McPeek v. Meyers et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
TRAVIS R. MCPEEK,
Plaintiff,
vs.
CO MEYERS,CORRECTIONAL OFFICER AT
MIKE DURFEE STATE PRISON, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
CO LUCERO, CORRECTIONAL OFFICER
AT MIKE DURFEE STATE PRISON, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
UM KLIMEK, EAST CRAWFORD UNIT
MANAGER AT MIKE DURFEE STATE
PRISON, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; LT. DYKSTRA,
OFFICER AT MIKE DURFEE STATE
PRISON, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; UNKNOWN MAIL
ROOM OFFICER(S), CORRECTIONAL
OFFIER(S) AT MIKE DURFEE STATE
PRISON, IN HIS/HER INDIVIDUAL AND
OFFICIAL CAPACITY; WARDEN BRENT
FLUKE, WARDEN AT MIKE DURFEE
STATE PRISON, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; UC KELLY
TJEERDSMA, EAST CRAWFORD UNIT
COORDINATOR/OFFICER AT MIKE
DURFEE STATE PRISON, IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
CO LIVINGSTON, CORRECTIONAL
OFFICER AT MIKE DURFEE STATE
PRISON, IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; DEPUTY WARDEN
SCHIEFFER, DEPUTY WARDEN AT MIKE
DURFEE STATE PRISON, IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
WARDEN ROBERT DOOLEY, WARDEN AT
4:20-CV-04078-RAL
OPINION AND ORDER GRANTING
DEFENDANT MARK PAYER'S MOTION
FOR SUMMARY JUDGMENT
I
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MIKE DURFEE STATE PRISON IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
UNKOWN PROPERTY OFFICER,
CORRECTIONAL OFFICER AT MIKE
DURFEE STATE PRISON, IN HIS/HER
INDIVIDUAL AND OFFICIAL CAPACITY;
SD BOARD OF PARDONS AND PAROLEES,
CORRECTIONAL OFFICER(S)/SOUTH
DAKOTA BOARD MEMBER(S) AT SOUTH
DAKOTA DEPARTMENT OF
CORRECTIONS, IN THEIR INDIVIDUAL
AND OFFICIAL CAPACITY; WARDEN
DARIN YOUNG, WARDEN AT THE &
;QUOT;HILL«" AND/OR SIOUX
FALLS PRISON, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; LISA ROTHSCHADL,
COUNTY ATTORNEY AT BON HOMME
COUNTY, SD, IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; MARK PAYER, JAIL
ADMINISTRATOR/OFFICER AT YANKTON
COUNTY JAIL, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; GLEN ENG, JUDGE
AT BON HOMME COUNTY COURTHOUSE,
IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY; AND KELLY YOUNG, POLICE
OFFICER AT TYNDALL POLICE
DEPARTMENT, IN HER INDIVIDUAL AND
OFFICIAL CAPACITY;
Defendants.
In 2017, Plaintiff Travis McPeek sued Yankton County Jail Administrator Mark Payer and
other individuals under 42 U.S.C. § 1983. McPeek ultimately settled his 2017 case, signing a
Release of his claims against Payer and others in exchange for money. MePeek filed this case in
2020, again naming Payer as a defendant. MePeek alleges that Payer violated his right to access
the courts by revoking his law library privileges in June 2017. Payer now moves for summary
judgment, arguing that the Release McPeek signed bars him from bringing this claim. This Court
agrees and thus grants Payer's motion for summary judgment.
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I. Facts^
A South Dakota grand jury indicted McPeek in August 2016 for the aggravated assault of
a law enforeement officer. Doc. 58-1; Doc. 59 at 1—2. McPeek was not arrested until late
December 2016, when police found him in Phoenix, Arizona. Doc. 59 at ^13; Doc. 58-2 at 2. Law
enforcement shot McPeek with rubber bullets during the arrest, causing him injuries and requiring
that he be hospitalized for a day. 17-4015-RAL,^ Doc.74 at 2-3; Doc. 52-1 at 3-4. McPeek began
his extradition baek to South Dakota in early January 2017. Doc. 59 at 4-5. He arrived at the
Yankton County Jail on January 27, 2017, and remained there until June 14, 2017. Doc. 59 at
6-7. A jury ultimately convicted MePeek oftwo eounts ofaggravated assault ofa law enforcement
officer, and a judge senteneed him to twenty-five years in the state penitentiary. Doc. 59 at 8-
9.
