Christians v. Young et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MARK CHRISTIANS,
Plaintiff,
vs.
DARRIN YOUNG, in his individual capacity;
DAN SULLIVAN, in his official capacity;
TROY PONTO, Deputy Warden SDSP,
individual and official capacity; JESSICA
COOK, Associate Warden SDSP/Jameson,
individual and official capacity; BRENT
FLUKE, Warden MDSP, individual and official
capacity; REBECCA SCHIEFFER, Associate
Warden MDSP, individual and official capacity;
ALEX REYES, Associate Warden MDSP,
individual and official capacity; CODY
HANSON, Unit Manager Jameson, individual
and official capacity; SETH HUGHES, Unit
Manager Jameson, individual and official
capacity; NANCY CHRISTENSEN, Unit
Manager MDSP, individual and official
capacity; DEREK EKEREN, Unit Coordinator
Jameson, individual and official capacity; DEB
EILERS, Unit Coordinator MDSP, individual
and official capacity; LAUME STRATMAN,
Unit Coordinator MDSP, individual and official
capacity; JULIE STEVENS, Case Manager
MDSP, individual and official capacity;
JARRED ANDERSON, KELLY BUCHHOLZ,
CBM/Summit Food Services Worker MDSP,
individual and official capacity; JOHN
TMEWEILER, Summit District Manager,
individual and official capacity; KEVIN
TRIERWEILER, Site Manager Jameson,
individual and official capacity; PAMELA
THOMAS, Executive Chef, Summit
Corrections, individual and official capacity;
UNNAMED SUMMIT LICENSED
DIETITIAN(S), individual and official capacity;
DIETARY ASSISTANTS, individual and
4:20-CV-04083-LLP
ORDER GRANTING IN PART AND
DENYING IN PART THE DOC
DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT, GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S
SECOND MOTION TO AMEND, AND
RULING ON MISCELLANEOUS
MOTIONS
1
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official capacity; DIRECTORS OF
OPERATIONS, individual and official capacity;
DISTRICT MANAGERS, individual and
official capacity; FOOD SERVICE
DIRECTORS, individual and official capacity;
ASSISTANT FOOD SERVICE DIRECTORS,
individual and official capacity; FOOD
SERVICE WORKERS, individual and official
capacity; JUSTIN BARTHEL, Director of
Dietary Summit, individual and official capacity;
CRAIG MOUSEL, Property Officer, SDSP,
individual and official capacity; MIKE
LEIDHOLT, South Dakota Secretary of
Corrections, individual and official capacity;
KELLIE WASKO, official capacity,
PECHOUS, Unit Coordinator, individual and
official capacity; GENIE BIRCH, Program
Manager, individual and official capacity;
GREASMAN, Correctional Officer, individual
and official capacity; DAWN ALUMBAUGH,
Correctional Officer, individual and official
capacity; BARNETCHE, Correctional Officer,
individual and official capacity; MARJAMA,
Correctional Officer, individual and official
capacity; WINTERS, Correctional Officer,
individual and official capacity; PADILLA,
Correctional Officer, individual and official
capacity; MULLDSTS, Correctional Officer,
individual and official capacity; HULSCHER,
Correctional Officer, individual and official
capacity; DRISKIE, Former Deputy Warden,
individual capacity; BECKER, Lieutenant,
individual and official capacity; HETTIG,
Lieutenant, individual and official capacity;
PERRET, Lieutenant, individual and official
capacity; BETH, Summit Supervisor, individual
and official capacity, SUMMIT FOOD
SERVICE, individual and official capacity,
Defendants.
Plaintiff, Mark Christians, is an inmate at the South Dakota State Penitentiary ("SDSP").
He filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Doc. 1. Pending before the Court is
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a motion for summary judgment filed by defendants Darin Young, Doug dark,1 Troy Ponto,
Jessica Cook, Brent Fluke, Rebecca Schieffer, Alex Reyes, Cody Hanson, Seth Hughes, Nancy
Christensen, Derek Ekeren,2 Deb Eilers, Laurie Stratman, Julie Stevens, Craig Mousel, Dr. Mary
Carpenter, Dr. Shamin Sultana, Dr. Karissa Zimmer, Amber Gitchel, Rachel Depree, and Mike
Leidholt3 (the "DOC Defendants"). Doc. 98. Christians opposes this motion. Doc. 117. Also
pending before the Court is Christians' motion to file a second amended complaint, which
defendants oppose. Docs. 79, 87, 92. Christians and the DOC Defendants have filed motions
regarding discovery. Docs. 76, 80, 81, 89,127. Christians has also filed an objection to this
Court's order dismissing Lieutenant Maddox from the lawsuit, a motion for appointment of
counsel, and a motion for the appointment of an expert. Docs. 75, 77, 110. For the following
reasons, this Court grants in part and denies in part the DOC Defendants' motion for summary
judgment.
I. The DOC Defendants' Motion for Summary Judgment
A. Factual Background
Christians brings claims against Doug Clark, the former SDSP Warden, in his official capacity.
Under Federal Rule of Civil Procedure 25(d), "[a]n action does not abate when a public officer
who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the
action is pending. The officer's successor is automatically substituted as a party." The current
SDSP Warden is Dan Sullivan, who is automatically substituted for dark on the official capacity
claims. Because Christians only sues dark in his official capacity, dark is dismissed from this
lawsuit.
2 Defendants' motion does not name Derek Ekeren as a party moving for summary judgment.
Doc. 98 at 1. This Court presumes that defendants intended to file a motion for summary
judgment on behalf of all DOC defendants. The motion also names Adam Maddox, who was
dismissed from this lawsuit on September 27, 2021. See id.; Doc.69.
3 Christians brings claims against Mike Leidholt, the former South Dakota Secretary of
Corrections, in his individual and official capacity. The current Secretary of Corrections is Kellie
Wasko, who is automatically substituted for Leidholt on the official capacity claims.
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The Court recites the relevant facts in the light most favorable to Christians because the
DOC Defendants move for summary judgment. Where facts relevant to the remaining claims are
disputed, both parties' averments are included.
1. Food Quality and Calorie Intake
Christians brings an Eighth Amendment conditions of confinement claim against the
DOC Defendants, alleging that he lost over 90 pounds from March 2017 to August 13, 2018,
because of inadequate nutrition while incarcerated in the SD DOC prison system. Doc. 26 ^ 36.
The DOC retained "a private, independent consultant to perform an independent review of [their]
prison food service program" in 2017. Doc. 104 ^ 13 (alteration in original) (quoting Doc. 99-78
at 3). Barbara Wakeen of Correctional Nutrition Consultants, Ltd., was chosen to perform the
review. Id. ^16. Wakeen reviewed the menus at the Mike Durfee State Prison ("MDSP") and
noted that MDSP Menus were the same as SDSP menus except for a difference in sourcing for
bread. Id. ^ 17, 19. Christians disputes this finding, arguing that because the Summit defendants
informed him in a discovery response that no nutritional analyses exist, Wakeen could not
evaluate calorie or nutritional values for menus. Doc. 120 ^ 17; see also Doc. 118 at 35
("Summit Defendants state that they are not in the possession of any materials relating to a
'nutrient analysis[.]' ").
The DOC Defendants argue that Cteistians has failed to comply with the Local Rules in his
Response to Defendants' Statement of Undisputed Material Facts. Doc. 128 at 10-11. Local Rule
56.1 .B requires a party opposing a motion for summary judgment to respond to a statement of
undisputed material facts "with a separately numbered response and appropriate citations to the
record." D.S.D. Civ. LR 56.1(B). The DOC Defendants argue that Christians has failed to make
appropriate citations to the record. Doc. 128 at 10-11. Christians' response does fail to include
citations to entries in the record by number, but it does cite to these entries. See, e.g.. Doc. 120 ^
20 (citing to affidavits submitted by other inmates). Thus, although Christians' citations are not
as clear as they could be, he is not in violation of Local Rule 56.1(B).
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The executive summary of that report, which appears to be drafted by DOC officials,5
noted that "South Dakota menus are high in sodium content and must be reduced" but concluded
that "[t]he food service program and food quality is overall good." See Doc. 104 ^ 20 (quoting
Doc. 99-78 at 4). The executive summary also states that food integrity existed within the DOC
and that "the [DOC] overall provides a quality, nutritious low-cost meal to inmates." Id. (quoting
Doc. 99-78 AT #). Christians disagrees with this assessment, calling the food "unpalatable" and
alleging that portions of fruit and meat are below USDA guidelines. Doc.120 ^13, 20.
A second review of the DOC food service program was conducted in 2019. See Doc. 104
^ 21. The 2019 Site Visit Report does not indicate who conducted the evaluation, and Christians
contends that it was not independent but instead conducted by the DOC Director of Operations.
See Doc. 99-79; Doc. 120 ^ 21. The DOC Defendants allege that the 2019 evaluation concluded
that "most or all of the SDDOC facilities are NCCHC [National Commission on Correctional
Health Care] accredited and NCCHC Standards reference serving a nutritionally adequate diet
for that main population." Doc. 104 TJ 22 (alteration in original) (quoting Doc. 99-79 at 7). They
further allege that the SDDOC diet "incorporates the American Heart Association diet and
lifestyle recommendations and the USDA Dietary Guidelines." Id. (quoting Doc. 99-79 at 7).
This appears to be a mischaracterization of the 2019 evaluation. See Doc. 99-79 at 7-8.
Although this language does appear in the 2019 evaluation, it is taken from a paragraph
analyzing medical and specialty diets within SDDOC facilities. See id. The paragraph notes how
the SDDOC and Summit combined the diabetic, heart healthy, and high fiber diets into one diet
and how the Bland diet encompasses 12 different dietary restrictions, including intolerances,
5 The executive summary explains that an independent consultant was hired to review "our
prison food service program." Doc. 99-78 at 3 (emphasis added).
5
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allergies, and food preferences. Id. at 7. The 2019 evaluation then explains the NCCHC
standards referenced above by the DOC Defendants. Id. at 7-8. The 2019 evaluation further notes
that "[tjhe main population menus meet some of these criteria. If menus were aligned further
with some of these nationally recognized standards, recommendations and guidelines, perhaps
the number and types of medical diets could be simplified, thus simplifying the diet operations
for food service and medical." Id. at 8. It also notes that this would result in "positive cost
savings impact for food service and inmate health care while optimizing inmate health care
needs." Id.
In context, the 2019 evaluation is explaining that the SDDOC may be able to provide
fewer medical diets and streamline food service operations if the main population menus better
matched the NCCHC standards. Id. at 7-8. The 2019 evaluation summarized the "many diets and
diet combinations" as "costly in terms of labor, food, and all involved disciplines, and not
consistent with NCCHC Standards or nationally recognized practices for healthy outcomes." Id.
at 8. The 2019 evaluation also notes the lack of fresh fruit, vegetables, and salads, concluding
that "fresh fmit can be of a security concern and a cost impact as well but should be a workable
outcome with all disciplines collaborating." Id.
Christians alleges in his complaint that his diet while at MDSP and SDSP was and is
approximately 1750 calories per day and that the recommended calorie total for a man of his
height, weight, age, and activity level is approximately 3000 calories per day. Doc. 26 ^ 40. He
alleges that this discrepancy caused his weight loss. See id. He also alleges that he documented
his inadequate calorie intake through multiple grievances that he filed and through five months
of detailed food journal entries. Doc. 120 ^ 12. The DOC Defendants note that Wakeen's 2017
evaluation stated that the average daily calorie count at MDSP was 2,760, which was 65 calories
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fewer than the SDSP main population menu. Doc. 104 ^ 25 (citing Doc. 99-78 at 7). That
evaluation also stated that the recommended calorie amount for "the adult reference male" was
2,757 calories. Id. (quoting Doc. 99-78 at 7).
At a visit to MDSP Health Services on January 4, 2018, Christians stated that he "eats
more now than he did previously." Id. ^ 27 (quoting Doc. 99-5 at 1). At that visit, Christians
claimed that his weight loss began when he was transferred to MDSP. See Doc. 99-5 at 1. He
also claimed that he ate his regular meal tray and additional commissary items. Doc. 104 ^ 27.
Approximately two months later, he told Health Services that he had been buying and eating
$100 to $400 worth ofcommissary food a month in addition to eating his regular meals. Id. ^ 28.
On April 17, 2018, Christians told Health Services that he continued to lose weight despite
eating about 4,000 calories a day. Id. ^ 29. Christians was diagnosed with celiac disease, and he
was placed on a gluten-free diet around October 24, 2018. Id. ^ 76-77. He told Nursing Staff on
February 22, 2019, that he "purchases commissary in excess" and estimated his daily calorie
intake to be greater than 5,000. Id. ^ 30 (quoting Doc. 99-21 at 1). Christians told Dr. Steve
Gutnik, the gastroenterologist who diagnosed him with celiac disease, that he was "eating over
4,000 calories a day" at a visit on July 26, 2019. Id. ^ 31 (quoting Doc. 99-70 at 1). According to
Christians, these calorie estimates were based on his belief at the time that he was receiving
nearly 3,000 calories a day through his meals. Doc. 120 ^ 29. He claims that he has since learned
that he was receiving 1,750 calories a day at that time. Id.
Christians has submitted food journals tracking his calorie intake during January 2020
and April 2021. Doc. 114 at 6-23. He claims that he used the USDA's Nutrative Value of Food
Guide to calculate the calorie totals of his meals. Doc. 1 19 ^ 10-12. He alleges that he was
served 1,750 calories a day at MDSP and about 2,000 calories a day at SDSP and that he was
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only served 1,225 calories on December 30, 2021. Id. From January 1, 2020, to January 11,
2020, Christians averaged 1,979.18 calories a day, according to his journal. See Doc. 114 at 6-16.
From April 23, 2021, to April 29, 2021, Christians averaged 2,014.71 calories a day, according
to his journal. See id at 17-23. Christians also included one journal from December 30, 2021,
when he received 1,717 calories, but he claims that without the cake or cookie served, he
received only 1,225 calories. Id. at 24.
According to Christians, a 6'2" man weighing 248 pounds with "a very intensely active
lifestyle" would require 4,476 calories a day under the Mifflin-St. Jeor equation. Doc. 119 ^ 14
(citing Ingrassia v. Schafer, 2013 WL 5913740, at *3 (E.D. Mo. Nov. 1, 2013)). Christians has
submitted a calorie needs chart from the USDA Dietary Guidelines for Americans, 2020-2025,
which states that a moderately active male between 36 and 45 years old6 requires 2,600 calories a
day, while an active male of the same age range requires 2,800 calories a day. Doc. 74-1 at 39.
2. Weight Loss
Christians alleges that he lost weight at an unhealthy rate from March 2017 to August
2018, while the DOC Defendants contend that his weight loss was healthy. See Doc. 104 ^ 34.
