Shaw v. Wasko et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES ELMER SHAW,
Plaintiff,
vs.
KELLY WASKO, individual and official
capacity; DAN SULLIVAN, individual
and official capacity; BRENT FLUKE,
individual and official capacity; TROY
PONTO, individual and official capacity;
KARL KARBERG, individual and official
capacity; REBECCA SCHIEFFER,
individual and official capacity;
JESSICA COOK, individual and official
capacity; JOHN BENTING, individual
and official capacity; ALEJANDRO
REYES, individual and official capacity;
TAMMY MERTENS-JONES, individual
and official capacity; BRIAN FOLEY,
individual and official capacity; CRAIG
MOUSEL, individual and official
capacity; SAM BADURE, individual and
official capacity; CODY HANSON,
individual and official capacity; SETH
HUGHES, individual and official
capacity; TE ARCHAMBEAU, individual
and official capacity; DERICK EKREN,
individual and official capacity; JAMIE
ZOSS, individual and official capacity;
E REMFERT, individual and official
capacity; ERIC TIMMERMAN, individual
and official capacity; KELLY
TJEERDSMA, individual and official
capacity; LEE KAUFENBERG,
individual and official capacity; ED
LOUIE, individual and official capacity;
JERAME LARSON, individual and
official capacity; NICK ANDERSON,
individual and official capacity; JOEY
4:22-CV-04054-KES
1915A SCREENING
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GASTONGUAY, individual and official
capacity; BERGMAN, individual and
official capacity; WADE EVANS
WARNTJES, individual and official
capacity; THE DOC and Unknown DOC
Agents, Administrators and employees
in their individual and official capacity;
MARLIN’S INC., Unknown Catering
Owner(s), Manager(s) in their individual
and official capacity d/b/a CMB
Management d/b/a/ Summit Food
Services; GLOBAL TELLINK
CORPORATION, Unknown Owner(s),
Manager(s), Employees and/or
Representative(s) in their individual and
official capacity; BUREAU OF
INFORMATION AND
TELECOMMUNICATIONS, Unknown
Owner(s), Manager(s), Employee(s)
and/or Representative(s) in their
individual and official capacity;
SECRETARY OF HEALTH, (Name
Unknown), individual and official
capacity; DEPARTMENT OF HEALTH,
Unknown Directors and/or Officers in
their individual and official capacity;
CORRECTIONAL HEALTH SERVICES,
Unknown Employees in their individual
and official capacity; MARY
CARPENTER, M.D., individual and
official capacity; EUGENE R. REGIER,
M.D., individual and official capacity;
SHAMIM SULTANA, M.D., individual
and official capacity; MELVIN
WALLINGA, M.D., individual and official
capacity; DANYA KLAWITTER,
individual and official capacity; SD
BOARD OF PARDONS AND PAROLES,
Unknown Agents and/or Members in
their individual and official capacity;
MIKE LEIDHOLT, individual capacity;
DENNY KAEMINGK, individual
capacity; DAREN YOUNG, individual
capacity; JENNIFER DRIESKE,
individual capacity; JOSH KLEMIK,
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individual and official capacity;
ANGELA PECHOUS, individual and
official capacity; DOUG CLARK,
individual capacity; TIM REISCH,
individual capacity,
Defendants.
Plaintiff, James Elmer Shaw, an inmate at the South Dakota State
Penitentiary, filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Docket
1. This court granted Shaw leave to proceed in forma pauperis and ordered him
to pay an initial filing fee. Docket 6. Shaw timely paid his filing fee on May 25,
2022. This court will now screen Shaw’s complaint under 28 U.S.C. § 1915A.
I. 	1915A Screening
A. 	Factual Background
The facts alleged in Shaw’s complaint are: that State Penitentiary
officials, as well as officials at the Mike Durfee State Prison where Shaw was
previously incarcerated, have violated several of Shaw’s rights relating to the
practice of his religion. Docket 1 ¶¶ 1-2. Shaw sues all individual defendants in
their individual and official capacities, except for Mike Leidholt, Denny
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Kaemingk, Darin Young,1 Jennifer Dreiske,2 Doug Clark,3 and Tim Reisch,4
who are sued in their individual capacities only.5 See id. ¶ 51. Although Shaw
indicates specific actions taken by individual defendants throughout his
complaint, he also makes allegations against “all defendants” and states that
“[a]ll defendants are hereby sued jointly and severally, for those acts and
omissions described fully infra and as joint tort feasures [sic] [.]” See id.
(citation omitted). Thus, this court construes his complaint as bringing all
claims against all defendants. See id. Shaw seeks declaratory relief, several
1 Shaw names Daren Young as a defendant in this lawsuit. Docket 1 ¶ 47. The
actual name of the former State Penitentiary warden is Darin Young. When
referring to Young by his full name, this court will use Young’s actual name.
