Running Bird v. Mertens-Jones et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
HAROLD RUNNING BIRD,
Plaintiff,
vs.
TAMMY MERTENS-JONES, in her
individual and official capacity as
Administrative Remedy coordinator;
DANIEL SULLIVAN, in his individual
and official capacity as Warden of the
South Dakota State Penitentiary;
DOUGLAS CLARK, in his individual and
official capacity as Secretary of the
South Dakota Department of
Corrections,
Defendants.
4:21-CV-04197-KES
1915A SCREENING
Plaintiff, Harold Running Bird, an inmate at the South Dakota State
Penitentiary, filed a civil rights lawsuit under 42 U.S.C. § 1983. Docket 1.
Running Bird timely paid his filing fee on November 23, 2021. This court will
now screen Running Bird’s amended complaint under 28 U.S.C. § 1915A.
I. 	1915A Screening
A. 	Factual Background
The facts alleged in Running Bird’s complaint are: that the South Dakota
State Penitentiary fails to allow Native American religious ceremonies to be held
in the gym or recreation area. Docket 4 ¶¶ 11, 13. Instead, he alleges that
family pow wows are held in a space too small for all families to join and for
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participants to dance. Id. ¶ 12. He also alleges that he attempted to address
this through the grievance process, but his grievances were rejected as unclear.
Id. ¶¶ 11-15. He claims that he also submitted a grievance requesting that
certain dangerous groups be kept apart for ceremonies such as sweats. Id.
¶ 16. He claims that he explained that these events often result in gang
members and their victims being placed together. Id. ¶ 18. He also claims that
this grievance was rejected for failure to state a clear request. Id. ¶¶ 17, 19.
Running Bird sues all defendants in their individual and official
capacities. Id. at 1. He brings claims for violation of the Religious Land Use and
Institutionalized Persons Act (RLUIPA), his First Amendment right to free
exercise of religion, his Fourteenth Amendment rights to due process and equal
protection, and the American Indian Religious Freedom Act (AIRFA). Id. ¶¶ 20-
37. He seeks declaratory relief, injunctive relief, costs and attorney’s fees, and
any other relief this court deems just and equitable. Id. at 6-7.
B. 	Legal Background
The court must assume as true all facts well pleaded in the complaint.
Estate of Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995). Civil rights
complaints must be liberally construed. Bediako v. Stein Mart, Inc., 354 F.3d
835, 839 (8th Cir. 2004). Civil rights complaints cannot be merely conclusory.
Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993); Parker v. Porter, 221 F. App’x
481, 482 (8th Cir. 2007).
A complaint “does not need detailed factual allegations . . . [but] requires
more than labels and conclusions, and a formulaic recitation of the elements of
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a cause of action will not do[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal citations omitted). If it does not contain these bare essentials,
dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir.
1985). Twombly requires that a complaint’s “[f]actual allegations must be
enough to raise a right to relief above the speculative level . . . on the
assumption that all of the allegations in the complaint are true[.]” Twombly,
550 U.S. at 555 (internal citation omitted); see also Abdullah v. Minnesota, 261
F. App’x 926, 927 (8th Cir. 2008) (noting that a “complaint must contain either
direct or inferential allegations respecting all material elements necessary to
sustain recovery under some viable legal theory”). Under 28 U.S.C. § 1915A,
the court must screen prisoner complaints and dismiss them if they “(1) [are]
frivolous, malicious, or fail[] to state a claim upon which relief may be granted;
or (2) seek[] monetary relief from a defendant who is immune from such relief.”
28 U.S.C. § 1915A(b).
C. 	Legal Analysis
1. 	RLUIPA Claims
Running Bird brings claims against all defendants for violation of the
Religious Land Use and Institutionalized Persons Act. Docket 4 ¶¶ 20-24.
RLUIPA protects “any exercise of religion, whether or not compelled by, or
central to, a system of religious belief.” Holt v. Hobbs, 574 U.S. 352, 358 (2015)
(quoting 42 U.S.C. § 2000cc-5(7)(A)). “[A] prisoner’s request for an
accommodation must be sincerely based on a religious belief and not some
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other motivation,” and the prison policy must substantially burden the
prisoner’s exercise of religion. Id. at 360-61.
To establish a prima facie case under RLUIPA, a plaintiff must show
“that the challenged government practice ‘substantially burdens [his] exercise
of religion.’ ” Native Am. Council of Tribes v. Weber, 750 F.3d 742, 749 (8th Cir.