Christians alleges that he lost nearly 90 pounds in 17 months, including 16 pounds from
September 6, 2017, to October 4, 2017, a rate of four pounds per week. Doc. 119 ^ 15-16. He
alleges that he also lost 30 pounds from April 19, 2017, to July 12, 2017, a rate of nearly three
pounds per week. Id. ^ 17. These weights are supported by medical documentation submitted by
Christians. Doc. 73-1 at 1. The DOC Defendants' statements regarding Christians' weight loss
and health draw largely from the affidavit of Dr. Mary Carpenter, the Medical Director for
Correctional Health Care and a defendant in this lawsuit. See Doc. 103 ^ 2. At his intake physical
6 According to his medical records, Christians is currently 43 years old. See Doc. 99-1 at 1.
8
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on October 1, 2013, Christians weighed 217 pounds. Id. ^ 54. According to Dr. Carpenter, losing
one to two pounds per week is safe. Doc. 104 ^ 34 (citing Doc. 103 ^ 119). Thus, by this
measure, Christians could have safely lost over 100 pounds between March 8,2017,and August
13,2018.Id. ^35 (citing Doc. 103 1120). Christians does not dispute this number, but he claims
that he lost an unsafe amount of weight during certain periods between March 8, 2017, and
August 13, 2018, such as when he lost 16 pounds in four weeks or 30 pounds in ten weeks. See
Doc. 120^35.
Christians weighed 307 pounds on April 4, 2017, at which point he expressed concern
over his weight gain to Health Services at SDSP and indicated that he wanted to continue
checking his weight. Doc. 104 139 (citing Doc. 99-1 at 1). He weighed 284 pounds on June 14,
2017. Doc. 73-1 at 1. Christians weighed 260 pounds inNovember 2017 and on January 4, 2018.
Doc. 104 ^ 40. On March 9, 2018, he weighed 255 pounds, and on April 17, 2018, he weighed
244 pounds. Id. ^ 41-42. Despite the weight loss, he was said to have good muscle tone and
good strength. Id. He weighed 221 pounds on August 13, 2018. Doc. 73-1 at 1. His medical
records from January 7, 2019, state that his "recent weights have been stable." Doc. 104 ^ 43
(quoting Doc. 99-71 at 2). On April 4, 2019, he weighed 222 pounds. Id. ^ 44. Between then and
November 2, 2020, he weighed 227,247,238,235,239, 238, and 242 pounds. Id. ^ 45, 48-51,
53-54. The DOC Defendants state that Christians was not in any immediate danger to his health
as a result of this weight loss. Id. ^ 55. Christians disputes this statement, arguing that his
deficient calorie intake and weight loss show that he was in danger. Doc. 120 ^ 55.
Christians saw Dr. Gutnik on July 19, 2018, to determine if there was an underlying
medical condition causing his weight loss. Doc. 104 ^ 59-60. At that visit, Christians told Dr.
Gutnik that he "eats a lot of food to make up for the weight loss but does not seem to make any
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difference." Id. ^61 (quoting Doc. 99-62 at 1). Dr. Gutnik described Christians' weight loss as
"gradual but progressive." Id. (quoting Doc. 99-62 at 1). Dr. Gutnik's report stated that he was
concerned about celiac disease, pancreatic insufficiency, or inflammatory bowel disease, so he
recommended that Christians undergo further testing. Id. ^ 63. Christians underwent an EGD and
colonoscopy on September 12, 2018. See id. at 64. Dr. Gutnik could not "exclude gluten
sensitive enteropathy" from the test results. Id. ^ 66 (quoting Doc. 99-65 at 1). A record from
Christians' Health Services visit on October 24, 2018, indicates that he had "[r]ecently had a
colonoscopy suggesting celiac with negative CT enterography." Doc. 99-17 at 2. At this point,
Christians had an order for a gluten-free diet but had not yet started that diet, and the medical
plan was to begin a gluten-free diet. Id. at 2, 4
Christians saw Dr. Gutnik for a follow-up on April 25, 2019, and Dr. Gutnik described
Christians' circumstances as "complex." Doc. 104 ^ 68 (quoting Doc. 99-66 at 3). Dr. Gutnik
stated that he was "[n]ot sure why [Christians] lost so much weight." Id. (quoting Doc. 99-66 at
1). Dr. Gutnik noted that Christians' biopsy "suggested the possibility ofceliac disease although
[his] tissue transglutaminase and levels were normal." Doc. 99-66 at 1. Dr. Gutnik also noted
that this combination "is quite rare but not impossible." Id. at 3. Dr. Gutnik "could not explain
the situation" and "had a hard time explaining things[.]" Id. at 1. He further stated that he was
"bothered" by Christians' case and that "something is not right." Id. at 3. At a July 26, 2019,
examination. Dr. Gutnik stated that his presumption was that Christians' weight loss was caused
by celiac disease, but that they would conduct another biopsy given that Christians had been
following his gluten-free diet closely. Doc. 99-70 at 1. Following the biopsy. Dr. Gutnik stated
that Christians had "mildly increased inflammation in his small bowel" that suggested that
"[Christians] is not taking his gluten free diet perfectly." Doc. 99-71 at 1. Christians notes that
10
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Dr. Gutnik was under the impression that Christians had been eating 3,000 or more calories a day
when examining him. See Doc. 120 ^ 68.
Dr. Gutnik wrote a letter to Christians on January 19, 2022, after Christians informed him
that he had been eating fewer calories during the time he was diagnosed with celiac disease than
he had previously believed. See Doc. 118 at 26-27. In this letter, Dr. Gutnik explained to
Christians that "[i]n regard to whether you have gluten disease or not, I can say with all honesty I
do not know with certainty." Id. at 26. Dr. Gutnik wrote that some signs, such as tissue
transglutaminase levels, did not suggest celiac disease, while other signs, such as biopsies and
HLA genetic testing, did suggest celiac disease. Id. Christians also informed Dr. Gutnik that he
had started eating gluten again, and Dr. Gutnik replied that Christians would need more biopsies
to investigate the possibility ofceliac disease. See id. at 27. Dr. Gutnik explained that if
Christians had recently gained weight on a gluten-rich diet, he likely did not have gluten disease.
Id.
The DOC Defendants contend that Christians' weight loss was also caused in part by his
decision to stop taking his mental health medications. Doc. 104 ^ 78. Christians told Health
Services that he felt his weight gain was caused by his mental health medications on April 4,
2017. Id. ^ 79 (citing Doc. 99-1 at 1). According to Dr. Carpenter, anxiety medication often
causes weight gain, and weight gain is a possible side effect of many anti-depressants. Id. (citing
Doc. 103 If 5). Christians then quit taking his mental health medication around June 23, 2017.Id.
^ 80. Defendants argue that Christians' weight loss was caused by the combination of his
untreated celiac disease and his no longer taking mental health medication that was contributing
to his prior weight gain. Id. ^ 82. The DOC Defendants also argue that stress and anxiety may
have played a role in Christians' weight loss. Id. <ff 83. Although medical records show that
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Christians told Health Services that he had a history of anxiety in the past, Christians insists that
he did not report anxiety and that this is a mistake made by Dr. Sultana. Doc. 99-33 at 3; Doc.
120 If 83; see Doc. 118 at 12-13.
3. Loss Of Muscle and Strength
Christians alleges that he lost muscle and strength as a result of his calorie deficit. Doc.
26 ^ 43, 53. The DOC Defendants note that in a Health Services visit on January 7, 2019,
Christians complained that he used to be able to bench press7 400 pounds but now could only
bench press 250 pounds. Doc. 104 ^ 84 (citing Doc. 99-74 at 2). They note that Christians was
described as having good muscle tone and strength at that appointment and at an earlier Health
Services visit on April 17, 2018. Id. ^ 85-86. They also note that some left-side weakness
suffered by Christians was caused by muscle atrophy after a neck injury. Id. ^ 87-88. Christians
argues that his loss of 150 pounds of strength is a significant drop and that the descriptions of
him as having good muscle tone and strength are relative to the person examining him. Doc.120
^ 84-85. He argues that his left-side weakness is a separate issue from his global loss of
strength. Id. ^ 87.
4. Diabetes and Insulin Resistance
Christians alleges that losing weight quickly has put him at risk of diabetes and insulin
resistance, as does his high-carbohydrate diet. Doc. 26 ^ 37, 41. On July 19, 2018, Christians
denied that he had cardiac disease or diabetes when seeing Dr. Gutnik. Doc. 104 ^ 96 (citing
Doc. 99-62 at 1). Tests performed on or about April 25, 2019, showed no signs of diabetes, and
Dr. Gutnik confirmed this at a September 5, 2019, visit. Id. ^ 97-98. Christians "denied any
The medical record refers to "binge press" rather than "bench press." Doc. 99-74 at 2. The
Court believes that this is an error in the medical record.
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recent changes to health" at a Health Services visit on September 2, 2020, and his lab results
showed no signs of diabetes at that time. Id. ^ 100 (quoting Doc. 99-52 at 2). Christians states
that "[djiabetes and insulin resistance are a real threat with the current diet." Doc. 120 ^ 95. He
claims that his excessive perspiration and urination are precursors to diabetes. Id. ^ 99. He also
points to his constant thirst as a symptom of diabetes or prediabetes. Id. ^166.
5. High Blood Pressure
Christians claims that losing weight quickly has increased his risk of heart disease,
stroke, and high blood pressure. Doc. 26 ^ 37. The DOC Defendants note that Christians has no
history of high blood pressure in his medical records and that his blood pressure has improved
since his weight loss. Doc. 104 ^ 104-105. They note that his blood pressure was 149/94 on
April 10, 2017, and was later 133/79 on January 4, 2018. Id. ^ 106. Since then, his blood
pressure has remained consistent. Id. ^ 107, They also note that Christians "denied cardiac
disease" in a visit with Dr. Gutnik on July 19, 2018. Id. ^ 108 (quoting Doc. 99-62 at 1).
Christians does not dispute these facts regarding his blood pressure but argues that losing weight
quickly increases his risk of stroke. Doc.120 "^ 104, 108.
6. Thyroid Function
Christians also claims that losing weight quickly can depress thyroid function. Doc. 26 ^
37. The DOC Defendants argue that Christians may have had hypothyroidism prior to his
incarceration on or about September 25, 2013. Doc. 104 ^ 110. Christians was diagnosed with
hypothyroidism in October 2013 and placed on medication to treat it. Id. ^ 111 (citing Doc. 99-
77 at 1). Christians then told Health Services that he had quit his thyroid medication and was
feeling good at an appointment on October 6, 2017. Id. ^ 112 (citing Doc. 99-3 at 1). His TSK
and T4 levels were within normal limits at an appointment on October 21, 2019, at which point it
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was determined that his thyroid appointments would be discontinued. Id. ^ 113 (citing Doc. 99-
33 at 2). Christians does not dispute any facts regarding his thyroid function. See Doc. 120 ^
109-114.
7. Fainting Spells and Dizziness
Christians alleges that he has had fainting spells and dizzy spells caused by his weight
loss. Doc. 26 THI 43, 52. The DOC Defendants allege that he first complained of fainting spells at
a Health Services visit on January 4, 2018, although Christians claims that he visited Health
Services for this issue several times. Doc. 104 ^ 1 16 (citing Doc. 99-5 at 2); Doc. 120 ^ 116. At
this visit, Christians reported dizziness severe enough to almost cause fainting upon standing or
changing positions. Doc. 104 ^ 116 (citing Doc. 99-5 at 2). Health Services conducted orthostatic
blood pressure readings, which were later described as adequate. Id. ^120 (citing Doc. 99-74 at
1). Health Services also noted that Christians had significant earwax buildup, which could have
caused dizziness, although Christians argues that one incident ofearwax buildup would not cause
years ofdizziness. Id. ^ 121 (citing Doc. 99-5 at 4); Doc. 120 ^ 121. On January 2, 2019,
Christians told Health Services that his dizziness issues had recently subsided, but he was still
concerned at times when changing positions. Doc. 104 ^ 122 (citing Doc. 99-18 at 3). Five days
later, he saw Health Services again with complaints of dizzy spells over the past year. Id. ^124
(citing Doc. 99-74 at 1). At this visit, Christians reported that he had not fallen as a result of his
dizziness, but he claims that he fell and broke his leg because ofdizziness in August 2020.Id.
(citing Doc. 99-74 at 1); Doc. 120 Tf 124. The DOC Defendants note that this fall occurred on
July 12, 2020. Doc. 128 at 24 (citing Doc. 99-49 at 1-2).
Christians saw Health Services again on July 15,2020,at which point it was noted that he
was on Clonidine, which can cause dizziness. Doc. 104 ^ 125-126. Christians' medical records
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from this visit indicated that Clonidine was "probably contributing to his orthostatic
hypotension." Id. ^ 126 (quoting Doc. 99-50 at 4). Christians claims that he experienced
dizziness prior to starting Clonidine, and the DOC Defendants do not provide a clear date as to
when Christians started Clonidine. Doc. 120 Tf 126; see Doc. 104 ^ 125-126.
8. Fatigue and Insomnia
Christians alleges that his inadequate diet has caused fatigue and insomnia. See Doc. 26 ^
53. The DOC Defendants attribute Christians' fatigue to his various psychiatric medications.
Doc. 104 ^ 127. They note that anxiety medications or antidepressants can cause fatigue. Id. ^
128 (citing Doc. 103 ^ 146). At his intake physical on October 1, 2013, Christians acknowledged
that he took Zyprexa, Remeron, and Depakote for psychiatric issues. Id. ^127 (citing Doc. 99-76
at 1). He was later prescribed Clomdine, Fluoxetine, and Trazodone. Id. ^ 129. The DOC
Defendants state that "[t]he well-known side effects of such medications often also include
weakness, fatigue and feelings oftiredness." Id. (citing Doc. 103 ^ 147). On February 22, 2019,
Christians was encouraged to discuss his fatigue symptoms with Mental Health. Id. ^130 (citing
Doc. 99-21 at 3). At two visits with Health Services in April, Christians was further encouraged
to follow up with Mental Health and told that "some of his symptoms were related to mental
health or side effects of his medications." Id. ^ 131-132 (cleaned up) (quoting Doc. 99-23 at 2).
The DOC Defendants allege that Christians' insomnia is and was caused by his untreated
anxiety following his cessation of psychiatric medication around June 23, 2017. Id. ^ 133-134.
On January 18, 2018, Christians noted that he had trouble sleeping, and a Psychiatric Chart Note
from this date indicated that this "probably [was] a result of coming off of his meds abruptly."
Id. ^ 135 (quoting Doc. 99-95 at 1). The chart note also stated that Christians had constant jingles
or songs in his head, and he could only sleep for three or four hours a night. Id. ^ 136 (citing
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Doc. 99-95 at 1). On June 19, 2019, Christians asked Health Services if he could get a sleep aid
and stated that he was trying to get offTrazadone. Id. ^ 138 (citing Doc. 99-27 at 3). The DOC
Defendants allege that Christians has not complained of insomnia to Health Services since that
visit. Id. ^ 140. Christians disputes this claim, stating that he still suffers from insomnia, but does
not cite to any specific Health Services records in which he reported insomnia. Doc. 120 TJ 140.
The DOC Defendants also allege that Christians' fatigue has been caused by celiac
disease, which they argue explains why he has reported being negative for fatigue since January
2020. Doc. 104 ^ 142-143. They further allege that this timeline somewhat coincides with
Christians being placed on a gluten-free diet. Id. ^ 143. Christians disputes these statements,
claiming that he experiences hunger pains, fatigue, dizziness, and lightheadedness when he
cannot afford to supplement his insufficient diet with commissary purchases. Doc.1201143.
The DOC Defendants note that Christians reported "continued difficulty with fatigue" as early as
April 9, 2014, but Christians attributes this to a former medication that he is no longer on. Doc.
104 TT 144 (quoting Doc. 99-77 at 1); Doc. 120 ^ 144. The DOC Defendants also attribute
Christians' fatigue to his history of anxiety, while Christians claims that he has no history of
anxiety. Doc. 104 ^ 145; Doc. 120 ^145.