2 Shaw names Jennifer Drieske as a defendant in this lawsuit. Docket 1 ¶ 48.
The actual name of the former State Penitentiary official is Jennifer Dreiske.
This court will use Dreiske’s actual name.
3 Although Shaw does not name Doug Clark as a defendant in this lawsuit, he
references allegations against Clark in a footnote in the section of the
complaint in which he names defendants, and he also makes factual
allegations against Clark. See Docket 1 ¶¶ 4 n.2, 145.
4 Although Shaw does not name Tim Reisch as a defendant in this lawsuit, he
makes factual allegations against Reisch. See Docket 1 ¶ 145.
5 Leidholt, Kaemingk, and Reisch are former South Dakota Secretaries of
Corrections, Young and Clark are former South Dakota State Penitentiary
Wardens, and Jennifer Dreiske is a former South Dakota State Penitentiary
official. 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.” Fed. R. Civ. P. 25(d). The
current Secretary of Corrections is Kellie Wasko, and the current South Dakota
State Penitentiary Warden is Dan Sullivan. Shaw alleges that Troy Ponto is the
current State Penitentiary official who has replaced Dreiske. Docket 1 ¶ 4 n.2.
Wasko is automatically substituted for Leidholt, Kaemingk, and Reisch;
Sullivan is automatically substituted for Young and Clark; and Ponto is
automatically substituted for Dreiske for official capacity claims. Thus, the
remaining claims against Leidholt, Kaemingk, Reisch, Young, Clark, and
Dreiske are in their individual capacities only.
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forms of injunctive relief, money damages, and “[a]ny other relief this Court
may deem just and proper.” Id. ¶¶ 374-378.
1. 	Breach of Contract
Shaw is a follower of Dorcha Cośan (“DC”), which he describes as “a sect
or denomination of the Wiccan faith.” Id. ¶ 169. Shaw claims that his religious
beliefs are sincerely held. Id. ¶ 170. He claims that his religion requires him to
make a geise, or oath, that binds him “to do or not do specific acts.” Id.
¶ 176(b). He also claims that “[f]or a DC member to make and then break a
geise could cause or bring horrible misfortunes of divine retribution, even the
possibility of death,” and that “[w]hen a DC member makes and keeps their
geise, that member will attain Godhood or Goddess Hood.” Id. Shaw describes
attaining Godhood as “his ultimate religious goal[.]” Id. ¶ 178.
Shaw has previously filed a civil rights lawsuit pertaining to his religious
practices while in state custody. See id. ¶ 57. Shaw alleges that this lawsuit
ended when Shaw and the DOC signed a settlement agreement and release of
claims. Id. ¶ 58. He alleges that this settlement agreement allowed him to
access and possess religious materials, including whole magazines and
standalone pages from magazines, and other religious materials. See id. ¶¶ 68-
69, 72. He alleges that this settlement agreement was “obtained by deceit” on
the part of DOC officials who “submitted perjured testimony” to this court. Id.
¶¶ 58-59. Shaw specifically alleges that former State Penitentiary Warden
Young promised to allow him to practice his religion if he entered into the
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settlement agreement and that he agreed to settle the case under duress to end
retaliation by DOC officials. See id. ¶ 63.
Shaw claims that defendants have breached the settlement agreement in
several ways. See, e.g., id. ¶¶ 68-70, 73, 75-79, 81-82, 84-85, 90-98. He claims
that defendants led him to believe that he most of the magazines in dispute
and over 100 standalone pages from magazines would be accessible to him if
he agreed to settle his lawsuit. Id. ¶¶ 68-69. He also claims that Young
promised him that Young would “personally make an effort to see that [Shaw’s]
religion was recognized and some of [Shaw’s Project Applications would be]
approved” if he settled the lawsuit, but if he chose not to settle the lawsuit, he
would be “transferred to New Jersey or New Mexico, where there are not many
white guys.” Id. ¶ 73 (internal quotation omitted). Shaw alleges that he signed
the settlement agreement to prevent a retaliatory transfer. Id. ¶ 74. He alleges
that after signing the agreement, he learned there were only ten magazines and
eleven standalone pages in total. Id. ¶ 75. He also alleges that John Benting
then told him that six of the ten magazines were rejected by Wade Evans
Warntjes and Tammy Mertens-Jones because each contained a single image
that violated the DOC pornography policy. Id. ¶ 76.
