when another inmate entered the utility room and Corporal Boul
stood in the doorway. 	Ptf. Ex. 3, Docket No. 160-1 at p. 18. 	The other inmate
asked Corporal Boul to shut and lock the utility room door with Mr. Bell and
himself inside for ten minutes. 	Id. 	According to Mr. Bell, it was obvious the
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other inmate wanted to assault him in the utility room. 	Id. 	As stated by
Mr. Bell, “[i]t took Corporal Boul about a minute or so to decide and verbally
state[,] ‘There would be too much blood.’ ” 	Id.
Mr. Bell described another instance on March 8, 2020, where
Correctional Officer Denning accused Mr. Bell of looking at her funny during
commissary. 	Id. at p. 19. 	According to Mr. Bell, Officer Denning then
repeatedly threatened to send Mr. Bell to A-floor because he looked at her
funny. 	Id. 	Mr. Bell asserted that Officer Denning has a grudge against him
because he files grievances about her allegedly harassing behavior. 	Id.
at p. 20.
In information resolution requests dated November 16, 2019, and
December 13, 2019, Mr. Bell complained that numerous prison employees,
including Officers Denning, Timmer, and Perret, discuss moving him off B-floor
on a nightly basis. 	Ptf. Ex. 5, Docket No. 160-1 at pp. 27, 30. 	Mr. Bell
asserted this behavior was intended to harass him for exercising his legal
rights. 	Id.
In December 2019, SDSP responded to an administrative remedy request
where Mr. Bell alleged he heard Officer Moisan state, “Something has to be
done about Bell.” 	Ptf. Ex. 7, Docket No. 160-1 at p. 38. 	The administrative
response stated that this information had been referred to the appropriate
authorities and that internal SDSP staff matters are not discussed with
inmates. 	Id.
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In his reply, Mr. Bell asserts Officer Denning, Corporal Boul, Unit
Coordinator Maranowski, and Officer Westenkircher are among those who
continue calling him names like “rat,” “snitch,” “lawyer rat,” and “Buddha rat.”
Docket No. 171 at p. 3. 	Mr. Bell also asserts Corporal Boul confronted
Mr. Reyes about the affidavit he signed in support of Mr. Bell’s request for
mandamus relief. 	Id.; Bell Reply Aff., Docket No. 172 at pp. 6, 8, ¶¶ 14, 21.
Mr. Bell further alleges that he has heard Unit Coordinator Maranowski, Officer
Westenkircher, Officer Denning, Corporal Boul, and Corporal Balsavage call
him such names as “rat,” “snitch,” and “crybaby.” 	Docket No. 171 at p. 4; Bell
Reply Aff., Docket No. 172 at p. 6, ¶ 15. 	Mr. Bell further alleges that, on
September 29, 2020, a mentally ill sex offender diagnosed with paranoid
schizophrenia was moved into his cell. 	Docket No. 171 at pp. 7, 24. 	Mr. Bell
asserts that another inmate threatened to kill Mr. Bell after he submitted
prison grievances and sent out legal mail. 	Id. at pp. 17-18. 	Mr. Bell claims he
later heard this inmate tell Officer Denning, “I did my part!” 	Id. 	According to
Mr. Bell, this inmate has been given preferential treatment by prison staff. 	Id.
Mr. Bell also claims he heard Officer Westenkircher state, “I hate him!”
with regard to Mr. Bell around 7:47 a.m. on September 20, 2020, while talking
about wanting to move Mr. Bell off B-floor. 	Docket No. 171 at p. 17. 	According
to Mr. Bell, Officer Westenkircher later stated Mr. Bell was “talking about his
goddamn case!” 	Id.; Bell Reply Aff., Docket No. 171 at p. 7, ¶ 18. 	At around
12:36 p.m. the same day, Mr. Bell claims Officer Westenkircher stated, “he’s a
rat,” about Mr. Bell to others on B-floor. 	Id.
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Mr. Bell further alleges that, on certain listed dates and times, SDSP staff
called him “rat” over the radio: September 14, 2020, around 12:38 p.m.;
September 18, 2020, around 1:51 p.m.; September 18, 2020, around 7:47
p.m.; September 20, 2020, around 8:48 a.m.; and September 21, 2020, around
3:14 p.m. 	Docket No. 171 at p. 20; Bell Reply Aff., Docket No. 172 at p. 3, ¶ 6.
Mr. Bell also asserts SDSP talked over the radio about relocating him on
September 9, 2020, around 6:45 p.m. 	Id.