9. Frequent Urination and Bowel Movements
Christians alleges that his diet has caused frequent urination and bowel movements. Doc.
26 ^ 52. He complained of increased urinary frequency to Health Services on October 6, 2017,
and on November 13, 2017. Doc. 104 ^ 146-147. He claimed that this issue had been ongoing
for two to four years. See id. Christians visited Dr. George Foumier, a urologist with the Yankton
Medical Clinic, on December 22, 2017. Id. ^ 150. Dr. Foumier noted that Christians had
previously been prescribed Ditropan for this issue, with little effect. Id. ^151 (citing Doc. 99-56
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at 1). Dr. Foumier discontinued Christians' Ditropan and prescribed Flomax. Id. ^152 (citing
Doc. 99-56 at 4). At a follow-up visit about three months later, Christians reported that his
urinary hesitancy improved after quitting Ditropan but that his urinary flow had not improved on
Flomax. Id. ^ 153 (citing Doc. 99-58 at 1). Dr. Foumier found that Christians' bladder emptying
had improved significantly and that Christians was drinking too much liquid, so he
recommended Christians cut his fluid intake in half and continue on Flomax. Id. If 154 (citing
Doc. 99-58 at 3).
Christians revisited Dr. Foumier about a month and a half later and reported that the
problem was improving, which is reflected in Dr. Foumier's report. Id. ^ 155-156 (citing Doc.
99-60 at 1). Christians again complained of frequent urination on February 22, 2019, and Health
Services told him to remain patient as his medication can take several months to provide a full
benefit. Id. ^ 162-163 (citing Doc. 99-21 at 2). After complaining again of frequent urination on
July 17, 2020, Christians explained that he was drinking at least eight cups of water a day. Id. ^
164 (citing Doc. 99-51 at 2-3). The DOC Defendants claim that Christians' excessive fluid intake
and anxiety likely caused his urinary frequency, and Christians states that he drinks so much
because of a constant thirst that he believes is caused by diabetes or prediabetes. Id. ^ 165-166;
Doc. 120 ^ 166. The DOC defendants also ascribe Christians' overactive bladder to coffee,
chocolate, and spicy foods, which are all among his commissary purchases. Doc. 104 ^ 169-
171. Christians claims that he consumed these products without any problems before he
developed urinary issues. Doc. 120 ^ 169.
Christians claims that he has had issues with chronic diarrhea and loose stools caused by
his diet. See Doc. 26 ^ 52. When he saw Dr. Gutnik on July 19, 2018, he reported a change in
bowel habits over about nine months. Doc. 104 ^ 158 (citing Doc. 99-62 at 1). Dr. Gutnik was
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concerned that Christians could have "malabsorption from underlying small bowel disease such
as celiac disease or even pancreatic insufficiency[,]" and he also suggested that inflammatory
bowel disease could be the cause. Id. H 159 (quoting Doc. 99-62 at 3). Christians underwent
biopsies and further testing, which mled out malabsorption but did not rule out gluten sensitive
enteropathy. Id. ^ 160-161 (citing Doc. 99-65 at 1). The DOC Defendants argue that Christians'
anxiety has contributed to his bowel issues, and Christians again disputes that he currently has or
has ever had anxiety. Id. ^ 167-169; see Doc. 120 ^ 167-168.
10. High Cholesterol
Christians alleges that his elevated cholesterol has been caused by his diet. See Doc. 26
^ 53-54. The DOC Defendants note that Christians had a cholesterol level of 282 mg/DL and an
LDL level of 189 mg/DL on April 5, 2017, but they explain that his cholesterol levels gradually
improved as he lost weight. Doc. 104 Tf 172 (citing Doc. 99-98 at 1). On or about September 28,
2017, Christians' cholesterol was 231 mg/DL and his LDL level was 143 mg/DL. Id. ^ 173
(citing Doc. 99-99 at 1). Christians' cholesterol was 203 mg/DL and his LDL level was 145
mg/DL on April 3, 2018. Id. ^ 174 (citing Doc. 99-100 at 1). By April 25, 2019, Dr. Gutnik
stated that Christians' numbers were "essentially normal except for some very modest
hyperiipidemia and a minimally elevated ALT." Doc. 99-66 at 1 . The DOC Defendants attribute
this improvement to Christians' gluten-free diet, although Christians claims that he no longer
follows this diet and that his lipid levels remain controlled by medication alone. Doc. 104 ^ 176;
Doc. 120 TI 176. They state that Christians continued to purchase items with gluten from the
commissary and that this caused his cholesterol to rise to 229 mg/DL and his LDL level to rise to
151 mg/DL on August 20, 2019. Doc. 104 ^ 176, 179 (citing Doc. 99-72 at 1).
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Christians disputes this conclusion, arguing that his cholesterol was high prior to his
increased commissary purchases, so the high cholesterol could not have been caused by his
commissary purchases. See Doc. 120 ^ 195. Because his cholesterol had only slightly improved
to a cholesterol of 216 mg/DL and an LDL level of 148 mg/DL by October 3, 2019, Christians
was placed on Lovastatin for his hyperlipidemia. Doc. 104 ^ 183-184 (citing Doc. 99-101 at 1).
He showed no improvement by March 26, 2020, so his provider doubled his dosage of
Lovastatin. Id. ^ 186 (citing Doc. 99-46 at 5). On September 19, 2020, Christians' cholesterol
was down to 209 mg/DL and his LDL level was 139 mg/DL. Id. ^ 189 (citing Doc. 99-103 at 1).
This is a borderline high cholesterol level and a moderate risk LDL level. Id. ^ 191-192 (citing
Doc. 99-97 at 1-2).
11. Hunger Strike
Christians makes several allegations regarding inadequate nutrition while in the
Segregated Housing Unit in his second amended complaint. See Doc. 83 ^ 127(N)-(WW).
Because of his objections to the quality and quantity of the food he received while in Segregated
Housing, Christians began a hunger strike on or about March 31, 2021. See Doc. 104 ^ 205. The
DOC Defendants state that Christians' health was closely monitored during this hunger strike,
that they repeatedly encouraged Christians to resume eating, and that they followed SDDOC
policy in evaluating Christians during the hunger strike. See Doc. 104 ^ 207-240. Christians
makes no claims regarding the DOC Defendants' treatment of him during this period other than
to allege that the meals offered to him before and during the hunger strike were inadequately
nutritious. See Doc. 83 ^ 127(N)-(WW); Doc. 120 ^206, 211, 221-222, 225. Christians states
that he lost 21 pounds in two weeks in Segregated Housing before he started his hunger strike.
Doc. 120 ^ 206. Thus, this Court does not constme Christians as bringing claims regarding his
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treatment during the hunger strike except as to the adequacy of the food he was served before
and during the strike.
12. Rejected Art Book
Christians claims that he has developed an interest in pastel painting and purchased art
supplies to pursue this interest. Doc. 26 ^ 136. Christians alleges that a friend of his purchased
and mailed him a book on pastel painting. Encyclopedia ofPastel Techniques, which was
rejected by SDSP officials in June 2020 because it contained nudity. Id. ^ 136-137. The DOC
Defendants acknowledge that this occurred and that Christians was notified of this rejection on
June 15, 2020. Doc. 104 ^ 243. In an Informal Resolution Request, Christians argued that he
should be allowed the book because it was not sexually themed and because the nudity contained
within did "not depict the subject lewdly or engaged in any actual or simulated sexual acts." Id. ^
244 (quoting Doc. 99-150 at 1). The DOC Defendants argue that SDDOC Policy 1.3.C.8 subjects
materials featuring "nudity or sexually explicit conduct" to rejection and that they were thus
justified in rejecting Christians' art book. Id, ^ 245 (quoting Doc. 101^ 44).
B. Legal Standard
The Court shall grant a motion for summary judgment "if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). A summary judgment motion must be supported by evidence on the
record, which may include affidavits or declarations based upon personal knowledge. Fed. R.
Civ. P. 56(c). The non-moving party is entitled to the benefit of having all reasonable inferences
resolved in his or her favor, but the non-moving party must present specific facts showing a
genuine issue for trial. Atkinson v. City of Mountain View, 709 F.3d 1201, 1207 (8th Cir. 2013)
(citation omitted). That is, a non-moving party must present "sufficient probative evidence"
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capable of supporting a finding in his or her favor, not "mere speculation, conjecture, or
fantasy." Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992) (en banc) (quoting
Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 681 (9th Cir. 1985)).
Section 1983 creates civil liability for a person who, acting under the color of state law,
deprives another of his or her federal constitutional or statutory rights. 42 U.S.C. § 1983.
However, "[q]ualified immunity shields a government official from liability in a § 1983 action
unless the official's conduct violates a clearly established constitutional or statutory right of
which a reasonable person would have known." Partlow v. Stadler, 774 F.3d 497, 501 (8th Cir.
2014) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "To overcome the defense of
qualified immunity, the plaintiff must show: (1) the facts, viewed in the light most favorable to
the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and (2) the right
was clearly established at the time of the deprivation." Howard v. Kan. City Police Dep't, 570
F.3d 984, 988 (8th Cir. 2009). For a right to be "clearly established," "[t]he contours of the right
must be sufficiently clear that a reasonable official would understand that what he is doing
violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). "Clearly established" law
cannot be demonstrated at a high level of generality; rather, it must put officers on "fair notice."
City and County of San Francisco v. Sheehan, 575 U.S. 600, 613, 616 (2015) (citations omitted).
To show that a right was clearly established, the plaintiff must provide either "controlling
authority ... which clearly established the rule on which [he or she] seek[s] to rely" or "a
consensus of cases of persuasive authority such that a reasonable officer could not have believed
that his actions were lawful." Wilson v. Layne, 526 U.S. 603, 617 (1999).
C. Legal Analysis
1. Eighth Amendment Claim
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The Eighth Amendment's prohibition against cmel and unusual punishment require
prisoners to be provided with nutritionally adequate meals to maintain health. See, e.g., Cody v.
CBMCorr. FoodServs., 250 F. App'x 763, 765 (8th Cir. 2007); Keenan v. Hall, 83 F.3d 1083,
1091 (9th Cir. 1996); Campbell v. Cauthron, 623 F.2d 503, 508 (8th Cir. 1980). "Merely because
the food is not prepared to an inmate's taste or the fact that an inmate would prefer other foods
does not implicate the Constitution. Rather, the Constitution is only violated if the food provided
is inadequate to maintain good health." Jones v. Alien, 2007 WL 2725218, *4 (W.D. Ark.
September 18, 2007) (citing Burgin v. Nix, 899 F.2d 733, 734-35 (8th Cir. 1990)). Additionally,
food must be prepared and served under conditions which do not present an immediate danger to
the health and well-being of the inmates who consume it. Wishon v. Gammon, 978 F.2d 446, 449
(8th Cir. 1992).
In Wishon, the Eighth Circuit Court of Appeals held that prisoners have a right to
adequate nutrition and the failure to provide adequate nutrition may qualify as a deliberate
indifference that violates the Eighth Amendment. Id. A prisoner making a deliberate indifference
claim for failure to provide adequate nutrition must show that "the food he was served was
nutritionally inadequate or prepared in a manner presenting an immediate danger to his health, or
that his health suffered as a result of the food." Id. In Ingrassia v. Schafer, the Eighth Circuit
held that it is "clearly established that a prisoner may properly allege a constitutional violation by
demonstrating significant weight loss or other adverse physical effects from lack of nutrition."
825 F.3d 891, 899 (8th Cir. 2016); see also Davis v. Missouri, 389 F. App'x. 579, 579 (8th Cir.
2010) (per curiam) (citing cases for the proposition that "inmate claiming inadequate diet under
Eighth Amendment must allege he lost weight or suffered adverse physical effects, or was
denied nutritionally or calorically adequate diet").
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To show deliberate indifference, an inmate must demonstrate that a prison official knew
the "inmate face[d] a substantial risk of serious harm and disregard[ed] that risk by failing to take
reasonable measures to abate it." Kenyan v. Dooley, 2014 WL 3700878, at *3 (D.S.D. July 25,
2014) (alterations in original) (quoting Coleman v. Rahija, 114 F.3d 778, 785 (8th Cir. 1997)).
An inmate must show that defendants "failed to act despite ... knowledge of a substantial risk of
serious harm." Ingrassia, 825 F.3d at 897 (omission in original) (quoting Farmer v. Brennan,
511 U.S. 825, 842 (1994)). Thus, Christians must show 1) that the nutrition he received was
inadequate or that he suffered weight loss or other adverse physical effects as a result of his diet;
and 2) that the DOC defendants were aware of and deliberately indifferent to the inadequate
nutrition.
Here, the DOC Defendants make no argument that Christians' right to an adequate diet is
not clearly established and only argue that "Christians has not and cannot demonstrate a violation
of his rights[.j" See Doc. 99 at 7. Thus, this Court need only determine whether Christians'
Eighth Amendment rights were violated.
a. Calorie Intake
The DOC Defendants argue that Christians' allegations are insufficient to state an Eighth
Amendment violation because the calorie amounts alleged by Christians do not constitute a
violation. Doc. 99 at 24. They cite to two Western District of Arkansas cases which found that
"in attaining a healthy weight, the National Institutes of Health indicates that eating plans
containing 1200 to 1600 calories each day are suitable for men." Id. (cleaned up) (quoting
Giddings v. Cradduck, 2017 WL 2791345, at *7 (W.D. Ark. June 6, 2017)); see also Avery v.
Helder, 2017 WL 9477752, at * 13 (W.D. Ark. July 21, 2017). Thus, defendants argue, even if
Christians were receiving 1,750 calories a day, he would be receiving sufficient nutrition. Id.
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This Court cannot say that, as a matter of law, Christians' allegations are insufficient to
state an Eighth Amendment violation. Christians puts forth evidence, in the form of the USDA
Dietary Guidelines calorie needs chart, that he requires 2,600 to 2,800 calories a day. Doc. 74-1
at 39. Language preceding this chart states that "the reference man is 5 feet 10 inches tall and
weighs 154 pounds." Id. at 38. Christians is 6'2" and weighs well over 154 pounds. See Doc. 99-
1 at 2. Thus, it follows that his calorie needs are greater than those estimated in the USDA
Dietary Guidelines calorie needs chart. Further, Christians alleges that he requires 4,476 calories
a day under the Mifflin-St. Jeor equation. Doc. 119 ^ 14. The two cases cited by the DOC
Defendants cite to a National Institutes of Health webpage that is no longer active, so this Court
cannot evaluate the claims that 1,200 to 1,600 calories a day are sufficient for a male seeking to
lose weight. See Giddings, 2017 WL 2791345, at *7 n.6; Avery, 2017 WL 9477752, at * 13 n.10.
And the 2017 food service review by Barbara Wakeen noted that the recommended calorie
amount for the "average reference male" was 2,757. Doc. 99-78 at 7. Losing weight may require
a lower calorie intake than that required for maintaining weight. But without further evidence,
Christians' allegations that he has received between 1,750 to 2,000 calories a day state a
violation of his Eighth Amendment rights.
The DOC Defendants next argue that Christians' estimation of his calorie intake is
incorrect. Doc. 99 at 24-29. The DOC Defendants note the several instances in which Christians
told Health Services employees and Dr. Gutnik that he was eating a lot of commissary,
increasing his calorie intake, eating about 4,000 or 5,000 calories a day, and attending all meals.