Shaw alleges that Benting also told him that two of the six rejected
magazines would be thrown out and the other four would be placed in a
viewing room file. Id. ¶ 77. He alleges that the settlement agreement made no
reference to a viewing room file, that these magazines were educational and
therefore fell under an exemption to the DOC policy, and that any offensive
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images could be blacked out because offensive images in a tarot card deck and
religious book, that were handled under the settlement agreement, were
similarly blacked out. Id. ¶ 78. He also alleges that Benting refused these
requests and refused to save the rejected items for appeal and for legal
proceedings. Id. ¶¶ 79-80.
Shaw states that he was deceived into believing that he could
permanently keep the tarot card deck and religious book in his cell once the
offensive images were blocked out as part of his settlement and that all acts of
retaliation by DOC officials would cease when he agreed to settle his case. Id.
¶¶ 82-84. He states that “retaliation intensified” after the settlement. Id. ¶ 85.
He also states that he was told shortly after the settlement that DC was now
recognized by the State Penitentiary but that his religious practice was limited
to “standing outside for an hour, two times a week.” Id. ¶ 90. Shaw claims that
a Sacred Circle, a fire pit, a sauna, or the ability to celebrate religious
observances with ritual and feast foods, as required by DC, were not allowed by
Mertens-Jones, despite Young’s promises that he could engage in these
practices. Id. ¶¶ 90, 92. He claims that he was told that he needed a diabetic
diet and therefore could not have his religious diet. Id. ¶ 91. Shaw alleges that
Mertens-Jones then began telling Muslim inmates that their religious diet was
discontinued because of Shaw’s grievances and litigations. Id. ¶ 95. He alleges
that Mertens-Jones told Native American inmates that their pow-wow and
sweat lodge privileges were at risk if he continued filing grievances and
lawsuits. Id. ¶ 96. He also alleges that Mertens-Jones and Craig Mousel
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unlawfully censored his mail on the grounds that it was sexually explicit and
that any nudity contained within it was medical, educational, or
anthropological content allowed under DOC policy. Id. ¶¶ 97-98.
Shaw claims that he had an altercation with another inmate because of
Mertens-Jones’s actions. Id. ¶ 115. He claims that he was placed in the Special
Housing Unit (“SHU”) as a result of this altercation, where he engaged in a
hunger strike to adhere to his religious dietary beliefs. Id. ¶¶ 116-118. He also
claims that he fell, hit his head, and lay there while other inmates called for
help for over an hour. Id. ¶ 120. Shaw alleges that he eventually was taken to
the hospital, diagnosed with diabetic ketoacidosis, and hospitalized for three
days. Id. ¶ 121. He alleges that he returned to the State Penitentiary, where
Troy Ponto, Jessica Cook, and Warntjes falsified documents to ensure that
Shaw would be placed in Restrictive Housing (“RH”) after a disciplinary hearing
regarding his altercation. Id. ¶¶ 128-30.
Shaw alleges that Unit Manager Sam Badure targeted his cell for weekly
searches, spending 10 to 20 minutes there to go through his legal work and
take his property, even though a walkthrough of an inmate’s cell normally
takes less than a minute. Id. ¶ 111. He alleges that this persisted for weeks
and was retaliation for his grievances and litigation. Id. ¶ 112. He also alleges
that his grievances requesting that camera footage of these actions be
preserved for litigation purposes went unanswered. Id. ¶ 113.
Shaw states that Seth Hughes and Eric Timmerman denied him his
religious book, tarot card deck, magazines, and standalone magazine pages
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that he was promised in his settlement agreement while he was in the SHU and
RH. Id. ¶ 142. He states that these items have disappeared out of his property
and that only Christian, Jewish, Muslim, and Native American religious
literature was allowed in the SHU. Id. ¶¶ 140, 142. He also states that he was
not allowed to file grievances regarding his missing property. Id. ¶ 144.
Shaw claims that Brent Fluke, Rebecca Schieffer, Alejandro Reyes, Brian
Foley, Te Archembeau, Kelly Tjeerdsma, the Secretary of Health, Dr. Melvin
Wallinga, Kaemingk, Leidholt, Reisch, Clark, Kellie Wasko,6 Young, Dan
Sullivan, Dreiske, Ponto, Cook, Benting, Mertens-Jones, Warntjes, unknown
DOH, CHS, CBM/Summit Food Services defendants,7 Dr. Mary Carpenter, Dr.
Eugene R. Regier, and Dr. Shahim Sultana denied him his religious diet, a
suitable medical diet, and all-natural herbal medications and treatments as
required by his religious beliefs. Id. ¶ 145.
2. 	Freedom of Religion
Shaw alleges that defendants have pressured him to violate his sincerely
held religious beliefs. Id. ¶ 172. He claims that Fluke, Karl Karberg, Schieffer,
Reyes, Lee Kaufenberg, Ed Louie, Jerame Larson, and Joey Gastonguay caused
him to be transferred from the Mike Durfee State Prison to the State
Penitentiary in retaliation for his filing of Project Applications and grievances.
