Hughbanks v. Fluke et al

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
KEVIN LEE HUGHBANKS,
Plaintiff,
vs.
BRENT FLUKE, Warden, Mike Durfee
State Prison, in his individual and
official capacity; REBECCA
SCHIEFFER, Associate Warden of
Operations and Administrative Remedy
Coordinator, Mike Durfee State Prison,
in her individual and official capacity;
ALEJANDRO REYES, Associate Warden
of Programs and Americans with
Disabilities Act Coordinator, Mike
Durfee State Prison, in his individual
and official capacity; LAINE
SCHRYVERS, Former Ludeman and
West Crawford Unit Manager, Mike
Durfee State Prison, in their individual
capacity; TAMMY DOYLE, Barracks
Unit Manager, Mike Durfee State
Prison, in her individual and official
capacity; SECRETARY SOUTH DAKOTA
DEPARTMENT OF HEALTH, Cabinet
Secretary, in their individual and
official capacity; DIRECTOR
CORRECTIONAL HEALTH SERVICES,
Director, All SD DOC Locations, in their
individual and official capacity; CHS
JANE DOE, Nurse, Mike Durfee State
Prison, in her individual and official
capacity; MARY CARPENTER, Medical
Director, All SD DOC locations, in her
individual and official capacity;
STEPHANIE HAMILTON, Nurse, Mike
Durfee State Prison, in her individual
and official capacity; MIKE LEIDHOLT,
4:21-CV-04167-KES
ORDER DENYING SUMMIT FOOD
SERVICE AND KIM HALVERSON’S
MOTION FOR PROTECTIVE ORDER
AND TO STAY DISCOVERY AND
GRANTING THE STATE
DEFENDANTS’ MOTION TO STAY
DISCOVERY
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Former Secretary of Corrections, All SD
DOC Locations, in his individual
capacity; TIM REISCH, Former Interim
Secretary of Corrections, All SD DOC
Locations, in his individual capacity;
CHS JANE DOE, Nurse, South Dakota
State Penitentiary, in her individual and
official capacity; SAM BADURE, Unit
Manager and SDSP Prison Rape
Elimination Act Coordinator, South
Dakota State Penitentiary, in his
individual and official capacity; CODY
HANSON, Former Case Manager and
Current Unit Manager, South Dakota
State Penitentiary, in his individual and
official capacity; MELISSA MATURAN,
SDSP Administrative Remedy
Coordinator, South Dakota State
Penitentiary, in her individual and
official capacity; TAMMY TOP, Former
Physician’s Assistant, South Dakota
State Penitentiary, in her individual and
official capacity; JESSICA SCHRUER,
South Dakota State Penitentiary, in her
individual and official capacity; “X”
SALOUM, Doctor of Medicine, Employed
though Department of Health, South
Dakota State Penitentiary, in his/her
individual and official capacity; DARIN
YOUNG, Former Chief Warden and
Director of Operations, South Dakota
State Penitentiary, in his individual
capacity; JENNIFER DREISKE, Former
Deputy Warden, South Dakota State
Penitentiary, in her individual capacity;
CHARISSA WAREMBOURG, Mailroom
Officer, Mike Durfee State Prison, in her
individual and official capacity; CHUCK
GILCHRIST, Sex Offender Management
Program Counselor/Therapist, Mike
Durfee State Prison, in his individual
and official capacity, a/k/a Charles
Gilchrist; BRENNA CARLSON, Sex
Offender Management Program
Director, All SD DOC Facilities, in her
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individual and official capacity; MARK
STOEBNER, Former Sex Offender
Management Program
Counselor/Therapist, Mike Durfee State
Prison, in his individual and official
capacity; JAMES HENRY, Corporal and
Supervisor of Laundry, Mike Durfee
State Prison, in his individual and
official capacity; GLOBAL TEL LINK
CORPORATION, All South Dakota
Department of Corrections Facilities, in
its individual and official capacity;
SUMMIT FOOD SERVICE, LLC; Mike
Durfee State Prison, in its individual
and official capacity; UNKNOWN
CORRECTIONAL HEALTH SERVICES
EMPLOYEES, Unknown Positions, Mike
Durfee State Prison, in their individual
and official capacities; SOMP JOHN
DOE, Unknown Contractor for Sex
Offender Management Program, Mike
Durfee State Prison, in his individual
and official capacity; TIFFANY VOIGT,