In February 2017, MePeek filed a § 1983 eomplaint in this Court alleging that he had been
mistreated while being transported from Arizona to South Dakota. 17-4015-RAL, Doc. 1. He
filed an amended complaint in March 2017,this time naming Payer as a defendant. 17-4015-RAL,
Doc. 8. McPeek alleged that officers at the Yankton Coimty Jail were deliberately indifferent to
'Payer complied with Rule 56.1(A) of this Court's Local Rules by filing a statement of material
facts along with his motion for summary judgment. Doc. 59. Local Rule 56.1(B) required
McPeek,the party opposing Payer's motion for summary judgment,to "respond to each numbered
paragraph in the moving party's statement of material faets with a separately numbered response
and appropriate eitations to the record." D.S.D. Civ. LR 56.1(B); see also Fed. R. Civ. P. 56(e)(2)
(saying that the eourt can consider a faet undisputed when a party "fails to properly address another
party's assertion of fact as required by Rule 56(c)"). A failure to respond to the moving party's
statement of material facts results in those facts being deemed admitted. D.S.D. Civ. LR 56.1(D).
McPeek did not file an appropriate response under Local Rule 56.1(B) to Payer's statement of
undisputed material facts. See Doe. 63. Rather, he filed a brief saying that he does not dispute
Payer's statement of undisputed material faets "exeept for the language contained in the Release
of all Claims listed in [ffl 16 and 17." Doe. 63 at 1. This Court thus draws the facts from Payer's
statement of undisputed material faets as well as from the reeord in McPeek's 2017 case.
^Filings from McPeek's 2017 case are eited with the civil case number followed by the docket
number, e.g. 17-4015-RAL, Doc. —.
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his serious medical needs and unlawfully placed him in segregation. 17-4015-RAL, Doc. 8; Doc.
9. The March 2017 amended complaint also cited to Payer's response to a grievance and alleged
that this response showed that McPeek "does not have adequate access to law library and further
supports his request for counsel." 17-4015-RAL, Doc. 8 at 24-25.
On June 9, 2017, McPeek filed a motion to compel the Yankton County Jail to give him
access to the law library. 17-4015-RAL, Doc. 28. McPeek alleged that Payer had told the Bon
Homme County State's Attorney that McPeek had a lawyer in his state criminal case and therefore
no longer needed access to the law library. 17-4015-RAL, Doc. 28. McPeek claimed that the
State's Attorney filed a motion to deny him access to the law library, and that, during a June 6,
2017 hearing, a state judge granted this motion even though McPeek's attorney argued that
McPeek had several civil cases where he was proceeding pro se. 17-4015-RAL, Doc. 28.
According to McPeek, Payer denied McPeek access to the law library to gain an advantage in
McPeek's suit against him. 17-4015-RAL, Doc. 28. This Court denied McPeek's motion to
compel because McPeek's complaint did not raise a claim that the defendants had denied him
access to the courts. 17-4015-RAL, Doc. 31. This Court explained, however, that McPeek could
seek permission to amend his complaint to add a claim for denial of access to the courts or file a
new case and raise the claim there. 17-4015-RAL, Doc. 31. This Court also detailed the elements
McPeek would need to plead to state a claim for denial of access to the courts. 17-4015-RAL,
Doc. 31.
McPeek moved to amend his complaint in December 2017, but his proposed amended
complaint did not include a claim that Payer denied him access to the courts by revoking his law
library privileges. 17-4015-RAL, Docs. 57, 57-1. McPeek filed another amended complaint in
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July 2018. 17-4015-RAL, Doc. 76. This amended complaint also failed to make any allegations
about Payer denying McPeek access to the courts. 17-4015-RAL, Doc. 76.
McPeek eventually settled his claims against Payer and other Yankton County Jail
employees. Doc. 59 at 15. He signed a Release entitled "Release of All Claims" on April 5,
2019,and this Court entered ajudgment of dismissal later that month. Doc. 58-4; Doc.59 at ^ 15;
17-4015-RAL, Doc. 90. In brief, the Release provided that McPeek agreed to accept $11,400 in
exchange for releasing all claims he had against Payer and the other Yankton County Jail
defendants. Doc. 58-4. Two paragraphs ofthe Release are central to Payer's motion for summary
judgment. First, the Release stated that McPeek released Payer and the other defendants from
any and all claims, demands, obligations, actions, causes of action,
rights of subrogation and all liability whatsoever for or on account
of any and all losses, (including loss of consortium), injuries,
damages, costs and expenses including those now or hereafter
arising directly or indirectly in consequence of events which
allegedly occurred while I was housed at the Yankton County Jail at
any time prior to the time ofthis Release, in particular from January
27, 2017 through June 14, 2017.