6 Shaw names Kelly Wasko as a defendant in this lawsuit. Docket 1 ¶ 4. The
actual name of the Secretary of Corrections is Kellie Wasko. When referring to
Wasko by her full name, this court will use Wasko’s actual name.
7 CBM/Summit Food Services is a private company that has contracted with
the state. Thus, it acts under color of state law when providing food services to
state inmates and can be sued under § 1983. See West v. Atkins, 487 U.S. 42,
56 n.14 (1988).
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Id. ¶ 173(1). He also claims that Foley placed him in the SHU after he told
Foley he would file a lawsuit against him. Id. ¶ 173(2). Shaw states that Foley
told other inmates interested in DC that they would be labelled as security
threats or transferred if they engaged in any DC activities in order to prevent
DC from having enough members to become a group. Id. ¶ 173(3). He states
that Dreiske testified to the court in the previous lawsuit that Shaw could
practice DC if he could find a volunteer. Id. ¶ 173(4). He also states that
Dreiske, Mertens-Jones, and Foley prevented Shaw from finding a volunteer,
after which Dreiske admitted that Shaw would not be allowed “to adhere to the
laws of DC if he had found a volunteer[.]” Id.
Shaw states that Mertens-Jones and Mousel have stolen books mailed to
him, donated those books to the State Penitentiary Wicca group, and denied
him access to chapel activities including access to the stolen books. Id.
¶ 173(6). He states that Dreiske and Mertens-Jones testified to this court that
there was no available outdoor space for DC but then provided the Wicca and
Asatru groups separate outdoor space for worship. Id. ¶ 173(8). He also states
that Dreiske and Mertens-Jones, in affidavits, claimed that “all activities
approved for other groups would be available for DC.” Id. ¶ 175. Shaw claims
that Dreiske, Mertens-Jones, Foley, Warntjes, and the unknown Global Tellink8
and Bureau of Information and Telecommunications defendants have denied
8 Global Tellink is a private company that has contracted with the state. Thus,
it acts under color of state law when providing technology services to state
inmates and can be sued under § 1983. See West, 487 U.S. at 56 n.14.
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him a Surface Pro laptop and tablet necessary to follow DC, despite allowing
similarly situated inmates of other religions laptops and tablets. See id. ¶ 183.
Shaw claims that he has been denied his required religious diet of “all
natural, farm fresh, organic fruits and vegetables” and “grass-fed, no growth-
hormone meats” four times a day. Id. ¶ 187. He claims the diet also requires a
member of DC to prepare and cook his meals. Id. He also claims that Jewish
inmates are permitted kosher diets. Id. Shaw alleges that the continued denial
of his diet has led to him eating as little as possible from November 2018 to
May 2019, resulting in him losing 64 pounds, being hospitalized for heart
issues and malnutrition, and developing diabetes. Id. ¶ 188. He alleges that he
is required to celebrate “13 Esbats” and “8 Sabbats” throughout the year with
“Ritual and Feast[.]” Id. ¶¶ 192-194. He alleges that he has been denied these
religious celebrations. See id. ¶ 196.
Shaw alleges that his religious beliefs require him to abstain from
pharmaceutical medicine and to seek “all natural herbal remedies and
treatments[.]” Id. ¶ 200. He alleges that he has been prevented from obtaining
these remedies and treatments, causing him pain and suffering and preventing
him from practicing his religion. Id. Shaw states that he is mandated by his
religion to “learn and use specific ritual tools” and that “the denial of ritual
tools is the equivalent of taking a digit or a limb from [him.]” Id. ¶ 201. He
states that Dreiske testified in an affidavit that ritual tools available for other
religious groups would be available for DC as well. Id. He states that Dreiske,
Mertens-Jones, Foley, and Warntjes have denied him access to ritual tools that
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are permitted to similarly situated inmates and religious groups other than DC.
Id. ¶ 202. He also states that DC requires him to use divination tools, which
Dreiske, Mertens-Jones, Foley, and Warntjes have prevented him from using.
Id. ¶¶ 203-204.
Shaw states that Cody Hanson, Hughes, Archambeau, Timmerman, and
Warntjes have burdened his religious exercise by forcing him to live with “non-
believers of DC, other [r]aces, [and] those of other [r]eligious [g]roups or [p]eople
who live by a different creed” in order to cause confrontations between him and
other inmates and to prevent him from practicing his religion in his cell. Id.