Id. at 27-28. The DOC Defendants further note the 2017 evaluation performed by Wakeen as
evidence that the calorie average at MDSP was 2,760 and that "the SDDOC overall provides a
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quality, nutritious low-cost meal to inmates."8 Id. at 25 (quoting Doc. 99-78 at 2). The DOC
Defendants argue that Christians "had no personal knowledge about the nutritional content of
[the meals] to create a fact question as to their nutritional value" and that he lacks the training or
education to estimate calorie counts. Id. at 26 (alteration in original) (quoting Donahue v.
Plummer, 2019 WL 5076646, at * 14 (E.D. Ark. May 21, 2019)).
Because this Court relied on Wakeen's report in Brakeall v. Stanwick-Klemik to find that
the plaintiff "ha[d] not raised genuine issues of material fact that the food served in MDSP is
nutritionally adequate[,]" the DOC Defendants argue that this Court should reach a similar result
in the present case. Id. (first alteration in original) (quoting Brakeall v. Stanwick-Klemik, 2020
WL 1180727, at *15 (D.S.D. Mar. 11, 2020)). InBrakeall, the plaintiff made several allegations
regarding the quality and quantity of food served in MDSP and the sanitation and hygiene of the
food service program. 2020 WL 1180727,at * 14. The plaintiff alleged that he received the same
lunch and dinner every day for his Kosher diet: "a six ounce bowl of instant rice mix (formerly
12 ounces), an apple, baby carrots, and a peanut butter and jelly on rye sandwich." Id. (citation
omitted). He alleged that sometimes he would only receive "a tea bag, a few slices of lunch meat,
and a piece ofmatzoh." Id. (citation omitted). He also claimed that CBM9 would cut portion
sizes when they ran out of food. Id. The plaintiff noted that across the 21 main line meals served
each week, only two or three trays a month were severely impacted by these shortages, but he
argued that "if you are the one getting chili water soup because they ran short again ...you
might conclude that there is a pattern to the failures[.]" Id. (omission and alteration in original)
(citation omitted). Thus, the plaintiff in Brakeall argued that he and other inmates sometimes
8 This quote comes from the 2017 evaluation's executive summary, which appears to have been
drafted by DOC officials, not Wakeen. See Doc. 99-78 at 3.
CBM is the prior name of Summit Food Service.
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received inadequate meals. Id. This Court found that Wakeen's 2017 evaluation, along with the
plaintiffs concession that only two or three trays a month were severely impacted by shortages,
established that nutrition was not inadequate at MDSP. See id. at * 14-15.
Here, Christians alleges both that the food quality and nutritional value are insufficient
across the board at MDSP and SDSP, similar to the claims made in Brakeall, and he also makes
detailed allegations regarding the food that he, personally, has received. See Doc. 118 at 14-15.
As to overall quality and nutrition, Christians submits an affidavit from a fellow inmate, Samuel
Lint, who claims that the food provided by Summit Food Service does not meet contractual
obligations for quality and nutritional value. Doc. 95. Lint claims to have specific knowledge of
Summit's obligations under their contract with the DOC because he requested and received a
copy of that contract. Id. at 1. Christians has submitted other inmate affidavits making similar
claims. See, e.g.. Doc. 96. As to Christians' meals, he provides detailed food journals
demonstrating his calorie intake over two time periods. Doc. 1 14 at 6-24. Christians provides
evidence of inadequate nutrition beyond that offered by the plaintiff in Brakeall.
The DOC defendants argue that these journals, along with grievances submitted by
Christians to MDSP and SDSP, "do not amount to evidence" because they are "mere
allegations." Doc. 128 at 10. This Court disagrees. Although claims of inadequate nutrition laid
out in a complaint may be mere self-serving allegations, inmate affidavits and documentation of
food consumed rises above the level of "mere speculation, conjecture, or fantasy." See Gregory,
974 F.2d at 1010. The DOC Defendants argue that Christians' past statements that he had been
receiving up to 4,000 calories a day raise questions of credibility. Doc. 128 at 6, 10. But
credibility is not a question for the Court on summary judgment. Ingrassia, 825 F.3d at 897
(citing Tlamka v. Serrell, 244 F.3d 628, 634 (8th Cir. 2001)).
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The DOC Defendants point to an admission provided by the Summit Defendants in
response to a discovery request in which they state that "each diet served at SDSP has a
minimum calorific value of 2,700 calories as required by the contract between Summit and the
South Dakota Department of Corrections." Doc. 128 at 8 (quoting Doc. 118 at 30). Christians
raises questions regarding the calorie value of food served to him from 2017 to today, and while
the Summit Defendants' admission, along with the 2017 and 2019 evaluations, provide answers
as to what an inmate could reasonably expect to receive as a food tray during this time, they do
not provide any more evidence as to what Christians was actually served than do the food
journals, grievances, and inmate affidavits offered by Christians. Genuine questions of material
fact remain as to Christians' calorie intake, and summary judgment is denied on this issue.
b. Weight Loss
The DOC Defendants admit that Christians lost a significant amount of weight while at
SDSP and MDSP, but they argue that this weight loss must be considered in the context of his
prior obesity. Doc. 99 at 29-30. The Eighth Circuit rejected a similar argument in Ingrassia,
where the defendants argued that "they [could not] be liable for withholding adequate nutrition,
because the objective evidence—[the plaintiffs Body Mass Index]—demonstrate^] adequate
nutrition." 825 F.3d at 897. Specifically, the defendants argued that because the plaintiffs Body
Mass Index stayed within the "normal" range, he could not have been underfed. Id. The
Ingrassia court noted that this was a factor favoring defendants but not one that foreclosed an
inadequate-nutrition claim as a matter of law. Id. at 897-98. Similarly, this Court cannot say that
Christians' weight loss was not an adverse health effect solely because he was obese prior to
losing weight.
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The DOC Defendants further argue that Christians' weight loss was not excessive
because he only lost 50 pounds in 5 months, which would fall under the one to two pounds per
week deemed safe by Dr. Carpenter. Doc. 99 at 31. But the record shows that Christians lost
weight at a greater rate than one to two pounds per week at certain times in 2017. See Doc. 73-1
at 1. Between April 19 and July 12 of 2017, Christians lost 30 pounds, or two and a half pounds
per week. Id. Between September 6 and October 4 of 2017, Christians lost 16 pounds, or four
pounds per week. Id. In Ingrassia, the Eighth Circuit noted that when nutrition is inadequate, a
"19-pound weight loss in 8 months [is] sufficient to state a constitutional violation^]" 825 F.3d
at 898 (citing Davis, 389 F. App'x at 579). Given that Christians was obese before he began
losing weight, his weight loss may have been healthy and thus not an adverse health effect
caused by his diet, but this Court is in no position to make that determination at this time.
The DOC Defendants argue that Christians' weight loss was not caused by inadequate
nutrition but instead by a combination of his quitting psychiatric medications that caused weight
gain and his celiac disease. Doc. 99 at 20-23. Christians expressed concern about his mental
health medications' impact on his weight in April 2017, but he did not quit his medications until
around June 23, 2017. Doc. 99 at 22. Christians weighed 304 pounds on April 19, 2017,and he
weighed 284 pounds on June 14, 2017. Doc. 73-1 at 1. Thus, by the time he quit his psychiatric
medications, Christians had already lost 20 pounds in eight weeks, or two and a half pounds per
week. See id.
Christians disputes his diagnosis ofceliac disease, arguing that his mistaken belief as to
his calorie intake resulted in a mistaken diagnosis by Dr. Gutnik. Doc. 118 at 10-11. According
to Christians, he told Dr. Gutnik that he was receiving 2,800 to 3,000 calories a day from his
meals but has since learned that he was receiving fewer calories than that. Id. at 10. He argues
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that Dr. Gutnik's diagnosis ofceliac disease was based on incorrect information. Id. at 10-11. He
further argues that he informed Dr. Gutnik of the mistake and that Dr. Gutnik has since "changed
his tune on [Christians' celiac disease diagnosis]." Id. The DOC Defendants argue that
Christians' change in medications and his celiac disease "in combination, would account for the
difficulty, at the time, to pinpoint a precise reason for Christians' loss of weight." Doc. 99 at 23
(citing Doc. 103 ^ 132). Given Dr. Gutnik's difficulties in diagnosing Christians, the DOC
Defendants are correct that the cause of Christians' weight loss is difficult to identify. Dr. Gutnik
initially stmggled with Christians' diagnosis, concluding that Christians was a "complex" case in
which some factors suggested celiac disease and some did not. See Doc. 99-66 at 3. Dr. Gutnik
ultimately recommended Christians stay on his gluten-free diet, but this diagnosis was made
while Dr. Gutnik and Christians both believed Christians was eating 4,000 or more calories a
day. See id. at 1 .
Again, as the non-moving party, Christians must put forth "sufficient probative evidence"
to support a finding in his favor as to the cause of his weight loss. See Gregory, 974 F.2d at
1010. This Court finds that Christians has met his burden. Essentially, this Court has been
presented with two explanations for Christians' weight loss. First is that Christians lost weight
because his meals were insufficiently nutritious, and his prior statements to medical
professionals that he was getting about 3,000 calories a day through meals, plus more calories
through commissary, were mistaken because he only learned that his meals were insufficiently
nutritious after he had lost weight and began investigating his calorie intake. Although the DOC
defendants repeatedly insist that Christians' varying statements about his calorie intake
demonstrate a lack of honesty, they could also show that Christians was honestly mistaken about
his calorie intake. The second explanation is that Christians lost weight after he quit medication
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that can cause weight gain and after he was diagnosed with celiac disease, which can cause
weight loss when untreated. But Christians began losing weight before quitting his medications,
and his diagnosis ofceliac disease was partially dependent on Dr. Gutnik's belief that Christians
was receiving 3,000 calories a day from meals. Because genuine questions of fact exist regarding
Christians' calorie intake, and the cause of Christians' weight loss is dependent on his calorie
intake, genuine questions of fact exist regarding the cause of Christians' weight loss as well.
Summary judgment on this issue is denied.
c. Loss of Muscle and Strength
The DOC Defendants argue that Christians' medical records do not support his claim that
he has lost muscle and strength. Doc. 99 at 31. They note that Christians' medical records
indicated good muscle tone and strength at several visits to Health Services from 2017 to 2020.
Id. at 31-33. But Christians' medical records also show that he repeatedly complained of muscle
and strength loss to Health Services and that he reported a 150-pound reduction in the amount he
could bench press. See Doc. 99-74 at 2.
The DOC Defendants' argument resembles that of the defendants in Ingrassia, who
unsuccessfully argued that a healthy Body Mass Index foreclosed a claim of inadequate nutrition.
825 F.3d at 897-98. Here, the DOC Defendants argue that Christians fails to show muscle loss
because he had good muscle tone throughout the time period in question, but it is possible to lose
muscle and still retain good muscle tone. The DOC Defendants offer no other explanation for
Christians' muscle and strength loss except to note that one instance ofleft-side weakness was
caused by a neck injury. See Doc. 99 at 31-33; Doc. 104 ^ 87-88.
Christians argues that his medical records actually show that he has lost muscle mass.
Doc. 118 at 16. Because he lost a considerable amount of weight while consistently having good
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muscle tone, Christians argues that the findings of good muscle tone indicate he did not have a
significant amount of fat to lose and thus he must have lost muscle mass. See id. The DOC
Defendants respond that if Christians were losing muscle and not fat, his medical records would
not describe his muscle tone as good and would not describe him as being physically fit, and thus
he must have been losing fat and not muscle. Doc. 128 at 21. These competing arguments speak
to the vagaries of relying on a finding of "good muscle tone" to argue for or against a loss of
muscle or strength. Christians' medical records indicate a significant reduction in his
weightlifting capability and repeated complaints of muscle and strength loss. See Doc. 99-74 at
2. As above, the genuine questions of fact regarding Christians' calorie intake become genuine
questions of fact regarding the cause of his muscle and strength loss. Thus, Christians has met his
burden to survive summary judgment on this issue.
d. Diabetes
The DOC Defendants argue that Christians' medical records show no signs of diabetes.
Doc. 99 at 33. Christians acknowledges that he does not have diabetes but claims that he is faying
to prevent diabetes from developing. Doc. 118 at 17. He argues that his diet puts him at risk of
developing diabetes. Id. Christians also alleges that he is constantly thirsty and that this is a sign
of diabetes. Doc. 120 ^ 166. The DOC Defendants argue that Christians' "perceived risk is far
too speculative to warrant relief." Doc. 99 at 34.
To the extent that Christians seeks injunctive relief, he need not "await the consummation
of threatened injury to obtain preventive relief." Farmer, 511 U.S. at 845 (quoting Pennsylvania
v. West Virginia, 262 U.S. 553, 593 (1923)). But he still must show a substantial risk of serious
injury and deliberate indifference to that risk. Id. Here, Christians argues that the SDDOC diets
do not meet standards set by the American Diabetes Association. Doc. 118 at 17. He argues that
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prison menus must reflect these standards, but the Middle District of Alabama case that he cites
to for this proposition, Gaddis v. Campbell, specifically dealt with medical and dietary
requirements for diabetic inmates and does not apply here. See 301 F. Supp. 2d 1310, 1311-12
(M.D. Ala. 2004). The risk of harm alleged by Christians is not substantial enough to rise above
the speculative level as required by Gregory. See 974 F.2d at 1010. Summary judgment is
granted to the DOC Defendants on this issue.
e. High Blood Pressure
Christians acknowledges that he does not have high blood pressure but argues that losing
weight quickly may have increased his risk of high blood pressure. Doc. 118 at 16. Here,
Christians makes no claims regarding risk of future harm. See id. The DOC Defendants note that
Christians' blood pressure improved as he lost weight and has been stable since January 4, 2018.
Doc. 99 at 35. Thus, the DOC Defendants are granted summary judgment on this issue.
f. Thyroid Function
Christians alleges that his weight loss risked depressing his thyroid function because of
the release of dangerous chemicals from fat cells. See Doc. 118 at 18. The DOC Defendants note
that Christians was diagnosed with hypothyroidism when he was first incarcerated in 2013 and
was placed on medication. Doc. 99 at 35-36. About four years later, he took himself off this
medication and has not had complaints or abnormal thyroid test results since. Id. at 36. Again,
Christians makes no claims regarding risk of future thyroid harm and only alleges that his weight
loss put him at risk of past harm that does not appear to have occurred. See Doc. 118 at 18. The
DOC Defendants are granted summary judgment on this issue.
g. Fainting Spells and Dizziness
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Christians alleges that he has suffered from fainting spells and lightheadedness because
of his diet. Doc. 118 at 18. The DOC Defendants argue that Dr. Carpenter concluded that diet was
not the cause of these issues after reviewing his medical records. Doc. 99 at 37. They note that
Christians first reported fainting spells on January 4, 2018, at which point he said they had been
ongoing for about three weeks. Id. According to the DOC Defendants, this shows that any
fainting spells were not caused by diet because Christians would have likely suffered them
during the five years prior to January 2018 that he had been incarcerated. Id. They argue that
Christians' anxiety and medications caused his fainting spells, noting that Clonidine, Fluoxetine,
and Flomax all may have contributed to his dizziness. Id. at 37-38. Because Christians started
Flomax shortly before January 2018, the DOC Defendants point to Flomax as a likely cause of
dizziness. Id. at 38. They also argue that earwax buildup could have been a factor. Id. at 39.