Mr. Bell submitted the affidavit of Mark Stricherz, another inmate at
SDSP, along with his reply. 	Mr. Stricherz avers in his affidavit that he has
heard discussions by SDSP staff on B-floor, including Corporal Boul, Unit
Coordinator Maranowski, and Officer Denning, where they spread negative
rumors about Mr. Bell and repeatedly bring up the underlying lawsuit,
grievances, and legal work, and treat him poorly in front of other inmates. 	See
Stricherz Aff., Docket No. 173 at p. 3, ¶ 7. 	Mr. Stricherz also avers these SDSP
personnel do not like Mr. Bell because of his prison grievances and the
underlying lawsuit. 	Id.
Both Mr. Bell and Mr. Stricherz described an instance on October 3,
2020, when Unit Coordinator Maranowski shook down Mr. Bell’s cell and
allowed another inmate—the same person Mr. Bell claims asked Officer Boul to
lock them both in a utility closet—to stand in the doorway and discuss
information about Mr. Bell. 	Bell Reply Aff., Docket No. 172 at pp. 8–9, ¶ 21;
Stricherz Aff., Docket No. 173 at p. 2,¶¶. 4-6. 	According to Mr. Stricherz,
Mr. Bell told several inmates to get away from his cell and let Unit Coordinator
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Maranowski carry on with the shakedown, but Unit Coordinator Maranowski
told Mr. Bell to go back to work and not worry about what they were doing.
Stricherz Aff., Docket No. 173 at p. 2, ¶ 6.
Mr. Bell also submitted an affidavit from Joseph Smalls with his reply.
Mr. Smalls was Mr. Bell’s cellmate and, as of the affidavit’s writing, had been
for three months. 	Smalls Aff., Docket No. 174 at p. 1, ¶ 1. 	According to
Mr. Smalls, he witnessed multiple SDDOC employees treat Mr. Bell in a
retaliatory or vindictive manner as a result of his participation in the
underlying lawsuit, which Mr. Smalls avers is a common topic of conversation
within and between the SDSP prison and staff populations. 	Id. at pp. 1-2,
¶¶ 2-3.
Lastly, in his reply, Mr. Bell asserts Officer Denning disclosed
information contained within the legal journal she seized from Mr. Bell’s cell on
August 2, 2020, to various people at SDSP. 	Docket No. 171 at p. 12. 	Mr. Bell
asserts he was told by inmate Tad Blackburn that “people know about your
journal” and that the name-calling, as described elsewhere herein, worsened
after Officer Denning seized the journal from Mr. Bell’s cell. 	Id.
The defendants, for their part, broadly deny all assertions by Mr. Bell
that he has been retaliated against as of result of the underlying lawsuit. 	See
Docket No. 163 at p. 5. 	The defendants argue Mr. Bell cannot state a prima
facie claim for retaliation. 	Id. 	But the question is not whether Mr. Bell can
state a claim for retaliation. 	The question is whether the defendants have
breached the settlement agreement by retaliating or visiting other unlawful
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adverse effects on Mr. Bell because of his participation in the underlying
lawsuit. 	Even if the court were to entertain Mr. Bell’s motion as a request for
mandamus relief, the relief requested is the enforcement of the parties’
contract, not some other remedy tied to a freestanding retaliation claim. 	The
defendants’ preoccupation with a narrow legal definition of retaliation is
confused. 	But there is some merit to the defendants’ position. 	The settlement
agreement prohibits only those unlawful adverse effects that arise from
Mr. Bell’s participation in the lawsuit; therefore, even if SDDOC has visited
some adverse effect upon Mr. Bell, they have violated their contractual
obligations only if such adverse effect arose from Mr. Bell’s pursuit of his
legal remedies.
Yet, the defendants have offered scant evidence to dispute Mr. Bell’s
version of events. 	They specifically dispute only three of Mr. Bell’s claims.