¶ 208. He states that he learned from Hughes on March 24, 2022, that the
DOC had incorrectly classified his religion as an Aryan white power movement
and thereafter refused his religious requests. Id. ¶ 209. He also states that this
is a misinterpretation of his religious beliefs and of the word “Aryan[,]” which
he believes is “descriptive of the original Indo-European Tribes/Peoples which
includes the Celts, Germans, Balts and Slavs.” Id.
3. 	Health Issues and Conditions of Confinement
Shaw claims that he suffers from Type II diabetes and diabetic
neuropathy, primary and secondary osteoarthritis, musculoskeletal and
sciatica pain, Gastroesophageal Reflux Disease (“GERD”), depression, anxiety
(including diagnosed agoraphobia, anxiety disorder due to medical conditions,
generalized anxiety disorder, panic disorder, and possibly other “specified and
unspecified axiety [sic] disorders or phobias[,]”), insomnia, migraine headaches,
and PTSD. Id. ¶ 234. He claims that defendants have deprived him of adequate
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food and medical care. Id. ¶ 237. He also claims that the unknown DOC, DOH,
Correctional Health Services, and CBM/Summit Food Services defendants all
claim that each other’s policies prevent him from accessing all-natural
treatments and foods. Id. ¶ 239. Shaw alleges that Angela Pechous, Mousel,
Warntjes, and other unknown defendants have prevented him from writing to
outside doctors to acquire all-natural treatments and recommendations. Id.
¶ 241. He alleges that he attempted to send his medical records out and was
charged for mail but that Pechous, Mousel, and Warntjes refused to allow him
to seek outside medical care, rejected his outgoing mail, failed to return the
outgoing mail to him, and then charged him a second time to send the mail to
“anyone not a doctor.” Id. ¶ 242.
Shaw alleges that unknown DOC, DOH, and Correctional Health Services
defendants and Hughes have allowed him to be tortured by the conditions of
his confinement. See id. ¶ 243. Specifically, he alleges that he has been
punished by taking his clothes, mattress, pillow, hot food, and toiletries for up
to 48 hours. Id. ¶ 243(1). He also alleges that his cell is illuminated 24 hours a
day. Id. ¶ 243(2). Shaw states that unknown defendants “mase [sic] inmates in
their cell then refuse to remove or decontaminate the mase [sic] for hours at a
time while officers walk around with gas masks on and laugh at [him]
struggling to breath [sic].” Id. ¶ 243(3). He states that during the COVID-19
outbreak, he was denied showers and the ability to self-quarantine and
maintain social distance for extended periods. Id. ¶ 245. Shaw claims that he
has had to breathe thick dust and clean his cell several times a day during
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renovations and construction at the State Penitentiary. Id. ¶ 248. He claims
that the Secretary of Corrections, Young, and unknown DOH and Correctional
Health Services defendants refused to provide ventilation, masks, and ear
protection, even though construction workers were provided respirators, eye
protection, and ear protection. Id. ¶¶ 248-250. He also claims that this caused
him respiratory issues, eye irritation, earaches, and headaches. Id. ¶¶ 248-249.
Shaw states that Dr. Regier, Dr. Sultana, and Dr. Wallinga often deny or
delay necessary treatment, even when that treatment is recommended by
outside medical doctors. Id. ¶ 252. He states that Dr. Regier, Dr. Sultana, and
Dr. Wallinga crush medications that are not supposed to be crushed according
to the warning labels and then hide those labels from him to prevent him from
learning that this has caused his GERD. Id. ¶ 254. He also states that he has
been denied all GERD treatments, including requests to see a
gastroenterologist, since making allegations regarding crushed medication. Id.
¶ 255. Shaw claims that Klawitter filed a false report against him in retaliation
for his complaints about her delaying treatment and that this false report
caused his pain medications to be crushed. Id. ¶ 256. He claims that unknown
DOC, DOH, and Correctional Health Services defendants cancelled his physical
therapy while he was in the SHU. Id. ¶ 253. He also claims that unknown DOC,
DOH, and Correctional Health Services defendants refuse to respond to his
emergency call light button when he complains of vomiting, lightheadedness,
and chest pains. Id. ¶ 246.
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4. 	Disability Accommodations
Shaw claims that he is a qualified individual with disabilities as defined
by the Americans with Disabilities Act (“ADA”) and SDCL § 20-13-1(4). Id.
¶ 258-259. He claims that he has been and continues to be excluded from
participation in and denied the benefits of “services, programs, activities,
accommodations, or was otherwise subjected to discrimination . . . based on
[his] Aryan Race, his religion . . . and his disabilities.” Id. ¶ 260. He also claims
that filing grievances regarding this discrimination and retaliation led to further
discrimination and retaliation. Id. ¶ 262.