Christians argues that the fainting spells and dizziness can be connected to his diet because he
experiences these issues when he is out of commissary money and cannot supplement his diet.
Doc. 118 at 18. He further argues that he has experienced these episodes while not on
medication. Id.
The Court finds that Christians has not presented sufficient probative evidence to show a
genuine issue of material fact regarding Christians' fainting spells and dizziness. The DOC
defendants have put forth evidence that these issues have been caused by Christians' other
medical conditions. See Doc. 99 at 37-39. Christians puts forth no evidence, other than his own
allegations, that his fainting spells and dizziness were caused by his diet or lack of nutrition. See
Doc. 118 at 18. Under Atkinson, Christians "must present specific facts showing a genuine issue
for trial." 709 F.3d at 1207. Christians' claims regarding his fainting spells and dizziness are
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mere speculation. See Gregory, 974 F.2d at 1010. Thus, the DOC defendants are granted
summary judgment on this issue.
h. Fatigue
Christians alleges that he has suffered from fatigue and insomnia as a result of his diet.
See Doc. 118 at 18. The DOC Defendants argue that these issues are caused by Christians'
anxiety and mental health medications. Doc. 99 at 39-40. When first incarcerated in 2013,
Christians was taking Zyprexa, Remeron, and Depakote, which can cause fatigue according to
Dr. Carpenter. Id. (citing Doc. 103 ^ 146). Christians has also been prescribed other mental
health medications, including Clonidine, Fluoxetine, and Trazodone, since then. Id. at 40. These
medications also can cause fatigue. Id. (citing Doc. 103 ^ 147). Medical staff told Christians on
April 8, 2019, that some of his symptoms, including fatigue, were related to his mental health
issues and medications. Id. Christians argues that medication could not have caused his fatigue
because he suffered from fatigue while not on mental health medication. Doc. 118 at 18-19. The
DOC Defendants also argue that Christians' fatigue was caused by celiac disease. Doc. 99 at 41.
Christians has reported being negative for fatigue since January 2020, and the DOC Defendants
claim that this "coincide[s], somewhat," with the time period when Christians began adhering to
his gluten-free diet. Id. The DOC Defendants also point to an injection Christians underwent
shortly before December 6, 2019, as an event that may have caused fatigue. Id. at 41-42. They
note that there are "a variety of factors identified in [Christians'] medical records, other than the
alleged poor diet," that could have caused fatigue. Id. Christians argues that "[ajnyone who has
ever not had enough to eat has likely experienced fatigue." Doc. 118 at 18.
The DOC Defendants have identified several potential causes of Christians' fatigue
unrelated to his diet. Doc. 99 at 39-42. Christians has put forth no specific facts showing a
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genuine issue regarding the cause of his fatigue and relies only on his own speculative
allegations that his fatigue has been caused by his diet. See Doc. 118 at 18. Thus, the DOC
defendants are granted summary judgment on this issue.
i. Insomnia
Christians alleges that he has suffered from insomnia caused by his diet. See Doc. 118 at
19. The DOC Defendants argue that Christians' insomnia is likely caused by his untreated
anxiety, given that Christians quit his mental health medication in July 2017. Doc. 99 at 42.
Christians later went to Health Services on January 2, 2019, and stated that he told Mental Health
of his insomnia, for which he was put on Clonidine and Trazadone. Id. at 43. Around that time
and also on June 19, 2019, Christians asked Health Services for a sleep aid, which is not
prescribed by Health Services. Id. at 43-44. Since that time, Christians has not reported insomnia
to Health Services. Id. at 44.
Christians argues that he does not suffer from anxiety, and that if he did, his medication
would have addressed it. Doc. 118 at 19. Instead, Christians notes that his insomnia began when
he started losing weight. Id. Christians makes no argument as to how weight loss has caused
insomnia other than that the two began at the same time. See id While it is intuitive how some
issues, such as fatigue, can stem from a lack of nutrition, insomnia does not connect as easily to
poor diet or weight loss. Thus, because Christians has put forth no evidence linking his insomnia
to his diet, summary judgment is granted for the DOC Defendants on this issue.
j. Frequent Urination and Bowel Movements
Although Christians alleged in his complaint that his frequent urination was caused by his
diet, he affirmatively declined to address this issue in his brief in opposition to summary
judgment. Doc. 118 at 19. He also states that his "frequent and loose stools subsided with a
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probiotic and fiber added to his diet as reported to Dr. Gutnik." Id. To the extent that this
problem was caused by an inadequate diet in the first place, the problem has been addressed
through a change to Christians' diet. Thus, because the DOC Defendants have addressed this
problem, they were not deliberately indifferent to the dietary issues that caused it. Summary
judgment is granted to the DOC Defendants on this issue.
k. High Cholesterol
Christians alleges that his diet contains high-cholesterol foods, resulting in his high
cholesterol. Id. at 19-21. The DOC Defendants cite to Cody v. CBM Correctional Food Services
for the proposition that failure to provide a prescribed diet for high cholesterol does not qualify
as deliberate indifference to serious medical needs in violation of the Eighth Amendment "in
absence of evidence that the food [Christians] was served was not [sic] nutritionally inadequate."
Doc. 99 at 48 (quoting10 Cody, 250 F. App'x at 765). A prisoner alleging a claim for deliberate
indifference to inadequate nutrition must show that the food "was nutritionally inadequate or
prepared in a manner presenting an immediate danger to his health, or that his health suffered as
a result of the food." Id. (quoting Wishon, 978 F.2d at 449). In Cody, the Eighth Circuit affirmed
the district court's finding that the plaintiff offered "no verifying medical evidence that the
defendants ignored an acute or escalating situation or that delays adversely affected the
prognosis given the kind of injury in [the] case." Id. (internal quotation omitted). Under Cody, a
prisoner can bring a claim by showing that his health suffered as a result of the food, and high
cholesterol caused by a prison diet would fall under this label. See id The DOC Defendants also
Although the DOC Defendants attribute this quote to the Eighth Circuit's ruling in Cody, this
exact language not found within the text ofCody. See 250 F. App'x at 764-65. Similar language
in Cody states that a prisoner must show that "the food he was served was nutritionally
inadequate or prepared in a manner presenting an immediate danger to his health, or that his
health suffered as a result of the food." Id. at 765 (quoting Wishon, 978 F.2d at 449).
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argue that the diet at the SDDOC facilities is healthy, but this argument again relies on the
misinterpretation of the 2019 evaluation's reference to NCCHC standards discussed above. See
Doc. 99 at 49.
The DOC Defendants argue that Christians' medical records show that his cholesterol has
decreased since he started losing weight and since he has been prescribed Lovastatin. Id. at 50-
51. Christians acknowledges that this is tme but argues that he should not require high doses of
medication to address an issue caused by his poor diet. Doc. 118 at 20. He argues that the lack of
fruit, non-starchy vegetables, and fiber in his diet, along with the six servings of fats, sweets, and
oils that he alleges the diet contains daily, has caused his high cholesterol. Id. The DOC
Defendants also argue that Christians' elevated cholesterol levels are caused by his consumption
ofcommissary foods, many of which are unhealthy snacks. Doc. 99 at 52-53. Christians claims
that some of the commissary foods he purchases are traded to or shared with other inmates and
that he does not consume a significant amount ofcommissary foods, noting that some of the
purchases he has made, such as 15 four-ounce blocks of cheese and 19 bags of chips over the
course of a year, are small quantities when the timeframe is taken into account. Doc. 118 at 20-
21. He also claims that he purchases commissary to supplement his insufficient meals and that
his cholesterol was elevated before he began purchasing significant amounts of commissary. See
id. at 17-18, 21. The DOC Defendants note that trading ofcommissary purchases is not allowed
by SDDOC policy. Doc. 128 at 25-26.
The DOC Defendants have put forth evidence that Christians' high cholesterol has not
been caused by his diet and that his high cholesterol is being treated. Doc. 99 at 50-53. Christians
provides no "specific facts showing a genuine issue for trial" as to the cause of his high
cholesterol. See Atkinson, 709 F.3d at 1207. Instead, he only offers speculative allegations that
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his high cholesterol has been caused by his diet. See Doc. 118 at 20-21. Thus, the DOC
defendants are granted summary judgment on this issue.
1. Deliberate Indifference
The DOC Defendants argue that they did not fail to act in response to any risk of
substantial harm posed to Christians and were thus not deliberately indifferent to that risk. Doc.
99 at 11-16. The DOC Defendants point to the 2017 and 2019 evaluations as steps taken to
"ensure inmates have access to nutritious meals while incarcerated with SDDOC facilities." Id.
at 12 (quoting Doc. 99-78 at 3). The 2017 evaluation included an "off-site review evaluating the
DOC menus and food service program, including a summary nutritional analysis of the main
menu and therapeutic diets." Id. (quoting Doc. 99-78 at 3). It also included "unannounced on-site
reviews ... conducted by the SDDOC Director of Operations and the independent consultant."
Id. at 12-13 (quoting Doc. 99-78 at 4). The DOC Defendants note that the 2019 evaluation found
that sodium had been further reduced since 2017 and that the only "notable recommendation or
concern" was a lack of fresh fmit or vegetables. Id. at 13. They further note that the 2019
evaluation concluded that SDDOC facilities are NCCHC accredited and thus adhere to NCCHC
standards which include "the American Heart Association diet and lifestyle recommendations
and the USDA Dietary Guidelines." Id. (quoting Doc. 99-79 at 7).
As discussed above, the DOC Defendants misrepresent the 2019 evaluation, which
expressly stated the opposite regarding the NCCHC standards. See Doc. 99-79 at 7-8. Instead of
claiming that the DOC adheres to the NCCHC standards, the 2019 evaluation expressed concern
that the DOC's practice of combining medical and specialty diets resulted in a lack of attention
to the NCCHC standards for main population menus. Id. As to the NCCHC standards, the 2019
evaluation concluded that "[tjhe main population menus meet some of these criteria" before
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explaining that "[i]f menus were aligned further with some of these nationally recognized
standards, recommendations and guidelines," the DOC could reduce the number and types of
medical diets and optimize cost and health outcomes. Id. at 8. Further, this concern was listed
under "notable recommendations or concerns [,]" along with the lack offmit and vegetables. Id.
The other notable recommendations or concerns listed were lack of supervision at breakfast and
a high percentage ofkosher diets with selective participation at meals. Id.
The 2019 evaluation noted several other concerns at SDSP, such as a lack of color in
meals, breakfast trays that were still wet, and some portion and quality issues, such as oatmeal
that appeared thin, a failure to serve applesauce until this was mentioned to the supervisor, and
an underserved portion of eggs until the portion was questioned. Id. at 1. Another portion of the
evaluation noted that "some portions were in question" during a different breakfast service at
SDSP. Id. at 3. Several sanitation concerns, such as areas of the kitchens that needed to be
mopped or cleaned, were noted. Id. at 2-4. Other than noting that thermostats on the tray washing
machines were in need of repair, the 2019 evaluation did not raise any concerns at MDSP. Id. at
7. Also, the 2019 evaluation did not contain any sort of nutritional analysis that discussed calorie
amounts for meals. See id. at 1-8.
The DOC Defendants argue that they "reasonably responded to the alleged problem .. .
by retaining an independent consultant," and that this response "serves to preclude any finding of
deliberate indifference." Doc. 99 at 16 (citing Mays v. Springborn, 575 F.3d 643, 648 (7th Cir.
2009) (per curiam)). In Mays, the Seventh Circuit Court of Appeals found that "prison officials
acknowledged that [the plaintiffs] diet was inadequate and took steps to fix it" when an
administrator agreed with the plaintiff "that the vegan menu at [the prison] was deficient and
promised to change it." Mays, 575 F.3d at 646, 648. It is unclear whether prison officials in Mays
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actually changed the vegan menu or merely promised to do so, but in any case, officials
acknowledged the problem, and the Seventh Circuit found that officials took steps to address the
problem. See id Here, the DOC Defendants have taken steps towards investigating the alleged
problem by having evaluations done in 2017 and 2019, but rather than take steps towards fixing
it, they argue that the problem does not exist. That may be the case, as there are genuine
questions of material fact regarding Christians' calorie intake and the cause of his weight loss
and other adverse health effects. But if Christians has, in fact, been underfed for significant
portions of the past five years, then merely conducting two third-party evaluations in 2017 and
2019u does not serve as a reasonable response that would preclude a finding a deliberate
indifference. See Gray v. Hardy, 826 F.3d 1000, 1009 (7th Cir. 2016) ("Knowingly persisting in
an approach that does not make a dent in the problem is evidence from which a jury could infer
deliberate indifference.").
The DOC Defendants argue that Christians is "attempting to hold prison officials liable
based solely on their responses to the various grievances he submitted in connection with his
medical dilemmas directly related to his diet." Doc. 99 at 16 (internal quotation omitted). Eighth
Circuit precedent is clear that "denial of [a plaintiffs] grievances [does] not state a substantive
constitutional claim[.]" Lomholtv. Holder, 287 F.3d 683, 684 (8th Cir. 2002) (per curiam); see
also Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (per curiam) ("[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 [FJourteenth [A]mendment." (first alteration in original) (quoting Azeez v.
11 Christians disputes that the 2019 evaluation involved a third party, arguing that it was
conducted by the DOC Director of Operations. Doc. 120 ^ 21. The record is unclear as to who
conducted this evaluation. See Doc. 99-79.
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DeRobertis, 568 F. Supp. 8, 10 (N.D. 111. 1982))). While the DOC Defendants are correct that
denial of Christians' grievances is not itself a constitutional violation, grievances are evidence
that prison officials were aware of the grieved conditions, a necessary element of deliberate
indifference. See Farmer, 511 U.S. at 846 ("[T]o survive summary judgment, [a plaintiff seeking
injunctive relief] must come forward with evidence from which it can be inferred that the
defendant-officials were at the time suit was filed, and are at the time of summary judgment,
knowingly and unreasonably disregarding an objectively intolerable risk of harm, and that they
will continue to do so[.]"). Most importantly, the DOC Defendants do not identify the individual
defendants whose sole participation in this action was responding to Christians' grievances and
do not move for summary judgment on claims against specific individual defendants on these
grounds. See Doc. 99 at 16-20.
The DOC Defendants assert that they cannot be held liable, in their individual capacities,
for menus prepared by the registered dietician. Id. at 18. Noting that "prison officials cannot be
held liable for refusing to override a prison doctor's decision[,]" the DOC Defendants argue that
they "have no authority to change any of the dietary decisions made by the registered dietician."
Id. at 18-19. The DOC Defendants make a strong argument that failure to change or override the
registered dietician's dietary decisions alone does not constitute deliberate indifference, but
Christians' claims extend beyond alleging a failure to reverse dietary decisions or alleging that
the menu was insufficient. See id.; Doc. 118 at 5. Christians argues that "the menu was not being
adhered to[,]" that it was being altered, and that incorrect portion sizes were listed. Doc. 118 at 5.
He also argues that he filed grievances and had conversations with several individual defendants
regarding these issues. Id. at 5-6.
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The DOC Defendants argue that they were not deliberately indifferent because they
passed several of Christians' grievances on to Summit and instmcted Christians to contact
Summit. Doc. 99 at 17 n.4. They cite to Giddings, in which the Western District of Arkansas
found that defendants could be deliberately indifferent to an inmate's nutritional needs, even
when they contracted food service to an outside party, because they failed to pass the plaintiffs
food grievances on to kitchen staff in all but one instance.12 2017 WL 2791345,at *6. Here,the
DOC Defendants are correct that passing several grievances on to Summit demonstrates more of
a response than the actions of the defendants in Giddings, but this does not preclude a finding of
deliberate indifference. See id. The State of South Dakota and its prison officials should take no
comfort in the fact that they have contracted with Summit for an adequately nutritious diet. It is
still the function of the public entity that has custody of the prisoners to ultimately see that their
nutritional needs are met.