Doc. 58-4 at 1. Second, the Release made clear that it applied to the claims McPeek actually
brought as well to claims that he could have brought:
This Release includes, but is not limited to, all claims, allegations,
and actions as set forth and alleged in the pleadings filed in the
action styled Travis R. McPeek, Plaintiff, v. Mark Payer ... U.S.
District Court, Civ. 17-4015 RAL. This Release applies to all
claims, pleadings, allegations and actions made in said civil action,
and ftirther applies to all claims, allegations and actions which could
have been alleged, raised, or litigated in said action.
Doc. 58-4 at 2.
McPeek filed the complaint in this case in May 2020. Doc. 1. The only claim he asserts
against Payer concems the same allegations raised in his June 9,2017 motion to compel access to
the law library. Doc. 1 at 27; Doc. 59 at Tit 21-22. McPeek alleges that Payer asked the Bon
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Homme County State's Attorney to have his law library access revoked, that the State's Attorney
filed a motion to that effect on June 5, 2017, that a state judge granted the motion, and that Payer
violated his right to access the courts. Doc. 1 at 27.
II. Summary Judgment Standard
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper
when "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). On summary judgment, the
evidence is "viewed in the light most favorable to the nonmoving party." True v. Nebraska, 612
F.3d 676, 679 (8th Cir. 2010)(citation omitted). There is a genuine issue of material fact if"a
reasonable jury [could] return a verdict for either party" on a particular issue. Mayer v.
Countrywide Home Loans.647 F.3d 789, 791 (8th Cir. 2011). A party opposing a properly made
and supported motion for summary judgment must cite to particular materials in the record
supporting the assertion that a fact is genuinely disputed. Fed. R. Civ.P. 56(c)(1); Gacekv. Owens
& Minor Distrib.. Inc.. 666 F.3d 1142, 1145 (8th Cir. 2012). "Mere allegations, unsupported by
specific facts or evidence beyond the nonmoving party's own conclusions, are insufficient to
withstand a motion for summary judgment." Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir.
2007).
III. Analysis
McPeek does not challenge the validity or enforceability of the Release. Rather, his
arguments against summary judgment focus on the whether his claim against Payer falls within
the Release. The Release is a contract. Gores v. Miller. 875 N.W.2d 34, 36(S.D. 2016), and this
Court determines its effect "according to general contract law principles," Codv v. Hillard. 304
F.3d 767,778-79(8th Cir. 2002)(citing to South Dakota cases, a contract treatise, and an Eighth
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Circuit case when interpreting a settlement agreement in a § 1983 suit from South Dakota). Courts
apply the plain and ordinary meaning to language in a contract and will enforce the terms of the
contract when they are unambiguous. See Sun Prairie v. Sweeny,3:02-CV-03030-RAL,2020 WL
4813358, at *5 (D.S.D. Aug. 19, 2020); JAS Enters.. Inc. v. BBS Enters.. Inc.. 835 N.W.2d 117,
125-26(S.D. 2013); Bunkers v. Jacobson. 653 N.W.2d 732, 738(S.D. 2002).
The language of the Release here is not ambiguous and must be enforced according to its
terms. The Release states that it applies to "all claims, pleadings, allegations and actions made in
[17-4015-RAL], and further applies to all claims, allegations and actions which could have been
alleged, raised, or litigated in said action." Doc. 58-4 at 2(emphasis added). McPeek argues that
the Release only applies to claims he actually brought during the 2017 case, but that is not a
reasonable interpretation ofthe contract. The Release makes clear that it also applies to any claims
McPeek "could have" alleged during the 2017 case, and this Court cannot ignore that phrase when
interpreting the contract. See Whvte v. Alliance CAS. LLC.No. l:21-cv-4958-WMR-JKL,2022
WL 2389316, at *4(N.D. Ga. Mar. 11, 2022)(holding that language in offer ofjudgment stating
that offer encompassed all claims "which could have been asserted by Plaintiffs" was not
ambiguous); Nelson v. Schellpfeffer. 656 N.W.2d 740,744(S.D. 2003)("An interpretation which
gives a reasonable and effective meaning to all the terms [of a contract] is preferred to an
interpretation which leaves a part unreasonable or of no effect.").