First, the defendants argue that Mr. Bell’s claim about SCO Moisan’s
“something has to be done about Bell” statement must be false because SCO
Moisan did not work on November 4, 2019, the day when Mr. Bell says the
statement was made. 	Dreiske Aff., Docket No. 165 at p. 3, ¶ 8; Def. Ex. 14,
Docket No. 163-14. 	The record evidence the defendants cite is an
administrative remedy response, dated nearly 10 months after the date when
Mr. Bell claims SCO Moisan made the comment, stating that SCO Moisan did
not work on November 4, 2019. 	Def. Ex. 14, Docket No. 163-14. 	Mr. Bell, in
his reply, doubles down on his claim, suggesting that whatever records
defendants have that indicate SCO Moisan was absent that day could be
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incorrect because prison staff sometimes swap shifts and that the prison
security cameras would show that SCO Moisan, along with Officer Stevens and
Captain Pitchford, was present on November 4, 2019. 	Bell Reply Aff., Docket
No. 172 at p. 5, ¶ 11.
Second, the defendants resist Mr. Bell’s claims that SDSP staff have
repeatedly threatened to move him off B-floor. 	SDSP has, the defendants
argue, repeatedly assured Mr. Bell that there has been no talk or discussions
about relocating him to another housing unit. 	Docket No. 163 at p. 10. 	But
the documents the defendants cite are old. 	The defendants have offered no
evidence to show that, since this court entered its October 31, 2019, order
enforcing the settlement agreement, SDSP and SDDOC staff have assured
Mr. Bell that he will not be moved. 	Where the allegations in Mr. Bell’s current
motion concern SDDOC employees’ conduct since October 31, 2019, Unit
Manager Hanson’s October 9, 2019, affidavit has little bearing. 	And even if the
defendants did provide relevant evidence that Mr. Bell has been assured by
certain SDDOC staff that he will not be moved, the defendants have offered no
evidence to refute Mr. Bell’s specific allegations that other employees, including
Officers Denning, Westenkircher, Timmer, and Perret, have repeatedly and
openly discussed moving him off B-floor. 	Ptf. Exs. 5 & 6, Docket No. 160-1 at
pp. 27, 30; Bell Reply Aff., Docket No. 172 at p. 7, ¶ 18.
Lastly, the defendants dispute that SDDOC staff, including Officer Boul
and Unit Coordinator Maranowski, called Mr. Bell names and discussed
moving him off B-floor on June 26, 2020. 	Dreiske Aff., Docket No. 165 at p. 3,
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¶ 5. 	In response to administrative remedy requests Mr. Bell submitted (Def.
Exs. 1 & 3, Docket Nos. 163-1 & 163-3), SDDOC staff talked with Officer Boul
and Unit Coordinator Maranowski, who denied that any such communication
took place (Def. Exs. 2 & 4, Docket Nos. 163-2 & 163-4).
In arguing that there has been no “adverse action” on the part of SDDOC
simply because the department has not tried to relocate Mr. Bell, the
defendants have clearly missed the meaning of the court’s October 2019 order:
[T]he settlement agreement is not limited to a narrow legal
definition of “retaliation.” Instead, defendants promised under the
terms of the settlement agreement to refrain from any “unlawful
adverse effect” visited upon Mr. Bell by prison officials as a result
of his filing the instant lawsuit. See Docket No. 140-1 at p.2, ¶3c.
This is far broader than the narrow legal concept of “retaliation.”
Because defendants do not deny that this behavior is taking place,
the court accepts as true Mr. Bell’s allegations, supported by his
affidavit. See Docket No. 147. 	Those allegations support an
inference of acts by defendants and their employees that are
designed to harass, worry, and endanger Mr. Bell’s safety among
his fellow prisoners. This may very well constitute “unlawful
adverse effects.”
Docket No. 149 at p. 8 (emphasis added).
“Unlawful adverse effects” may include acts by SDDOC staff that harass
or worry Mr. Bell, so long as those acts are motivated by Mr. Bell’s participation
in the underlying lawsuit. 	The defendants’ contention that “verbal threats do
not constitute adverse action sufficient to support a claim of retaliation”
(Docket No. 163 at p. 10) is irrelevant to the claims Mr. Bell has raised. 	As
explained exhaustively herein, the issue is not whether Mr. Bell has stated a
standalone claim for retaliation; it is whether the SDDOC has breached its
contract with Mr. Bell. 	In the context of the parties’ contract, the defendants
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have offered no reason why verbal threats may not constitute retaliation or
unlawful adverse effect.
Just as the defendants do not address what constitutes “unlawful
adverse effect,” neither does Mr. Bell. 	Borrowing from Title VII employment
litigation, where the similar terms “unlawful adverse action” and “adverse
employment action” are frequently litigated, an adverse effect is one that
produces a material change in in an employee’s working situation. 	Higgins v.