The Giddings court also found that "[c]ontracting out prison [food service] does not
relieve the State of its constitutional duty to provide [an adequate diet] to those in its custody,
and it does not deprive the State's prisoners of the means to vindicate their Eighth Amendment
rights." Id. (second and third alterations in original) (quoting West v. Adkins, 487 U.S. 42, 56
(1988)). The DOC Defendants still have a constitutional duty to provide an adequate diet to
inmates. See id. If passing grievances along to Summit during the five years that Christians
claims he has not been receiving an adequate diet did not address the alleged food issues, then
the DOC Defendants may have been deliberately indifferent regarding that duty. See Gray, 826
In Giddings, the court ultimately found that the plaintiffs diet was nutritionally adequate and
that defendants were entitled to summary judgment. 2017 WL 2791345, at *7.
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F.3d at 1009. Thus, this Court cannot say that the DOC Defendants were not deliberately
indifferent to the risk of harm posed to Christians by his diet.
Because genuine questions of material fact remain regarding Christians' calorie intake,
the cause of his weight loss and other adverse health effects, and the DOC Defendants' response
to these alleged issues, summary judgment is not appropriate at this time.
2. First Amendment Claim
"[A] prison inmate retains those First Amendment rights that are not inconsistent with his
status as a prisoner or with the legitimate penological objectives of the corrections system." Pell
v. Procunier, 417 U.S. 817, 822 (1974). "[W]hen a prison regulation impinges on inmates'
constitutional rights, the regulation is valid if it is reasonably related to legitimate penological
interests." Turner v. Safley, 482 U.S. 78, 89 (1987). In Turner, the Supreme Court provided four
factors to determine whether a prison regulation withstands scrutiny:
(1) whether there is a valid, rational connection between the regulation and the
asserted governmental interest; (2) whether alternative means for exercising the
right remain open to the prisoner; (3) the impact of the regulation on prison staff,
other inmates, and the allocation of prison resources; and (4) the availability of
ready alternatives to the regulation.
Hamilton v. Schriro, 74 F.3d 1545, 1551 (8th Cir. 1996) (citing Turner, 482 U.S. at 89-91).
"[PJrison officials may lawfully censor prison mail that is detrimental to the security, good order
and discipline of the institution." Kaden v. Slykhuis, 651 F.3d 966, 968 (8th Cir. 2011) (per
curiam) (citing Thornburgh v. Abbott, 490 U.S. 401, 404 (1989)). "The first factor [ofTurner]
operates as a threshold condition that the regulation must satisfy to pass constitutional muster."
Sisney v. Kaemingk, 15 F.4th 1181, 1190 (8th Cir. 2021). "Assuming the regulation satisfies this
threshold requirement, the court must detennine the regulation's constitutionality by balancing
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the remaining three factors." Id. The Turner analysis is used for both as-applied challenges and
for facial challenges. Thornburgh, 409 U.S.at 403-04.
Here, Christians brings an as-applied challenge against Young13 and Mousel. See Doc. 26
^ 147; Doc. 118 at 23-25. Under Federal Rule of Civil Procedure 25(d), this challenge is also
brought against Sullivan and Wasko in their official capacities. The DOC Defendants argue that
Christians' art book falls under SDDOC Policy 1.3.C.8 because it contains nudity. Doc. 99 at 61-
62. Christians notes that this policy has an exception for "nude material that is illustrative of
medical, educational or anthropological content." Doc. 118 at 23 (internal quotation omitted).
The DOC Defendants acknowledge this exception but state that Christians has not raised this
argument until his response to the DOC Defendants' motion for summary judgment. Doc. 128 at
30. They argue that the burden to show that an exception applied was on Christians, as the
language in the exception is not mandatory. Id. (citing Bell v. Young, 2018 WL 3148385, at *33
(D.S.D. June 27, 2018). The full language of the exception states that "published material
containing nudity that is illustrative of medical, educational or anthropological content may be
excluded from this definition." Bell, 2018 WL 3148385,at *7.
In Sisney v. Kaemingk, this Court ruled on both as-applied challenges and a facial
challenge to the policy in question. 468 F. Supp. 3d 1135, 1138 (D.S.D. June 24, 2020). The
defendants in Sisney rejected several items sent to the plaintiff, including an art book titled
Matisse, Picasso, and Modem Art in Paris and reproduction pictures ofMichelangelo's
sculptures and paintings, because they contained nudity. Id. This Court found that "no showing
ha[d] been made that banning [the art book and reproduction pictures] [was] reasonably related
Christians brings this claim against Darin Young, the former SDSP Warden, in his individual
and official capacity. The current SDSP Warden is Dan Sullivan, who is automatically
substituted for Young on the official capacity claim.
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to a legitimate penological objective." Id. at 1142. This Court also found for the plaintiff on the
facial challenge and revised the policy to remove bans on non-explicit nudity or written sexual
content. Id. at 1147. The Eighth Circuit upheld this Court's mling on the as-applied challenge to
the art book and reproduction pictures, finding that "[a]lthough a few of the featured works
include nudity, the defendants have identified none that even arguably depicts its subject lewdly
or as engaged in any actual or simulated sexual acts." Sisney, 15 F.4th at 1193 (internal quotation
omitted). Further, the Eighth Circuit noted that "[c]ommon sense does not suggest, and the
defendants have offered no evidence to prove, a rational connection between banning pictures of
artwork such as Michelangelo's 'David' and legitimate government interests such as security and
rehabilitation." Id. The Eighth Circuit reversed this Court on the facial challenge, ultimately
finding that the policy was not substantially overbroad. Id. at 1199.
This Court finds that the same as-applied analysis applies to Christians' art book. The
DOC Defendants have only argued that the book falls under the SDSP pornography policy and
that "[cjourts have routinely held that there is a rational connection between censoring
pornography and promoting legitimate penological interests." Doc. 99 at 63 (quoting Sisney, 15
F.4th at 1192). But the DOC Defendants cite language from Sisney's ruling on two erotic novels,
not its ruling where it found no legitimate government interest was rationally connected to
banning the works of art in question. See id. at 1192-93. As in the Eighth Circuit's ruling in
Sisney, the DOC Defendants here offer no evidence to prove a rational connection between
banning artwork and legitimate government interests, instead only arguing that the artwork is
pornographic and thus can be censored. See Doc. 99 at 61-69; Doc. 128 at 29-33. Thus, this
Court cannot grant summary judgment to the DOC Defendants on the grounds that they did not
violate Christians' First Amendment rights by rejecting his art book.
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Christians seeks both money damages and injunctive relief in the form of the return or
replacement of his book. Doc. 26 ^139, 154. The DOC Defendants argue that they are entitled
to qualified immunity on Christians' invidivual capacity First Amendment claim for money
damages. Doc. 99 at 67. Christians' art book was rejected on June 15, 2020, nine days before this
Court issued its decision in Sisney. See id. at 61. Christians then submitted an Informal
Resolution Request the following month. Id. In an Administrative Remedy Response dated July
31, 2020, Young informed Christians that pending decisions on the defendants' motion for stay
and "final determination of the issues [in Sisney] on appeal, the status quo will be maintained."
Id. (quoting Doc. 99-153 at 1). Because the Eighth Circuit had not yet mled on Sisney, there was
no "controlling authority" on this issue that clearly established the rule on which Christians seeks
to rely. See Layne, 562 U.S. at 617. Nor has Christians identified a consensus of cases of
persuasive authority on this issue. See id.; Doc. 118 at 23-25.
Further, while the Eighth Circuit's mling in Sisney does indicate that the rejection of
artwork with some incidental nudity may violate the First Amendment, it did so in ruling on an
as-applied challenge to specific collections of art. 15 F.4th at 1193. This Court, in its mling in
Sisney, noted its experience with art galleries and museums to conclude that "[tjhere are very few
of those gallery and museum images and books where a case could be made for a banning based
on the work being sexually explicit^] ... [b]ut all of those images and books are not before the
Court in this as applied analysis." 469 F. Supp. 3d at 1142. In other words, an as-applied
This Court denied defendants' motion for stay in Sisney on August 10, 2020. Sisney v.
Kaemingk, 2020 WL 4582707, at *2 (D.S.D. Aug. 10, 2020). The Eighth Circuit later denied
defendants' motion for a stay on August 27, 2020. Order, Sisney v. Kaemingk, No. 20-2460 (8th
Cir. Aug. 27, 2020). Thus, by declaring that he would wait until final determination of the issues
on appeal. Young was in violation of this Court's denial of a stay and the Eighth Circuit's denial
of a stay, as well as this Court's original ruling.
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challenge requires an "independent review of the evidence[,]" and the results of this review
depend on the specific and unique circumstances of each rejected item. See id. at 1141 (quoting
Murphy v. Mo. Dep 't ofCorr., 372 F.3d 979, 986 (8th Cir. 2004)). Thus, because each as-applied
challenge requires a new review of the evidence, a very high bar must be met to determine that
the outcome of a prior as-applied challenge would clearly establish a mle for a later as-applied
challenge unless the two challenges regarded identical or strikingly similar evidence. Cf. City
Union Mission, Inc., v. Sharp, 36 F.4th 810, 818 n.3 (8th Cir. 2022) (narrowly defining the
question posed by a qualified immunity analysis as "whether there was a clearly established
constitutional right to free exercise within 500 feet of Margaret Kemp Park" rather than the
broader question of whether there was a clearly established constitutional right "to engage in free
exercise of religion within 500 feet of a park with playground equipment" (internal quotation
omitted)).
Here, while Christians' art book may feature nudity similar to that challenged in Sisney,
these are different works of art. See Doc. 127-2; Doc. 127-3. Because Christians' right to receive
the art book in question was not clearly established when Young and Mousel rejected it, Young
and Mousel are entitled to summary judgment on his individual capacity First Amendment claim
for money damages.
The DOC Defendants argue that they have since amended SDDOC Policy 1.3.C.8 to
allow for the viewing of materials containing nudity or sexually explicit conduct in designated
viewing rooms. Doc. 99 at 67-68. They argue that if Christians were to receive another copy of
the art book, he could now view it in a viewing room, but because this policy was not in place at
the time that he first received the art book, that copy was destroyed. Id. at 68-69. Christians
argues that he wants to learn how to paint, which he cannot do in a viewing room. Doc. 118 at
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25. But he can learn to paint by reading and viewing the book in a viewing room, and this
Court finds that to be an adequate remedy.
Because Christians has a sufficient means by which he can pursue his artistic goals, the
Court finds that his official capacity claim for injunctive relief is moot. Thus, summary judgment
is granted as to Christians' claim for injunctive relief against Mousel, Wasko, and Sullivan in
their official capacities.
II. Christians' Motion to Submit a Second Amended Complaint
Christian moved to submit a second amended complaint on November 22, 2021. Doc. 79.
The DOC Defendants filed a response in opposition to Christians' motion, and the Summit
Defendants joined this response. Docs. 87, 92. Thus, this portion of the order will refer to
"defendants" to refer to both sets of defendants as a whole. Under Federal Rule of Civil
Procedure 15(a)(l), "[a] party may amend its pleading once as a matter of course within 21 days
after serving it," or 21 days after service of a responsive pleading or motion. Thereafter, the party
may amend only with the written consent of the opposing party or the court's permission. Fed. R.
Civ. P. 15(a)(2). Because Christians' motion to submit a second amended complaint was filed
more than 21 days after the defendants responded to his complaint and because defendants
oppose his motion, Christians must have leave from the Court to amend. Id. "The court should
freely give leave [to amend] when justice so requires." Id. Even under this generous standard, a
court may deny a request to amend for "compelling reasons such as undue delay, bad faith, or
dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the non-moving party, or futility of the amendment." Sherman v. Winco Fireworks,
15 Some say pastels are drawing, some say painting. This Court draws with pastels.
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Inc., 532 F.3d 709, 715 (8th Cir. 2008) (quoting Moses.corn See., Inc. v. Comprehensive
Software Sys., Inc., 406 F.3d 1052,1065 (8th Cir. 2005)).
"A liberal amendment policy, however, is in no way an absolute right to amend. Where
an amendment would likely result in the burdens of additional discovery and delay to the
proceedings, a court usually does not abuse its discretion in denying leave to amend." Popp
Telcom v. Am. Sharecom, Inc., 210 F.3d 928, 943 (8th Cir. 2000) (internal citation omitted).
"When late tendered amendments involve new theories of recovery and impose additional
discovery requirements, appellate courts are less likely to hold a district court abused its
discretion." Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008) (citation omitted).
Further, a "[djenial of a motion for leave to amend on the basis of futility means the district court
has reached the legal conclusion that the amended complaint could not withstand a motion to
dismiss under Rule 12(b)(6)." Moody v. Vozel, 771 F.3d 1093, 1095 (8th Cir. 2014) (internal
quotation omitted). Under Rule 12(b)(6), a plaintiff must plead "enough facts to state a claim to
relief that is plausible on its face." Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Christians seeks to add additional defendants to his Eighth Amendment inadequate
nutrition claims, to bring new Eighth Amendment inadequate nutrition claims against existing
defendants, and to bring First Amendment retaliation claims against defendants Young,
Christensen, and Stratman. Doc. 83 ^ 127(A)-127(ZZ), 140-142. Defendants argue that these
claims are futile because they would not withstand a motion to dismiss under Rule 12(b)(6). Doc.
87 at 5-12. Further, defendants argue that Christians brought these claims with a dilatory motive
because he could have raised them in his earlier complaint. Id. at 12-13.
A. Dilatory Motive
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Defendants argue that Christians' second amended complaint "was prompted by dilatory
motives" because some of the incidents alleged occurred before Christians filed his first
amended complaint on November 10, 2020. Id. at 12. Defendants cite to a District of Nebraska
case for the proposition that when "a motion to amend a complaint is based on allegedly new
information that the plaintiff knew, or through the exercise of reasonable effort could have
known at an earlier time, the motion should be denied." Doc. 87 at 13 (citing In re Acceptance
Ins. Cos., Inc., Sees. Litig., 352 F. Supp. 2d 928, 933 (D. Neb. 2003)).
In In re Acceptance Insurance Cos., Inc., Securities Litigation, the District Court of
Nebraska examined two Eighth Circuit Court of Appeals cases as a basis for the proposition
stated above. See 352 F. Supp. 2d at 933 (citations omitted). In Floyd v. Missouri Department of
Social Services, Division of Family Services, the Eighth Circuit affirmed the district court's
denial of plaintiff s motion for leave to amend when the plaintiff filed a motion to amend her
complaint more than twenty months after she filed her initial complaint and more than seven
months after defendants filed a motion for summary judgment. 188 F.3d 932, 939 (8th Cir.
1999). In Svoboda v. Trane Co., "appellant inexplicably sought leave to amend in order to
introduce new theories of liability on the eve of trial, nearly a year after the complaint had been
filed." Svoboda v. Trane Co., 655 F.2d 898, 900 (8th Cir. 1981) (per curiam) (footnote omitted).