Unit Coordinator, Mike Durfee State
Prison, in her individual and official
capacity; DOUG CLARK, Deputy
Secretary of Corrections, Former
Interim Secretary of Corrections and
Former Executive Director of South
Dakota Board of Pardons and Paroles,
in his individual and official capacity;
DAN SULLIVAN, Warden of South
Dakota State Penitentiary, in his official
capacity; KELLIE WASKO, Cabinet
Secretary South Dakota Department of
Corrections, All SD DOC Locations, in
their official capacity; GORDON
SWANSON, Parole Board Member, All
SD DOC Facilities, in his individual and
official capacity; KENNETH ALBERS,
Parole Board Member and Former
Sheriff, All SD DOC Facilities, in his
individual and official capacity; MARK
SMITH, Parole Board Member, All SD
DOC Facilities, in his individual and
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official capacity; MYRON RAU, Parole
Board Member, All SD DOC Facilities,
in his individual and official capacity;
PAIGE WILBUR BOCK, Parole Board
Member, All SD DOC Facilities, in her
individual and official capacity; DAVE
NELSON, Parole Board Member and
Former Prosecutor, All SD DOC
Facilities, in his individual and official
capacity; KEVIN KRULL, Parole Board
Member, All SD DOC Facilities, in his
individual and official capacity; ANNE
HAJEK, Parole Board Member, All SD
DOC Facilities, in her individual and
official capacity; ED LIGTENBERG,
Parole Board Member and Former
Executive Director of South Dakota
Board of Pardons and Paroles, All SD
DOC Facilities, in his individual and
official capacity; GREGG GASS, Parole
Board Member, All SD DOC Facilities,
in his individual and official capacity;
JODY JESSEN, Correctional Officer,
Mike Durfee State Prison, in his/her
individual and official capacity; ED
LOEWE, Lieutenant of Special
Investigative Unit, Mike Durfee State
Prison, in his individual and official
capacity; KIM HALVERSON, Summit
Food Service, LLC, Director at Mike
Durfee State Prison, in their individual
and official capacity; and JARROD “X”,
Former Summit Food Service, LLC,
Director at Mike Durfee State Prison, in
his individual capacity,
Defendants.
Plaintiff, Kevin Lee Hughbanks, filed a pro se lawsuit under 42 U.S.C.
§ 1983. Dockets 5, 20. Hughbanks alleges that his conditions of confinement at
Mike Durfee State Prison (MDSP) violate his constitutional rights. Hughbanks
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has named as defendants current and former employees of the South Dakota
Department of Corrections and Department of Health (State defendants),
Summit Food Service and its current and former employees, and Global Tel
Link Corporation. Docket 20 at 1-10. Summit Food Service and Kim Halverson
move for a protective order pursuant to Federal Rule of Civil Procedure 26
providing that they do not need to respond to written discovery requests from
Hughbanks dated May 4, 2022. Docket 54. Summit Food Service and
Halverson also move to stay discovery until the court has ruled on dispositive
motions they plan to file. Id. Hughbanks has not responded to these
defendants’ motion.
The State defendants move to stay discovery pending resolution of their
forthcoming motion for summary judgment on qualified immunity. Docket 77.
Hughbanks has not responded to the State defendants’ motion.
For the reasons set forth below, the court denies Summit Food Service
and Halverson’s motion and grants the State defendants’ motion.
I. 	Summit Food Service and Halverson’s Motion for Protective Order
and to Stay Discovery
Summit Food Service contracts with the Department of Corrections to
provide food service to inmates at MDSP. Docket 55 at 1. In his complaint,
Hughbanks alleges that Summit Food Service has violated his Eighth
Amendment right to be free from cruel and unusual punishment by
contributing to unsanitary conditions in the dietary building and serving food
that does not meet the daily nutritional guidance recommended by the
Department of Agriculture. Docket 5 at 25-26, 28-29, 33-35, 65-68.