2014) (alteration in original) (quoting 42 U.S.C. § 2000cc-2(b)). If the plaintiff
succeeds in making a prima facie showing, the defendant bears the burden to
prove that the challenged regulation is the least restrictive means of furthering
a compelling governmental interest. Id. (citing § 2000cc-2(b)). Here, Running
Bird makes a sufficient prima facie showing. The ceremonies he describes are
religious exercises, and he alleges that his ability to participate in these
religious exercises has been substantially burdened. Further, he alleges that all
defendants have participated in imposing this burden. Docket 4 ¶ 23. Thus, his
RLUIPA claims against all defendants survive § 1915A screening.
2. 	First Amendment Free Exercise Claims
Running Bird brings claims against all defendants for violation of his
First Amendment right to free exercise of his religion. Id. ¶¶ 25-32. In order to
state a First Amendment claim, Running Bird must allege facts showing that
prison officials have substantially burdened the free exercise of his religion.
Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008). Substantially
burdening one’s free exercise of religion means that the regulation
must significantly inhibit or constrain conduct or expression that
manifests 	some 	central 	tenet 	of 	a 	person’s 	individual 	religious
beliefs; 	must 	meaningfully 	curtail 	a 	person’s 	ability 	to 	express
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adherence to his or her faith; or must deny a person reasonable
opportunities to engage in those activities that are fundamental to a
[person’s] religion.
Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988 (8th Cir. 2004) (cleaned up).
Running Bird has alleged facts sufficient to state a claim for violation of
his First Amendment free exercise rights. He alleges that his ability to engage
in activities fundamental to his religion has been constrained by defendants’
activities. He also alleges that all defendants have participated in constraining
his religious practices. Docket 4 ¶ 28. Thus, his First Amendment free exercise
claims against all defendants survive § 1915A screening.
3. 	Fourteenth Amendment Claims
Running Bird brings claims against all defendants for violation of his
Fourteenth Amendment rights. Id. ¶¶ 33-35. Specifically, he alleges that
defendants have deprived him of liberty and property interests without
procedural and substantive due process and that defendants have
unconstitutionally discriminated against him in violation of his right to equal
protection of the laws. Id. ¶ 35.
a. 	Procedural Due Process Claims
Running Bird does not specify which actions on the part of the
defendants have violated his procedural due process rights. See id. ¶¶ 33-35.
Construing his complaint liberally, this court assumes that his claims stem
from the South Dakota State Penitentiary’s rejection of his grievances. “While a
violation of a state-created liberty interest can amount to a violation of the
Constitution, not every violation of state law or state-mandated procedures is a
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violation of the Constitution.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.
1993) (per curiam) (holding that a refusal to process grievances alone did not
state a constitutional deprivation). In Buckley, the Eighth Circuit Court of
Appeals explained that a prison grievance procedure “is a procedural right
only, it does not confer any substantive right upon the inmates. Hence, it does
not give rise to a protected liberty interest requiring the procedural protections
envisioned by the [F]ourteenth [A]mendment.” Id. (quotation omitted); see also
King v. Houston, 556 F. App’x 561, 563 (8th Cir. 2014) (citing Buckley for the
proposition that “prison officials’ failure to process or investigate grievances,
without more, is not actionable under § 1983”). Here, Running Bird alleges that
the way grievances are processed or remedied violates his rights, but this alone
does not arise to the level of a constitutional violation. Thus, Running Bird’s
procedural due process claims are dismissed without prejudice under 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
b. 	Substantive Due Process Claims
In order for Running Bird to establish a substantive due process
violation, he must allege “(1) that the official violated one or more fundamental
constitutional rights, and (2) that the conduct of the executive official was
shocking to the contemporary conscience.” Flowers v. City of Minneapolis, 478
F.3d 869, 873 (8th Cir. 2007) (internal quotation omitted). “[F]undamental
rights are those ‘deeply rooted in this Nation’s history and tradition, and
implicit in the concept of ordered liberty, such that neither liberty nor justice
would exist if they were sacrificed.’ ” Id. (quoting Terrell v. Larson, 396 F.3d
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975, 978 n.1 (8th Cir. 2005) (en banc)). “[T]he state action must be ‘truly
egregious and extraordinary’ to shock the conscience[.]” Livers v. Schenck, 700
F.3d 340, 351 (8th Cir. 2012) (quoting Winslow v. Smith, 696 F.3d 716, 735-36
(8th Cir. 2012)). “Whether conduct shocks the conscience is a question of law.”