Gonzales, 481 F.3d 578, 584 (8th Cir. 2007) (noting that “[m]inor changes in
duties or working conditions, even unpalatable or unwelcome ones, which
cause no materially significant disadvantage” are not material changes). 	In the
context of a harassment lawsuit under Title VII, a plaintiff must show that the
systemic bad treatment is severe and pervasive enough to have affected a term
or condition of employment. 	Id. at 588 (finding a pattern of “harsh and
unprofessional” treatment, including transfer to a new office with an unwilling
supervisor and formal complaints against the employee, did not rise to adverse
employment action because there was no material employment disadvantage).
The sporadic name-calling and bad-natured teasing alleged by Mr. Bell, even if
true, do not amount to an unlawful adverse action. 	Defendants have not
disciplined him because of his participation in the lawsuit—they have not, for
instance, placed him in solitary confinement or transferred him to a less
favorable floor or correctional facility. 	In short, Mr. Bell has not shown adverse
action by defendants.
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Further, Mr. Bell’s allegations, taken as true, do not show that the
defendants have violated their contractual obligation to not retaliate against or
visit other unlawful adverse effects upon him arising from his participation in
the underlying lawsuit. 	Especially where the Supreme Court has warned
against “unnecessarily perpetuating federal courts’ involvement in prison
administration affairs” (Shaw v. Murphy, 532 U.S. 223, 224 (2001)), Mr. Bell’s
claims do not show that the defendants have breached the contract.
Further, the actions alleged by Mr. Bell are, in relation to the underlying
lawsuit, too remote in time to suggest they were motivated by or arose from it.
Mr. Bell filed his complaint in the underlying lawsuit on April 5, 2016. 	This
case has been closed since February 5, 2019, when this court entered
judgment on the parties’ joint motion to dismiss. 	Mr. Bell revived this case in
October 2019 with his motion to enforce the settlement agreement. 	Now,
Mr. Bell has alleged he was, in late 2019 and throughout 2020, still being
retaliated against and unlawfully adversely affected due to the underlying
lawsuit. 	Just as this court held in its June 27, 2018, opinion on the
defendants’ motion for summary judgment, “the temporal relationship is not
strong” between the alleged retaliation and unlawful adverse effects and
Mr. Bell’s constitutionally protected activity. 	Bell v. Young, No. 16-04046-VLD,
2018 WL 3148385, at *38 (D.S.D. June 27, 2018) (citing Haynes v.
Stephenson, 588 F.3d 1152, 1156-57 (8th Cir. 2009)). 	Although this is not a
freestanding retaliation issue, there must still be some nexus in time to show
that the defendants’ alleged actions were motivated by Mr. Bell’s participation
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in the underlying lawsuit. 	If Mr. Bell has not shown that SDDOC’s actions
were motivated by his participation in the underlying lawsuit, then he has not
shown that defendants have breached the settlement agreement. 	Here,
Mr. Bell’s participation in the underlying lawsuit ended when the case was
dismissed on February 5, 2019, at least 10 months before the adverse effects
alleged by Mr. Bell. 	This large amount of time erodes the inference that
SDDOC’s alleged conduct was motivated by Mr. Bell’s participation in the
underlying lawsuit.
It bears repeating that the question before the court is whether the
defendants have breached the settlement agreement. 	Therefore, the court
considers not whether Mr. Bell has been the subject of any retaliation, but only
whether Mr. Bell has been the subject of retaliation or unlawful adverse effects
arising from his participation in the underlying lawsuit, which ended on
February 5, 2019. 	This is because the settlement agreement protects Mr. Bell
only from those retaliatory acts of unlawful adverse effects arising from his
participation in the underlying lawsuit. 	Considering the large amount of time
between the conclusion of his case and the alleged actions of SDDOC, Mr. Bell
has not shown that any adverse effects he has suffered arise from his
participation in the underlying lawsuit. 	Therefore, Mr. Bell has not shown that
the defendants breached the settlement agreement.
To the extent Mr. Bell is claiming constitutional violations based on new
instances of alleged retaliation by SDDOC employees, such claims are outside
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the scope of this motion. 	If Mr. Bell wishes to pursue new claims based on
these facts, he must initiate a new case.
CONCLUSION
Based on the foregoing facts, law and analysis, it is hereby ORDERED
that Mr. Bell’s motion for mandamus relief [Docket No. 160] is denied in its
entirety. 	If Mr. Bell wishes to pursue new claims, he must file a new complaint
and pay a new filing fee.
DATED December 4, 2020
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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