Further, the Eighth Circuit found evidence of undue delay and prejudice because the defendant
had already conducted extensive discovery. Id. (citation omitted). The In re Acceptance
Insurance Cos., Inc., Securities Litigation court concluded that "delay alone is an insufficient
basis upon which to deny a motion to amend" and considered unfair prejudice, bad faith, and
futility in its analysis.
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Here, Christians filed his motion to amend one year after filing his first amended
complaint, but because CMstians was unable to identify and serve one defendant who was
ultimately dismissed, the DOC defendants did not answer Christians' first amended complaint
until October 1, 2021. See Docs. 69, 70. Christians filed his second motion to amend on
November 22, 2021. Doc. 79. Defendants had not yet filed their motion for summary judgment
at that time. See Doc. 98. Although defendants are correct that some of the claims asserted in the
second amended complaint are based on information Christians knew or should have known
prior to filing his first amended complaint, defendants make no argument regarding unfair
prejudice or bad faith. See Doc. 87 at 12-13. Instead, they only argue that Christians should be
precluded from asserting claims regarding conduct that occurred before he filed his first
amended complaint. Id, Christians argues that he filed the second amended complaint after
repeated communication with DOC officials in an attempt to resolve the alleged issues through
the prison grievance process. Doc. 93 at 1-2. He claims that he prepared and filed his second
amended complaint after being told that "there was nothing that would remove [his disciplinary
infraction] from his prison record" at the end of October 2021. Id. at 1. Thus, because defendants
have made no showing of unfair prejudice or bad faith, this Court will not deny Christians'
motion to amend based on the delay alone.
B. Futility of Claims
1. Eighth Amendment Inadequate Nutrition Claims
a. Claims Against New Defendants
Christians seeks to bring an Eighth Amendment inadequate nutrition claim against
Pechous, Genie Birch, Greasman, Dawn Alumbaugh, Bametche, Marjama, Winters, Padilla,
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Mullins, Hulscher, Driskie,16 Becker, Hettig, Sorenson, and Perret, all of whom are SD DOC
employees. Doc. 83 ^ 32(A)-(H). He also seeks to bring an Eighth Amendment inadequate
nutrition claim against Beth, who is a Summit supervisor, and against Summit Food Service. Id.
THf 32(I)-(J). He sues all defendants in their individual and official capacities. Id. ^ 32(K).
Christians' allegations are largely that he informed the proposed defendants that his meals were
missing items, spoiled, too small, or otherwise inadequate, and that the proposed defendants
failed to rectify the issue. See id. ^ 127(A)-(ZZ).
Defendants argue that the proposed defendants did not possess the authority to alter
Christians' meal plan and were not involved with the food served to him because Summit Foods
provides all meals to inmates. Doc. 87 at 8-9. They argue that all menus are created by the
registered dietician employed by Summit Foods. Id. at 8. Further, they note that Christians
acknowledges being told by individual proposed defendants that they "could do nothing" about
his food issues. Id. at 7 (quoting Doc. 83 ^ 127(K), (DD)).
Christians argues that while Summit Foods is responsible for designing menus, prison
officials, including the proposed defendants, "are responsible for assuring the menu that is in
place is adhered to." Doc. 93 at 4. He argues that he was held in the Segregated Housing Unit,
where he had no ability to bring food complaints to Summit Foods staff. Id. at 3-4. He argues
that the proposed defendants, who were responsible for bringing him food while he was in
Segregated Housing, "ha[d] access to menus and could easily verify food trays for correctness
16 Christians brings a claim against Driskie, a former deputy warden at SDSP, in his or her
individual and official capacity. Under Rule 25(d), Driskie's successor is automatically
substituted as a party for Christians' official capacity claim. But Christians does not identify
Driskie's successor, and his official capacity claims against other defendants remain to provide
injunctive relief. Thus, Christians' claim against Driskie in his or her official capacity is
dismissed.
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when complaints are made." Id. at 3. He also notes that he did not name as proposed defendants
the officials who attempted to rectify his food issues, only those that he alleges refused to
attempt to address the issues. Id.
Christians alleges facts sufficient to state a claim for violation of his Eighth Amendment
rights against the proposed defendants. He alleges that he repeatedly received portions that were
missing items, contained spoiled or rotten food, or were otherwise insufficient. See Doc. 83
^ 127(A)-(ZZ). The Court finds that these new claims are akin to those that survived the
screening of Christians' first amended complaint. See Doc. 27 at 9-11. Thus, Christians' Eighth
Amendment claims against new defendants are not futile except for his official capacity claim
against Driskie.
b. New Claims Against Dismissed Defendants
Christians seeks to bring new Eighth Amendment inadequate nutrition claims against
Marlin C. Sejonha, Justin Barthel, Shane Sejonha, Naomi McLaughlin, and Jeff Green,
defendants who were previously dismissed from this case because they were not personally
involved in and not aware of the alleged deprivations. See Doc. 54 at 6-7; Doc. 83 ^ 127(XX)-
(YY). These five defendants are Summit executives who Christians argued "[could not] be mled
out until after their depths of involvement [are] discovered." Doc. 26 ^<| 20-22, 26-27, 126. This
Court found that Christian "only presented] an abstract possibility" that these defendants were
personally involved. Doc. 83 at 7.
In his second amended complaint, Christians alleges that Summit executives, including
the five dismissed defendants, visited the South Dakota State Penitentiary in May 2020 to "see
the day-to-day operations first hand." Doc. 83 ^ 127(XX). Christians argues that this visit made
these defendants "aware of the substandard nutrition and diet, the unsanitary kitchen practices
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and lack of properly trained kitchen workers resulting in the poor quality meals." Id. He also
alleges that Marlin C. Sejonha signed the food contract between the South Dakota DOC and
Summit and that this contract requires Summit to follow USDA guidelines. Id. ^ 127(YY).
These allegations alone are not sufficient to state a claim for deliberate indifference. To
show deliberate indifference, an inmate must demonstrate that a defendant knew the "inmate []
face [d] a substantial risk of serious harm and disregarded] that risk by failing to take reasonable
measures to abate it." Farmer, 511 U.S. at 847; see also Coleman, 114 F.3d at 786.
"[Constructive knowledge, or the 'should-have-known' standard, is not sufficient to support a
finding of deliberate indifference [.]" Spruce v. Sargent, 149 F.3d 783, 786 (8th Cir. 1998).
Christians makes no showing that these defendants knew he faced a risk of harm because of food
issues at SDSP. At most, Christians argues that these defendants should have been aware of these
issues, which is insufficient under Spruce. Thus, Christians' Eighth Amendment claims against
the previously dismissed defendants are futile.
2. First Amendment Retaliation Claims
Christians seeks to bring First Amendment retaliation claims against Young, Christensen,
and Stratman, all of whom are currently defendants to this lawsuit. Doc. 83 ^ 127(CC),
127(FF), 140-142. Christians seeks money damages for this claim. Id. ^ 155. He sues
Christensen and Stratman in their individual and official capacities. Young in his individual
capacity, and Sullivan in his official capacity. See Doc. 83 ^ 35.
The Supreme Court has stated, "a suit against a state official in his or her official capacity
is not a suit against the official but rather is a suit against the official's office." Will v. Mich.
Dep't of State Police, 491 U.S. 58, 71 (1989) (citing Brandon v. Holt, 469 U.S. 464, 471 (1985)).
Christians seeks monetary damages for his First Amendment retaliation claims. Doc. 26 ^ 152-
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55. The Eleventh Amendment generally acts as a bar to suits against a state for money damages
unless the state has waived its sovereign immunity. Will, 491 U.S. at 66 (citation omitted). But
when an official capacity claim is asserted for injunctive relief against a state officer, the defense
of qualified immunity does not apply. See Pearson v. Callahan, 555 U.S.223,242-43 (2009).
Because the state of South Dakota has not waived its sovereign immunity and because Christians
seeks monetary damages, all claims against Christensen, Stratman, and Sullivan in their official
capacities for monetary damages would not survive a motion to dismiss under Rule 12(b)(6) and
are thus futile.
Christians brings First Amendment retaliation claims against Young, Christensen, and
Stratman in their individual capacities for money damages. In order for a plaintiff to allege a
First Amendment retaliation claim, he must show that "(I) he engaged in a protected activity, (2)
the government official took adverse action against him that would chill a person of ordinary
firmness from continuing in the activity, and (3) the adverse action was motivated at least in part
by the exercise of the protected activity." Spencer v. Jackson County, 738 F.3d 907, 911 (8th Cir.
2013) (quoting Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004)).
Christians alleges that Young, Christensen, and Stratman retaliated against him for filing
grievances regarding the food at the State Penitentiary. Doc. 83 ^ 127(CC), 127(FF), 140-142.
Specifically, he alleges that Young threatened to have him transferred to a more violent prison
and that Christensen and Stratman stole paperwork he needed for his lawsuit and grievances,
falsely claimed that he assaulted them, and falsely accused him of organizing a hunger strike. Id.
Thus, taking Christians' allegations as true, Christians clearly satisfies the first prong of a First
Amendment retaliation claim because "[t]he filing of a prison grievance, like the filing of an
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inmate lawsuit, is protected First Amendment activity." Lewis v. Jacks, 486 F.3d 1025, 1029 (8th
Cir. 2007) (citing Dixon v. Brown, 38 F.3d 379, 379 (8th Cir. 1994)).
For Christians to satisfy the second prong of a First Amendment retaliation claim, he
must demonstrate both that Young, Christensen, and Stratman took an adverse action toward him
and that the alleged adverse action "would chill a person of ordinary firmness from continuing in
the activity[.]" Spencer, 738 F.3d at 911 (quoting ^eve^, 382 F.3d at 876); see also Lewis, 486
F.3d at 1029 (holding in a First Amendment retaliation claim that the record contained
insufficient evidence that increasing the prisoner's work load would chill a prisoner of ordinary
firmness from using the prison grievance process). "The ordinary-firmness test is well
established in the case law, and is designed to weed out trivial matters from those deserving the
time of the courts as real and substantial violations of the First Amendment." Santiago v. Blair,
707 F.3d 984, 992 (8th Cir. 2013) (quoting Garcia v. City of Trenton, 348 F.3d 726, 728 (8th Cir.
2003)). This is an objective test that looks at whether a reasonable prisoner's actions would be
chilled by an official's alleged adverse actions. See id. (citing Garcia, 348 F.3d at 729).
Here, Christians has alleged sufficient facts to show that a prisoner of ordinary firmness
would have been "chilled" from using the grievance procedure and asserting an inmate lawsuit.
As to Christians' claim against Young, defendants argue that Young never attempted to carry out
the alleged threat nor took any affirmative action suggesting that he would act on it, and thus
Young's conduct did not constitute adverse action. Doc. 87 at 11-12. Defendants cite to several
cases from other district courts not in the Eighth Circuit for the proposition that an isolated
threat, without more, does not adversely affect an inmate. Id. at 11 (citations omitted). One such
case cited by defendants, McKinney v. Rutenbar, explains that "although the Sixth Circuit has
indicated that some threats can rise to the level of an adverse action in some circumstances, it has
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not held, and it is not clearly established, that a threat of prison transfer or job termination,
standing alone, is sufficiently adverse to constitute prohibited retaliation." See 2016 WL
4144253, at *2 (W.D. Mich. Aug. 4, 2016) (internal citations omitted). But the exceptions
described by the McKinney court suggest that threats of transfer for the purpose of worsening an
inmate's circumstances or living conditions may adversely affect an inmate. See id. (citing
Pasley v. Conerly, 345 F. App'x 981, 985 (6th Cir. 2009)). Here, Ch-istians alleges that Young
twice threatened to transfer him to a more violent prison. Doc. 83 ^ 127(CC), (FF). Defendants
do not argue that Christians' allegations against Christensen and Stratman are futile, only that
they are prompted by dilatory motives. See Doc. 87 at 12. Thus, Christians satisfies the second
prong of a First Amendment retaliation claim.
To satisfy the third prong, Christians must show that "the adverse action was motivated at
least in part by the exercise of the protected activity." Spencer, 738 F.3d at 911 (quoting Revels,
382 F.3d at 876). Here, Christians alleges sufficient facts to meet the third prong. He claims that
Young threatened to transfer him because he had been filing food grievances and that
Christensen and Stratman falsely brought disciplinary charges against him in because of his food
grievances. Id. ^ 127(CC), 127(FF), 140-141. Thus, Christians has alleged facts to show that
Young, Christensen, and Stratman violated his First Amendment right to be free from retaliation.
Christians is granted leave to amend his complaint to add new defendants to his Eighth
Amendment inadequate nutrition claims, except for his official capacity claim against Driskie,
and to bring new First Amendment retaliation claims against Young, Christensen, and Stratman
in their individual capacities. Christians is denied leave to bring Eighth Amendment inadequate
nutrition claims against the previously dismissed Summit defendants and new First Amendment
retaliation claims against Christensen, Stratman, and Sullivan in their official capacities.
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III. Christians' Objection to This Court's Order Dismissing Complaint Against
Lieutenant Maddox
On September 27, 2021, this Court found that Christians failed to state a claim against
defendant Lieutenant Maddox and dismissed Maddox from this case. Doc. 69 at 4. Specifically,
this Court found that Christians made no mention ofMaddox in his complaint. Id. at 3-4.
Christians filed an objection in response to this order, arguing that Maddox was mentioned in
one paragraph of his complaint. Doc. 75 at 1 (citing Doc. 26 ^ 94). Christians is correct that his
complaint alleges that "Maddox did not allow pictures [of food] prompting [a] grievance." See
Doc. 26 ^ 94. But this is the only allegation contained in his complaint regarding Maddox.See
id. Christians argues that further claims regarding Maddox were contained in the evidence he
submitted along with his original complaint and that Maddox failed to correct obvious issues
with food trays. Doc. 75 at 1. Christians does not indicate where in the record these allegations
are contained, and this Court will not pore over the extensive record to find this information.
Christians' objection. Doc. 75, is overruled.
IV. Discovery Issues
Christians has filed a motion to compel Summit Food Service to provide the address of
defendant Kevin Trienveiler and a motion to compel the DOC and Summit to provide discovery
documents, and the DOC Defendants have filed a motion for a protective order staying discovery
pending the resolution of their motion to dismiss on qualified immunity grounds. Docs. 76, 80,
89. Summit opposes Christians' first motion to compel, the DOC Defendants oppose Christians'
second motion to compel, and Christians opposes the DOC Defendants' motion for protective
order. Docs. 82, 86, 107. Christians has also filed a motion asking this Court for an order
allowing him to contact other inmates for affidavits or declarations. Doc. 81. Defendants have
not opposed this motion. Because this Court has denied in part and granted in part the DOC
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Defendants' motion for summary judgment, the DOC Defendants' motion for protective order,
Doc. 89, is denied as moot.
A. Christians' First IVIotion to Compel
Christians has filed a motion to compel Summit Food Service to provide the address of
defendant Kevin Trierweiler, a former employee of Summit, so that Christians can have Kevin
Trierweiler served. Doc. 76. Christians argues that he wrote a letter to Summit on May 20,2021,
asking for Kevin Trierweiler's information and that Kevin Trierweiler's brother, John
Trierweiler, still works for Summit. Id. at 1. The Summit Defendants argue that Christians failed
to confer with them as required by Federal Rule of Civil Procedure 37(a)(l). Doc. 82 at 2-3.