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Hughbanks’s claim against Summit Food Service survived screening under 28
U.S.C. § 1915A. Docket 11 at 28-30, 40. In his amended complaint,
Hughbanks added individual and official capacity claims against Kim
Halverson, Summit Food Service Director at MDSP. Docket 20 at 9-10. Summit
Food Service and Halverson answered the amended complaint. Docket 49.
Summit Food Service and Halverson move for a protective order providing that
they do not need to respond to written discovery requests from Hughbanks and
move to stay discovery until the court has ruled on dispositive motions they
plan to file. Docket 54.
Summit Food Service and Halverson argue that the court should grant
their motion for two reasons. First, these defendants contend that Hughbanks
should not be permitted to conduct “discovery on a claim that is facially
defective and fails to allege facts warranting protection under the Eighth
Amendment.” Docket 55 at 7. Second, these defendants argue that “[a]
protective order and stay of discovery is appropriate, if not necessary, based on
the qualified immunity defenses that prison officials have raised in response to
the same claims or counts[.]” Docket 55 at 4.
Hughbanks’s Eighth Amendment claim against Summit Food Service
survived screening under 28 U.S.C. § 1915A, and Summit Food Service
answered the amended complaint instead of filing a motion to dismiss for
failure to state a claim upon which relief can be granted pursuant to Federal
Rule of Civil Procedure 12(b)(6). See Docket 49. Summit Food Service, in
essence, requests that the court reconsider its screening order. The court is not
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so inclined. Summit Food Service’s argument that Hughbanks’s claim lacks
merit is not a reason to grant a protective order or to stay discovery.
But because Halverson was not a defendant when the court screened the
complaint under 28 U.S.C. § 1915A, the court will consider whether the
amended complaint states a claim against Halverson upon which relief may be
granted. In the amended complaint, Hughbanks brings individual and official
capacity claims against Halverson for unsanitary conditions in the dietary
building and inadequate nutrition that violate his Eighth Amendment right to
be free from cruel and unusual punishment. Docket 20 at 9-10, 29-25, 38-41,
73-77. Because the complaint included the same conditions of confinement
claims against Summit Food Service, which the court determined survive
§ 1915A screening (Docket 11 at 28-30), the only issue is whether Hughbanks
has pleaded that Halverson’s own individual actions have violated the
Constitution. “Because vicarious liability is inapplicable 	. . . to § 1983 suits, a
plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009). To state a claim upon which relief can be
granted, Hughbanks’s individual capacity claims against Halverson must allege
that she either participated in the unconstitutional conduct or caused the
conduct to occur through a failure to train or supervise an offending officer.
Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010).
The amended complaint alleges that Halverson participated in the
conduct giving rise to the allegedly unsanitary conditions and inadequate
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nutrition. Docket 20 at 31, 35, 40, 73, 75, 76. At this stage of the proceedings,
the court must assume as true all facts well pleaded in the amended
complaint. Estate of Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995).
Further, pro se and civil rights complaints must be liberally construed.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation omitted)
Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004) (citation omitted).
Because the amended complaint states a claim upon relief can be granted
against Halverson, the court disagrees that Hughbanks seeks to conduct
discovery on a facially invalid claim.
Summit Food Service and Halverson did not raise qualified immunity as
an affirmative defense in their answer. See Docket 49 ¶¶ 6-14. In their motion
for protective order and motion to stay discovery, they do not contend that
qualified immunity is a defense to Hughbanks’s claims against them. See
Docket 55. While the State defendants have asserted qualified immunity as a
defense, Docket 77, Summit Food Service and Halverson cite no authority to
support their argument that they are entitled to a protective order and stay of
discovery because other defendants have raised the defense in response to
Hughbanks’s Eighth Amendment claims arising out of alleged unsanitary
conditions in the dietary building and nutritionally inadequate meals. Further,
a ruling by the court that Hughbanks’s Eighth Amendment claims against the
State defendants are barred by the doctrine of qualified immunity will not
dispose of Hughbanks’s claims against Summit Food Service and Halverson.