Because the Release is not ambiguous, the only remaining question is whether McPeek
could have raised his claim against Payer during the 2017 case. McPeek makes three arguments
for why he could not have done so, none of which are persuasive. His first argument depends on
the Prison Litigation Reform Act (PLRA). He argues that he could not have raised his claim
against Payer during the 2017 litigation because the PLRA's exhaustion requirement bars prisoners
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from raising new claims that arise after the action was commenced. The PLRA's exhaustion
requirement states that "[n]o action shall be brought with respect to prison conditions under [§
1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).
This requirement is mandatory, Jones v. Bock. 549 U.S. 199, 211 (2007), and prisoners must
completely exhaust a claim before raising it in federal court, Moslev Corr. Care Sols., 671 F.
App'x 401, 402 (8th Cir. 2016)(per curiam)(affirming dismissal of claims that the plaintiff did
not exhaust until after he initiated his § 1983 action); Johnson v. Jones. 340 F.3d 624, 628 (8th
Cir. 2003)(stating that § 1997e(a)"clearly contemplates exhaustion prior to the commencement
ofthe action as an indispensable requirement").
But the PLRA's exhaustion requirement would not have prevented McPeek from filing an
amended or supplemental complaint during the 2017 case asserting a claim that Payer denied him
access to the courts. Rule 15(a) ofthe Federal Rules of Civil Procedure gives courts discretion to
allow amended complaints and Rule 15(d) extends that discretion to allowing supplementation of
a complaint to present claims that arose after a lawsuit was filed. Fed. R. Civ. P. 15(d). Either
through amendment or supplementation of his complaint, McPeek could have raised his claim
against Payer during the 2017 case, as McPeek alleged that Payer had denied him access to the
courts to secure dismissal of the claims McPeek had alleged against him in an earlier complaint.
17-4015-RAL, Doc. 28 at 2; s^ Cash v. Wetzeh 8 F. Supp. 3d 644,658(E.D. Pa. 2014)(holding
that a prisoner could file a supplemental complaint alleging that corrections officers were
retaliating against him for filing the original action); 6A Mary Kay Kane, Federal Practice and
Procedure § 1504(3d ed. April 2022 update)(explaining that Rule 15(d) allows a party to "assert
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separate or additional claims or defenses arising after commencement of the action, although the
courts typically require some relationship between the original and the later accruing material").
McPeek cites one case—Hempstead v. Hallev. No. 4:07-cv-513-RH-GRJ, 2011 WL
4374958(N.D. Fla. Aug. 29,2011)—^to support his argument that the PLRA would have prevented
him from raising his claim against Payer during the 2017 case. The court in Hempstead rejected
a prisoner's attempt to assert claims that arose after he sued, holding that the PLRA required him
to have exhausted these new claims before the suit was commenced. Id at *5. The Hempstead
decision did not discuss Rule 15(a) or (d), but rather cited to the Eighth Circuit's decision in
Johnson. Hempstead. 2011 WL 4374958, at *5 (quoting Johnson. 340 F.3d at 627). Johnson
concemed whether the PLRA required dismissal of claims that were exhausted by the time of the
district court's decision but not when the prisoners filed suit. 340 F.3d at 626. The Eighth Circuit
held that § 1997e(a) required prisoners to "exhaust administrative remedies before filing suit in
federal court," and that "dismissal is mandatory" if"exhaustion was not completed at the time of
filing." 340 F.3d at 627.
Three reasons counsel against following Hempstead. First, the Eighth Circuit's decision
in Johnson does not require the result reached in Hempstead. After all, Johnson concemed
prisoners who filed suit before exhausting their claims, not prisoners attempting to amend or
supplement their complaints with exhausted claims that arose after they commenced their suit.