They argue that this motion is premature because Christians filed it on November 3, 2021, a
week before discovery began and before Christians served any discovery on them. Id. at 3. The
Summit Defendants further argue that their discovery obligations do not extend to the addresses
of former employees if those employees "have no knowledge or discoverable information
regarding the allegations contained within the Complaint." Id. (citing Fed. R. Civ. P.
26(l)(A)(i)). Christians argues that it would be easy for the Summit Defendants to find and
provide Kevin Trierweiler's contact information. Doc. 84 at 1-2.
Defendants are correct that Christians' motion to compel is premature. A party may file a
motion to compel disclosure or discovery after the party "has in good faith conferred or
attempted to confer with the person or party failing to make disclosure or discovery in an effort
to obtain it without court action." Fed. R. Civ. P. 37(a)(l); see also D.S.D. Civ. LR 37.1 ("A
party filing a motion concerning a discovery dispute must file a separate certification describing
the good faith efforts of the parties to resolve the dispute."). Christians' letter on May 10, 2021,
was sent well in advance of discovery, as the initial scheduling order in this case was issued on
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November 10, 2021, and thus Christians' letter could not itself be discovery or an effort to confer
regarding a discovery dispute. See Doc. 76 at 1; Doc. 78. Further, Christians has shown an ability
to conduct discovery in accordance with the federal rules. See Doc. 118 at 34-39 (The Summit
Defendants' responses to Christians' second set of written discovery). Thus, Christians' first
motion to compel. Doc. 76, is denied.
B. Christians' Second Motion to Compel
Christians has filed a motion to compel Summit Food Service and the DOC to provide
menus, nutritional analysis reports, food nutrition labels, and manuals from the American
Dietetic Association and the American Diabetes Association. Doc. 80 at 1-2. The DOC
Defendants oppose this motion, arguing that Christians has failed to submit a formal request for
production of documents under Federal Rule of Civil Procedure 34, has failed to confer with
opposing parties as required by Rule 37(a)(l), that the menus in question are not discoverable,
and that they are not in possession of the manuals requested. Doc. 86 at 4-8. Christians argues
that he has made several attempts to request these materials and that defendants have either
denied these requests or failed to respond. Doc. 94 at 1. The Summit Defendants have not
responded to this motion.
Christians filed this motion twelve days after this Court's scheduling order. See Docs. 78,
80. Although Christians alleged in his motion that he repeatedly attempted to contact defendants,
these attempts were made before or at the very start of discovery and were thus premature.
Again, the party moving for an order compelling discovery must make a good faith effort to
confer with the party failing to provide discovery and also must file a certification describing
those efforts. Fed. R. Civ. P. 37(a)(l); D.S.D. Civ. LR 37.1. The DOC Defendants are also
correct that documents they do not possess, such as the manuals requested by Christians, are not
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subject to discovery. See Fed. R. Civ. P. 34(a)(l) (limiting requests for production of documents
to "the following items in the responding party' s possession, custody, or control" (emphasis
added)).
The DOC Defendants cite to Cody v. CBM Correctional Food Services, 2005 WL
3018694, at *7 (D.S.D. Nov. 9, 2005), and Rogers v. Scurr, 676 F.2d 1211, 1213 (8th Cir. 1982)
for the proposition that prison menus are not subject to discovery. Doc. 86 at 5-6. The plaintiff in
Cody, a diabetic with hypertension, was provided a special diet with daily prepared menus. Cody,
2005 WL 3018694, at * 1. Although he was promised that he could access these menus, a prison
official later notified him that he would not be provided copies. Id. The plaintiff then argued that
prison officials' failure to provide menus after promising to do was a violation of his civil rights,
and the court rejected this claim. Id. at *7. In Rogers, the Eighth Circuit reversed a district
court's granting ofinjunctive relief to Muslim inmates who claimed that prison officials violated
their right to exercise their religion. 676 F.2d at 1211. The Eighth Circuit found that the district
court granted injunctive relief without finding any constitutional or statutory deprivation and
that, without a "presently existing actual threat" to the plaintiffs' rights, no injunction should
have been granted. Id. at 1214 (quoting Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d 614,
618 (3d Cir. 1969)). One form ofinjunctive relief that was granted by the district court and
reversed by the Eighth Circuit was access to a pork-free diet line or a daily menu that included
the pork content of food items served along with a requirement that non-pork items be sufficient
for nutrition. Id. at 1213. Neither Cody nor Rogers touched on whether prison menus are shielded
from discovery.
The DOC Defendants also cite to Gard v. Dooley, arguing that the menus in question
would not be relevant to Christians' claims. Doc. 86 at 6 (citing Gardv. Dooley, 2017 WL
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782279,at *8 (D.S.D.Feb. 28, 2017)), In Card, this Court denied the plaintiffs motion to
compel defendants to provide "[a] copy of all CBM Food Service menus that contain diabetic
menus from January 1, 2010, to present." 2017 WL 782279, at *7. The plaintiff in Card stated
that he wanted the requested menus to show that he did not receive his prescribed diabetic diet.
Id. This Court denied the plaintiffs motion to compel because the plaintiff made no showing of
how the documents he requested were relevant to the question of whether he received his
prescribed diabetic diet. Id. at * 8.
Here, because Christians argues both that he does not receive the correct amount of food
as indicated by daily menus and that the menus are insufficiently nutritious even when followed,
menus may be relevant to Christians' claims, provided that his requests fall within the scope of
discovery as described in Federal Rule of Civil Procedure 26(b)(l). Although Christians' second
motion to compel, Doc. 80, is denied, this Court notes that none of the cases cited by the DOC
Defendants suggest that prison menus are not subject to discovery as a matter of law.
C. Christians' Motion for Order That Plaintiff May Contact Other Inmates to
Collect Affidavits or Declarations
Christians asks this Court for an order allowing him to visit with and collect affidavits or
declarations from Craig Returns From Scout, Daniel Augustine, and Kevin Brown. Doc. 81 at 1.
Christians alleges that these inmates have informed him that they have information regarding
Summit's kitchen practices, including Summit's changing of expiration dates on food products
and Summit's use ofrancid meat. Id. Christians states that his requests for inmate-to-inmate
correspondence were rejected by prison officials. Id. The DOC Defendants have not responded
to this motion.
This Court finds that Christians has made a showing that the three inmates in question
may have information that falls under the scope of discovery as described in Rule 26(b)(l). This
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Court also recognizes that that "prison officials ordinarily must have wide latitude within which
to make appropriate limitations." Rogers, 676 F.2d at 1215. Thus, Christians' motion for an
order allowing him to collect affidavits or declarations from Returns From Scout, Augustine, and
Brown, Doc. 81, is granted, but discretion as to how to allow Christians to collect affidavits or
declarations is left to SDSP, who shall do so in a manner that does not interfere with SDSP
operations.
V. Motion for Appointment of Counsel
Christians moves for appointment of counsel. Doc. 77. He argues that he cannot
investigate the facts and conduct discovery from prison, that counsel will help "limit litigation to
potentially meritorious issues[,]" and that counsel will help him identify unknown defendants
and locate defendants for whom he cannot find contact information. Id. at 1-2. "A pro se litigant
has no statutory or constitutional right to have counsel appointed in a civil case." Stevens v.
Redwing, 146 F.3d 538, 546 (8th Cir. 1998). Under 28 U.S.C. § 1915(e)(l), "[t]he court may
request an attorney to represent any person unable to afford counsel." District courts may appoint
counsel, and the Eighth Circuit has acknowledged the "express authority of the district court to
make such appointments." Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir.
1984) (citations omitted). "[T]he appointment of counsel should be given serious consideration
by the district court if the plaintiff has not alleged a frivolous or malicious claim." Id. at 1005.
Factual complexity is not the only factor that a district court considers whether
appointment of counsel is appropriate. Johnson v. Williams, 788 F.2d 1319, 1322 (8th Cir. 1986)
(citation omitted). The Eighth Circuit considers "the factual complexity of the case, the ability of
the indigent to investigate the facts, the existence of conflicting testimony, the ability of the
indigent to present his claim and the complexity of the legal issues." Abdullah v. Gunter, 949
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F.2d 1032, 1035 (8th Cir. 1991) (citing Johnson, 788 F.2d at 1322-23). Christians' second
amended complaint, briefs in opposition to defendants' motions for summary judgment,
responses to defendants' statements of undisputed material facts, and ability to serve discovery
all show that he capable of litigating his claims to this Court. Thus, Christians' motion for
appointment of counsel, Doc. 77, is denied. The Court remains open to the possibility of
appointing counsel if this case proceeds beyond the motions stage. It is one thing to well
represent one's position on paper to the court, and it is yet another to be able to adequately try a
case to a jury.
VI. Motion for Expert
Christians asks this Court to appoint an independent nutrition expert to "combat defense
exhibits of nutrition reports" and to show "the errors and bias in those reports." Doc. 110 at 1.
The DOC Defendants oppose this motion, arguing that while the Court can appoint an expert
under Federal Rule of Evidence 706, this is not the exceptional case that justifies an expert. Doc.
115 at 4. They further argue that an expert appointed under Rule 706 is to assist the factfmding
of the Court and should not be appointed for the benefit of one party. Id. at 4-5.
Although this Court granted Christians leave to proceed in forma pauperis under 28 U.S.C.
§ 1915, Doc. 18, this "does not provide for the appointment of expert witnesses to aid an indigent
litigant." Dale v. Dooley, 2015 WL 224969, at *4 (D.S.D. Jan. 15, 2015) (quoting Hannah v.
United States, 523 F.3d 597, 601 (5th Cir. 2008)). "A court may appoint an expert for indigent
prisoners under ... Rule 706(a), but this purpose is to 'assist the trier of fact from a position of
neutrality, not to serve as an advocate.' " Johnson v. Kaemingk, 2020 WL 376589, at *1 (D.S.D.
Jan. 23, 2020) (quoting Dale, 2015 WL 224969,at *4).
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At this time, there is no need for an expert to assist the trier of fact as this case is still in the
motions stage. Further, after review of the motion, the questions Christians proposes to have the
expert answer are positioned to serve Christians as an advocate. While an expert may ultimately
be necessary in this case, an expert is not necessary at this time. Christians' motion for expert,
Doc. 110, is denied.
VII. Motion to Seal
The DOC Defendants have filed a motion to seal copies of some of the nude images
contained in Christians' art book that have been submitted as evidence. Doc. 127. The DOC
Defendants argue that if the submitted images were served on Christians, he would receive
copies of the materials that SDSP refused to provide him and would effectively circumvent DOC
policy. Id. at 4. They argue that this Court should conduct an in-camera inspection of the images
under seal in order to prevent Christians from "evad[ing] security restrictions by the simple
expedient of filing suits and obtaining prohibited materials through discovery." Id. at 5 (quoting
Lindell v. McCaughtry, 115 F. App'x 872, 876 (7th Cir. 2004)). Christians has not responded to
this motion. This Court recognizes the concerns raised in this motion and agrees that these
images can be reviewed in camera. The DOC Defendants' motion to seal, Doc. 127, is granted.
VIII. Motion to Extend Discovery
The Summit Defendants filed a motion to extend discovery on May 24, 2022. Doc. 132.
Specifically, they seek to extend the discovery completion deadline until September 18, 2022,
without extending any other deadlines in this case. Id. ^ 11. Christians opposes this motion as
untimely, although it was filed before the most recent motions deadline of June 30, 2022. See
Doc. 133 at 1; Doc. 125. The Summit Defendants argue that an extension of this deadline will
allow for further discovery after this Court rules on their pending motion for summary judgment.
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Id. Tf 12. But the proposed deadline of September 18, 2022, has passed. Thus, the Summit
Defendants' motion to extend discovery, Doc. 132, is denied as moot. If further discovery is
needed after this Court mles on the Summit Defendants' motion for summary judgment, the
parties can address that issue at that time.
Accordingly, it is
ORDERED:
1. That the DOC Defendants' motion for summary judgment, Doc. 98, is granted on the
following Eighth Amendment inadequate nutrition claims issues: that Christians' diet
caused him to be at higher risk of diabetes, higher risk of high blood pressure, and
higher risk of loss ofthyroid function; and that his diet caused fainting spells and
dizziness, fatigue, insomnia, frequent urination, frequent bowel movements, and high
cholesterol.
2. That the DOC Defendants' motion for summary judgment. Doc. 98, is granted on
Christians' First Amendment claim.
3. That the DOC Defendants' motion for summary judgment, Doc. 98, is otherwise
denied.
4. That Christians' motion to submit a second amended complaint, Doc. 79, is granted
as to his new Eighth Amendment inadequate nutrition claims against Pechous, Genie
Birch, Greasman, Dawn Alumbaugh, Bametche, Marjama, Winters, Padilla, Mullins,
Hulscher, Becker, Hettig, Sorenson, Ferret, Beth, and Summit Food Services in their
individual capacities and in their official capacities for injunctive relief.
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5. That Christians' motion to submit a second amended complaint, Doc. 79, is granted
as to his new Eighth Amendment inadequate nutrition claims against Driskie in his or
her individual capacity only.
6. That Christians' motion to submit a second amended complaint, Doc. 79, is granted
as to his new First Amendment retaliation claims against Young, Christensen, and
Stratman in their individual capacities.
7. That Christians' motion to submit a second amended complaint, Doc. 79, is otherwise
denied.
8. The Clerk shall send blank summons forms and Marshal Service Form (Form USM-
285) to Christians so that he may cause the complaint to be served upon defendants
Pechous, Birch, Greasman, Alumbaugh, Bametche, Marjama, Winters, Padilla,
Mullins, Hulscher, Becker, Hettig, Sorenson, Perret, Beth, and Summit Food
Services.
9. Christians shall complete and send the Clerk of Courts a separate summons and
USM-285 form for each new defendant. Upon receipt of the completed summons and
USM-285 forms, the Clerk of Court will issue the summons. If the completed
summons and USM-285 form are not submitted as directed, the complaint may be
dismissed.
10. The United States Marshal Service shall serve the completed summonses, together
with a copy of the Second Amended Complaint, Doc. 83, and this order, upon the
new defendants.
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11. The new defendants will serve and file an answer or responsive pleading to the
amended complaint on or before 21 days following the date of service or 60 days if
the new defendants fall under Fed. R. Civ. P. 12(a)(2) or (3).
12. Christians 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.
13. That Christians' objection to this Court's order dismissing complaint against
Lieutenant Maddox, Doc. 75, is overruled.
14. That the DOC Defendants' motion for protective order. Doc. 89, is denied as moot.
15. That Christians' first motion to compel. Doc. 76, is denied.
16. That Christians' second motion to compel, Doc. 80, is denied.
17. That Christians' motion for order that plaintiff may contact other inmates to collect
affidavits or declarations. Doc. 81, is granted.
18. That Christians' motion for appointment of counsel, Doc. 77, is denied.
19. That Christians' motion for expert, Doc. 110, is denied.
20. That the DOC Defendants' motion to seal, Doc. 127, is granted.
21. That the Summit Defendants' motion to extend discovery, Doc. 132, is denied as
moot.
22. That Christians' motion for time extension to reply to motion for summary judgment,
Doc. 112, is denied as moot.
23. That Christians' motion to delay summary judgment. Doc. 113, is denied as moot.
24. That Christians' motion in opposition to summary judgment. Doc. 117, is denied as
moot.
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25. That Christians' motion in opposition to modify scheduling order, Doc. 133, is denied
as moot.
DATED September
ATTEST:
MAT1
^^ 2022.
BY THE COU
iv^si^
.awrence L. Piersol
United States District Judge
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