Shaw alleges that he has been diagnosed as requiring a no work order, a
limited activities order, a medical bed or handicapped cell, a bottom bunk
order, an ADA/medical shower, a no stairs order, orthotic shoe inserts, medical
shoes, bilateral knee braces, a back brace, a cane, a wheel chair for long
distances and recreation, a TENS unit and therabands for physical therapy,
double rinsed laundry, a head of bed wedge, an extra pillow, a firm mattress,
and ice for medical purposes. See id. ¶ 266. He alleges that the schools at the
State Penitentiary and the Mike Durfee State Prison are not accessible,
preventing him from receiving Earned Discharge Credits by participating in
programming. Id. ¶ 268. He also alleges that unwritten policies require him to
work beyond his physical capabilities and walk up and down stairs in order to
receive discharge credits. Id. ¶ 269.
Shaw states that Hanson, Badure, E Remfert, Jamie Zoss, and
Tjeerdsma, all of whom Shaw alleges are not medical personnel, denied him
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ADA showers, causing him to fall and injure himself when attempting to
shower. Id. ¶ 271. He states that he has also fallen and injured himself
because he is not in a handicapped cell and his current cell has no railings. Id.
¶ 276. He states that he has trouble using the tables, stools, and lockers in his
cell because his cell is not accessible. Id. ¶¶ 277-278. Shaw claims that Dr.
Sultana, Hanson, Hughes, and Warntjes deny him ADA accommodations as
punishment for filing grievances and then prevented or deterred him from filing
this lawsuit. Id. ¶ 279. He claims that Fluke, Schieffer, Reyes, Archambeau,
and Warntjes required him to walk miles to get non-religious meals as
retaliation and punishment at Mike Durfee State Prison, ultimately escalating
into a retaliatory transfer to the State Penitentiary. Id. ¶ 280. He also claims
that Gastonguay and Bergman took his handicapped items from his room to
punish him for filing grievances against them. Id. ¶ 284.
5. 	Mail Issues
Shaw claims that on February 2, 2022, he placed an order for over $100
from an art supply catalog approved for inmate orders, and Mousel and
Mertens-Jones stole his order as retaliation. Id. ¶ 289. He claims that he never
received the order or a refund. Id. He also claims that Mertens-Jones, Mousel,
and Warntjes stole a tarot deck that was mailed to him and that he never
received the order or a refund. Id. ¶ 290. Shaw alleges that his rejected
materials fall under DOC Policy 1.3.C.8, which states that “[p]ublished material
containing nudity illustrative of medical, educational, or anthropological
content may be excluded from [the definition of obscene materials].” Id. ¶¶ 291-
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292. He alleges that Mertens-Jones only allows him preapproved books and
magazines. Id. ¶ 297. He also alleges that Mertens-Jones has committed mail
fraud by changing return addresses on his outgoing mail and stealing his
incoming mail and books. Id. ¶ 298.
Shaw alleges that Mertens-Jones, Hughes, Pechous, and Warntjes denied
him access to his viewing room file while he was in RH unless he agreed to
allow Pechous to discard his magazines. Id. ¶ 310. He alleges that he was told
that all of his mail would be thrown away if he did not agree. Id. He also alleges
that he was not allowed to save any rejected mail for litigation. Id. ¶ 311.
6. 	Grievance, Disciplinary, and Court Access Issues
Shaw states that defendants have prevented him from filing grievances
and failed to respond to his filed grievances. E.g., id. ¶ 62. He states that his
grievances are denied out of retaliation and out of a “desire to impede or
prevent [him] from getting his claims to the Courts.” Id. ¶ 320. He also states
that Larson, a Mike Durfee State Prison official, has found Shaw guilty of
disciplinary infractions “on suspicion instead of actual evidence[,]” has used
fabricated disciplinary reports, has punished Shaw for refusing to provide
information about other inmates, and has caused retaliatory transfers. Id.
¶ 323. Shaw claims that the DOC’s “Conduct Which Disrupts” disciplinary
report fails to provide clear notice of charges, resulting in transfers or harm to
his eligibility for parole. Id. ¶ 324. He claims that Gastonguay and Bergman
took his legal work, artwork, and pictures in retaliation because Shaw filed
grievances. Id. ¶ 326.
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Shaw claims that the LexisNexis services offered by the DOC to inmates
is inadequate. Id. ¶ 329. He claims that his research is often monitored and
that he is often “kicked out of LexisNexis and unable to log back in.” Id. ¶ 330.