340 F.3d at 626. And while Johnson said that prisoners must exhaust administrative remedies
''''before filing suit in federal court," this does not mean that the PLRA bars prisoners from adding
new claims that arose and were exhausted after they filed their original complaints. Again, the
PLRA states that "[n]o action shall be brought" until administrative remedies are exhausted. §
1997e(a). The Supreme Court has determined that "statutory references to 'action' generally refer
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to the claim as opposed to the entire lawsuit." Mbonvunkiza v. Beaselv. No.4:17-cv-00293-SMR-
SBJ,2018 WL 10483965, at *3(S.D. Iowa July 18,2018)(citing to the Supreme Court's decision
in Jones and holding that the Eighth Circuit's decision in Johnson did not preclude a prisoner from
adding new claims that arose after he filed his original complaint); see also Mattox v. Edelman,
851 F.3d 583,595(6th Cir. 2017)(concluding that the word "action"in § 1997e(a)"is synonymous
with the word 'claim'").
Second, Hempstead conflicts with the Supreme Court's decision in Jones. The Supreme
Court explained in Jones that courts interpreting the PLRA "should generally not depart from the
usual practice under the Federal Rules on the basis of perceived policy concerns." 549 U.S. at
212. The Court in Jones rejected several procedural rules the Sixth Circuit had created to advance
the PLRA's exhaustion requirement, finding that the text of the PLRA did not require them and
that the Sixth Circuit had exceeded the "proper limits on the judicial role" in adopting them. Id
at 202-03. As one court put it, Jones "teaches" that "the usual procedural rules apply to PLRA
cases imless the PLRA specifies otherwise." Garrett v. Wexford Health, 938 F.3d 69,87(3d Cir.
2019). Since nothing in the PLRA specifies that Rule 15(d) does not apply to cases brought by
prisoners, Hempstead erred by holding that prisoners carmot bring exhausted claims that arise after
they file suit. See Rhodes v. Robinson. 621 F.3d 1002,1007(9th Cir. 2010)("Congress has never
indicated, however, that it intended to do away with Rule 15(d) and supplemental pleadings in
PLRA actions.").
Third, Hempstead runs counter to appellate authority on the issue. Indeed,the Third, Sixth,
and Ninth Circuits have all held that Rule 15(d) allows prisoners to supplement their complaints
to add new claims that arose and became exhausted after the prisoner commenced the action.
Mattox. 851 F.3d at 595 (holding that the "PLRA and Federal Rule of Civil Procedure 15 permit
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a plaintiff to amend his complaint to add claims that were exhausted after the commencement of
the lawsuit, provided that the plaintiffs original complaint contained at least one fully exhausted
claim"); Boone v. Nose. 530 F. App'x 112, 113 n.l (3d Cir. 2013)(per curiam)("Under the
[PLRA],prisoners may file supplemental complaints ifthe claims in question 1)have truly accrued
since the beginning ofthe suit and 2)are exhausted per 42 U.S.C.§ 1997e(a)before the supplement
is filed."); Rhodes. 621 F.3d at 104-07 (holding that a prisoner could raise claims contained in
second amended complaint even though those claims had yet to arise or be exhausted at the time
the prisoner commenced his suit). Although the Supreme Court has not had to rule on this issue,
it recently cited to Rhodes. 621 F.3d 1002, when stating that the "original defect" of lack of
exhaustion in a prisoner's complaint "was arguably cured by" the prisoner's filing of amended
complaints. Ramirez v. Collier. 142 S. Ct. 1264,1276(2022).
McPeek also argues that he did not know that Payer was involved in revoking his access
to the law library until after he signed the April 2019 release. This is incorrect. McPeek's June
2017 motion to compel access to the law library makes the same allegations against Payer that
McPeek now seeks to raise in this case. McPeek therefore knew ofPayer's supposed involvement
in denying him access to the courts long before he signed the April 2019 release and could have
raised his claim against Payer during the 2017 case.
McPeek's last argument is that he lacked the legal knowledge necessary to raise his claim
against Payer during the 2017 case. The record does not bear this out though; McPeek cited
relevant Supreme Court case law in his June 2017 motion to compel access to the law library, 17-
4015-RAL,Doc.28 at 2, and this Court explained the elements McPeek would need to plead in its
order denying this motion, 17-4015-RAL, Doc. 31 at 2. In short, McPeek had all the factual and
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legal knowledge he needed to raise his claim against Payer during the 2017 case. Because he could
have raised this claim but did not, the Release bars him from doing so now.
IV. Conclusion
For the reasons stated above, it is hereby
ORDERED that Payer's Motion for Summary Judgment, Doc. 57, is granted.
DATED this ^ day of August, 2022.
BY THE COURT:
ROBERTO A. LANGI
CHIEF JUDGE
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