Folkerts v. City of Waverly, 707 F.3d 975, 980 (8th Cir. 2013) (citing Terrell,
396 F.3d at 981).
Because a wide variety of official conduct may cause injury, a court
must first determine the level of culpability the § 1983 plaintiff must
prove to establish that the defendant’s conduct may be conscience
shocking. Mere negligence is never sufficient. Proof of intent to harm
is 	usually 	required, 	but 	in 	some 	cases, 	proof 	of 	deliberate
indifference, an intermediate level of culpability, will satisfy this
substantive 	due 	process 	threshold. 	The 	deliberate 	indifference
standard is sensibly employed only when actual deliberation is
practical. By contrast, the intent-to-harm standard most clearly
applies in rapidly evolving, fluid, and dangerous situations which
preclude the luxury of calm and reflective deliberation.
Id. at 980-81 (internal quotations and citations omitted) (quoting Terrell, 396
F.3d at 978).
Running Bird has alleged sufficient facts to state a claim for violation of
his substantive due process rights. The incidents described by Running Bird
are not “rapidly evolving, fluid, and dangerous situations” but instead those
where “actual deliberation is practical.” See id. at 981 (quoting Terrell, 396 F.3d
at 978). As such, the deliberate indifference standard applies to Running Bird’s
substantive due process claims. Running Bird alleges that all defendants were
aware of and deliberately indifferent to his religious needs. Thus, his
substantive due process claims against all defendants survive § 1915A
screening.
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c. 	Equal Protection Claims
The equal protection clause of the Fourteenth Amendment requires the
government to "treat similarly situated people alike," a protection that applies
to prisoners. Murphy, 372 F.3d at 984 (quoting Rouse v. Benton, 193 F.3d 936,
942 (8th Cir. 1999)). To establish a prima facie claim of an equal protection
violation, Running Bird must show (1) that he is treated differently than a
similarly situated class of inmates, (2) that the different treatment burdens a
fundamental right, and (3) that there is no rational relation to any legitimate
penal interest. Id. (citing Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998)
(en banc)). The Eighth Circuit has explained for a prisoner to prevail on an
equal protection claim, he “must show that he is treated differently from
similarly situated inmates and that the different treatment is based upon either
a suspect classification or a fundamental right.” Patel, 515 F.3d at 815-16
(citations and internal quotation omitted).
Running Bird fails to state a claim for violation of his right to equal
protection. Running Bird must show that he is treated differently than a
similarly situated class of inmates. He makes no claims regarding the South
Dakota State Penitentiary’s actions towards inmates of other religions and thus
fails to show that he is being treated differently than inmates of other religions.
Running Bird’s equal protection claims are dismissed without prejudice under
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
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4. 	AIRFA Claims
Running Bird brings claims against all defendants for violating AIRFA.
Docket 4 ¶¶ 36-37. Under AIRFA, the United States is to “protect and preserve
for American Indians their inherent right of freedom to believe, express, and
exercise the traditional religions of the American Indian, . . . including but not
limited to . . . the freedom to worship through ceremonial and traditional rites.”
42 U.S.C. § 1996. “AIRFA does not create a cause of action or any judicially
enforceable individual rights.” Native Am. Council of Tribes v. Weber, 2010 WL
1999352, at *4 n.2 (D.S.D. May 18, 2010) (citing Lyng v. Nw. Indian Cemetery
Protective Ass’n, 485 U.S. 439, 455 (1988)). Thus, Running Bird’s AIRFA claim
is dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(l).
Thus, it is ORDERED:
1. 	That Running Bird’s RLUIPA claims against Tammy Mertens-Jones,
Daniel Sullivan, and Douglas Clark in their individual and official
capacities survive § 1915A screening.
2. 	That Running Bird’s First Amendment Free Exercise claims against
Tammy Mertens-Jones, Daniel Sullivan, and Douglas Clark in their
individual and official capacities survive § 1915A screening.
3. 	That 	Running 	Bird’s 	Fourteenth 	Amendment 	substantive 	due
process claims against Tammy Mertens-Jones, Daniel Sullivan, and
Douglas Clark in their individual and official capacities survive
§ 1915A screening.
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4. 	That all of Running Bird’s remaining claims against all defendants
are dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(l).
5. 	Defendants Mertens-Jones, Sullivan, and Clark will serve and file
an answer or responsive pleading to the complaint on or before 21
days following the date of service or 60 days if the defendants fall
under Fed. R. Civ. P. 12(a)(2) or (3).
6. 	Running Bird will keep the court informed of his current address at
all 	times. 	All 	parties 	are 	bound 	by 	the 	Federal 	Rules 	of 	Civil
Procedure and by the court’s Local Rules while this case is pending.
Dated January 27, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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