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While Summit Food Service and Halverson correctly note that qualified
immunity protects prison officials from litigation and is intended to protect
government officials from the burdens of broad discovery, Summit Food Service
and Halverson are not prison or government officials and have not asserted
that they are entitled to qualified immunity. See Docket 55. For these reasons,
their reliance on decisions from this court staying discovery until the question
of qualified immunity is resolved is misplaced.
Summit Food Service and Halverson note that this court stayed discovery
in Hughbanks’s previous lawsuit to allow for ruling on dispositive motions. In
Hughbanks v. Dooley, No. 4:10-CV-04064-KES, 2011 WL 3502484, at *1, 2011
U.S. Dist. LEXIS 89189, at *2-3 (D.S.D. Aug. 10, 2011), the court granted the
defendants’ request for a stay of discovery pending resolution of the
defendants’ motion for summary judgment. But these defendants had raised
qualified immunity as an affirmative defense and in fact had a pending motion
for summary judgment asserting a qualified immunity defense. Id. In this case,
Summit Food Service and Halverson have not raised qualified immunity as a
defense. Dockets 49, 55. Similarly, in Gard v. Kaemingk, No. 4:13-CV-04062-
LLP, 2014 WL 4092776, at *4, 2014 U.S. Dist. LEXIS 114113, at *9-10 (D.S.D.
Aug. 18, 2014), because all of the defendants had asserted that Gard’s claim
were subject to a qualified immunity defense, the court granted the defendants’
motion to stay discovery. 	In Smith v. Woodward, No. 4:10-CV-04053-KES,
2010 WL 3937139, at *1, 2010 U.S. Dist. LEXIS 106437, at *3-4 (D.S.D. Oct. 4,
2010), the defendants, all of whom had raised qualified immunity as a defense
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to Smith’s claims, moved to stay discovery until the issue of qualified immunity
was resolved. Although Smith opposed a stay of discovery, the court granted
the defendants’ motion to stay. Id.
For all of these reasons, Summit Food Service and Halverson’s motion for
protective order and to stay discovery (Docket 54) is denied. Pursuant to
Federal Rule of Civil Procedure 34, Summit Food Service shall respond to the
requests for production of documents, dated May 4, 2022 (Docket 53-1, Ex. A),
within 30 days of the filing of this order. Pursuant to Federal Rule of Civil
Procedure 33, Kim Halverson shall respond to the interrogatories, dated May 4,
2022 (Docket 53-1, Ex. B), within 30 days of the filing of this order.
II. 	State Defendants’ Motion to Stay Discovery
The State defendants move to stay discovery pending resolution of a
motion for summary judgment on qualified immunity, which is forthcoming.
Docket 77. “Qualified immunity is an immunity from suit, not simply from
liability[,]” and protects governmental officials from discovery. Janis v.
Biesheuvel, 428 F.3d 795, 800 (8th Cir. 2005) (citing Mitchell v. Forsyth, 472
U.S. 511, 526 (1985)). “Unless the plaintiff’s allegations state a claim of
violation of clearly established law, a defendant pleading qualified immunity is
entitled to dismissal before the commencement of discovery.” Mitchell, 472 U.S.
at 526 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Because the
State defendants have alleged that they are entitled to qualified immunity, see
Docket 50 at 11, their motion to stay discovery (Docket 77) pending resolution
of the qualified immunity issue is granted.
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Thus, it is ORDERED:
1. That Summit Food Service and Halverson’s motion for protective order
and to stay discovery (Docket 54) is denied. Summit Food Service
must respond to the requests for production of documents, dated May
4, 2022 (Docket 53-1, Ex. A), within 30 days of the filing of this order.
Kim Halverson shall respond to the interrogatories, dated May 4, 2022
(Docket 53-1, Ex. B), within 30 days of the filing of this order.
2. That the State defendants’ motion to stay discovery (Docket 77) is
granted, and the State defendants must file their motion for summary
judgment within 60 days of the filing of this order.
Dated February 10, 2023.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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