He also claims that Hughes and Pechous often reference his research activities
to let him know that they are aware of his attempts to bring lawsuits and that
they are impeding these efforts. Id. ¶ 331. Shaw alleges that he has been
prevented from submitting a supplemental complaint in an ongoing lawsuit,
from filing a medical malpractice lawsuit in state court, and from challenging
parole eligibility calculations that he believes are inaccurate. Id. ¶¶ 332, 334,
336. He alleges that Ekren prevented him from mailing out legal mail. Id.
¶ 333. He also alleges that defendants have prevented him from accessing legal
materials necessary to pursue his claims. Id. ¶ 335.
B. 	Legal Background
The court must assume as true all facts well pleaded in the complaint.
Estate of Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995). Pro se and civil
rights complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89,
94 (2007); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). Even
with this construction, “a pro se complaint must contain specific facts
supporting its conclusions.” Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.
1985) (citation omitted); see also Ellis v. City of Minneapolis, 518 F. App’x 502,
504 (8th Cir. 2013) (per curiam).
A complaint “does not need detailed factual allegations . . . [but] requires
more than labels and conclusions, and a formulaic recitation of the elements of
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a cause of action will not do[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal citations omitted). If it does not contain these bare essentials,
dismissal is appropriate. See Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir.
1985). Twombly requires that a complaint’s “[f]actual allegations must be
enough to raise a right to relief above the speculative level . . . on the
assumption that all the allegations in the complaint are true[.]” Twombly, 550
U.S. at 555 (internal citation omitted); see also Abdullah v. Minnesota, 261 F.
App’x 926, 927 (8th Cir. 2008) (per curiam) (noting that a “complaint must
contain either direct or inferential allegations respecting all material elements
necessary to sustain recovery under some viable legal theory”). Under 28
U.S.C. § 1915A, the court must screen prisoner complaints and dismiss them if
they “(1) [are] frivolous, malicious, or fail[] to state a claim upon which relief
may be granted; or (2) seek[] monetary relief from a defendant who is immune
from such relief.” 28 U.S.C. § 1915A(b). The court will now assess each
individual claim under 28 U.S.C. § 1915A.
C. 	Legal Analysis
1. 	Claims Against the DOH, DOC, Correctional Health
Services, and the Bureau of Information and
Telecommunications
Construing his claims liberally, Shaw brings claims against the DOH,
DOC, Correctional Health Services, and the Bureau of Information and
Telecommunications. See Docket 1 ¶¶ 32, 35, 37-38. The Eleventh Amendment
bars suit against a state entity, as opposed to a state official, regardless of
whether money damages or injunctive relief is sought. Cory v. White, 457 U.S.
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85, 90-91 (1982). In determining whether an entity is entitled to Eleventh
Amendment immunity, the court examines powers created by state law, the
degree of autonomy and control, and whether it is funded by the state
treasury. Greenwood v. Ross, 778 F.2d 448, 453 (8th Cir. 1985).
According to South Dakota statute, the DOC, DOH, and the Bureau of
Information and Telecommunications were created by the state legislature. See
SDCL §§ 1-15-1.2, 34-1-1.1, 1-33-37. Correctional Health Services is a division
of the DOH. See Correctional Health Care, S.D. Dep’t of Health,
https://doh.sd.gov/corrections (last visited July 6, 2022). The DOC, DOH,
Correctional Health Services, and the Bureau of Information and
Telecommunications are arms of the state of South Dakota and, as such, are
not subject to suit under § 1983. Shaw’s claims against the DOC, DOH,
Correctional Health Services, and the Bureau of Information and
Telecommunications are dismissed without prejudice under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1).9
2. 	Official Capacity Claims for Money Damages
Shaw brings claims against all defendants in their official capacities
except Leidholt, Kaemingk, Young, Dreiske, Clark, and Reisch, as new
defendants have been substituted for these six defendants in their official
capacities under Fed. R. Civ. P. 25(d). See Docket 1 ¶ 51. All defendants were
9 To the extent that Shaw brings claims against unnamed DOC, DOH,
Correctional Health Services, and Bureau of Information and
Telecommunications officers and employees, those claims are not dismissed
here.
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employees of or contracted with the state of South Dakota at the times in
question. Id. ¶¶ 4-50. “[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)). Thus, it is a suit against the state
itself. While “[§] 1983 provides a federal forum to remedy many deprivations of
civil liberties, . . . it does not provide a federal forum for litigants who seek a
remedy against a State for alleged deprivations of civil liberties.” Id. at 66.
The Eleventh Amendment generally acts as a bar to suits against a state
for money damages unless the state has waived its sovereign immunity. Id.
Here, Shaw requests both money damages and injunctive relief. The state of
South Dakota has not waived its sovereign immunity. Thus, Shaw’s claims for
money damages against all defendants except Leidholt, Kaemingk, Young,
Dreiske, Clark, and Reisch in their official capacities are dismissed without
prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(iii) and 1915A(b)(2).
3. 	State-Law Breach of Contract Claims
Shaw alleges that defendants have breached the settlement agreement
entered into as a result of his previous lawsuit. Docket 1 ¶¶ 341-343. Further,
Shaw alleges that defendants forced him to enter into that agreement under
duress in order to prevent further retaliation and that defendants made false
promises regarding enforcement of the agreement. Id. ¶¶ 63, 68-69, 73, 77, 82-
84. Under 28 U.S.C. § 1367(a), this court has supplemental jurisdiction over all
other claims that “form part of the same case or controversy” as the civil action
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over which this court has original jurisdiction. Thus, this court has jurisdiction
over Shaw’s state-law breach of contract claims.
Shaw alleges facts sufficient to state claims for breach of contract. Under
South Dakota law, “[t]he elements of a breach of contract are (1) an enforceable
promise; (2) a breach of the promise; and (3) resulting damages.” Bowes
Constr., Inc. v. S.D. Dep’t of Transp., 2010 S.D. 99, ¶ 21, 793 N.W.2d 36, 43
(citation omitted). Shaw alleges that defendants have violated terms of the
settlement agreement and that these violations have resulted in harm,
including restrictions on his ability to practice his religion and retaliation. See
Docket 1 ¶¶ 65-66. Shaw’s state-law breach of contract claims survive § 1915A
screening.
4. 	Religious Land Use for Incarcerated Persons Act
(“RLUIPA”) Claim
Shaw asserts that defendants’ actions violate RLUIPA. See id. ¶¶ 344-
346. RLUIPA protects “any exercise of religion, whether or not compelled by, or
central to, a system of religious belief.” Holt v. Hobbs, 574 U.S. 352, 358 (2015)
(quoting 42 U.S.C. § 2000cc-5(7)(A)). “[A] prisoner’s request for an
accommodation must be sincerely based on a religious belief and not some
other motivation,” and the prisoner must show that the prison policy
substantially burdens the prisoner’s exercise of religion. Id. at 360-61.
To establish a prima facie case under RLUIPA, a plaintiff must show “1)
that he engaged in a religious exercise; and 2) that the religious exercise was
substantially burdened.” Smith v. Allen, 502 F.3d 1255, 1276 (11th Cir. 2007),
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abrogated on other grounds by Sossamon v. Texas, 563 U.S. 277 (2011); see
also 42 U.S.C. § 2000cc-1(a). If the plaintiff succeeds in making a prima facie
showing, the defendant bears the burden to prove that the challenged
regulation is the least restrictive means of furthering a compelling
governmental interest. Allen, 502 F.3d at 1276. Because Shaw claims that he
has been denied the ability to participate in religious events, his RLUIPA claim
survives screening.
5. 	First Amendment Free Exercise Claim
Shaw claims that defendants have violated his free exercise rights under
the First Amendment. Docket 1 ¶¶ 347-349. In order to state a First
Amendment free exercise claim, Shaw must allege facts showing that prison
officials have substantially burdened the free exercise of his religion. Patel v.
U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008). Substantially
burdening the free exercise of religion means that the regulation
must significantly inhibit or constrain conduct or expression that
manifests 	some 	central 	tenet 	of 	a 	person’s 	individual 	religious
beliefs; 	must 	meaningfully 	curtail 	a 	person’s 	ability 	to 	express
adherence to his or her faith; or must deny a person reasonable
opportunities to engage in those activities that are fundamental to a
[person’s] religion.
Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988 (8th Cir. 2004) (cleaned up).
Shaw alleges that defendants have prevented him from freely exercising his
religion. Docket 1 ¶ 348. Thus, Shaw’s First Amendment free exercise claims
survive § 1915A screening.
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6. 	Fourteenth Amendment Equal Protection Claim
Shaw claims that defendants have violated his right to equal protection
of the laws under the Fourteenth Amendment. See id. ¶¶ 350-352. The equal
protection clause of the Fourteenth Amendment requires the government to
“treat similarly situated people alike,” a protection that applies to prisoners.
Murphy, 372 F.3d at 984 (quoting Rouse v. Benton, 193 F.3d 936, 942 (8th Cir.
1999)). The Eighth Circuit Court of Appeals has explained for a prisoner to
prevail on an equal protection claim, he “must show that he is treated
differently from similarly-situated inmates and that the different treatment is
based upon either a suspect classification or a fundamental right.” Patel, 515
F.3d at 815 (citations and internal quotation omitted). “Religion is a suspect
classification.” Id. at 816 (citing Weems v. Little Rock Police Dep’t, 453 F.3d
1010, 1016 (8th Cir. 2006)).
Here, Shaw alleges that defendants have treated him differently than
similarly situated inmates of different religions. Docket 1 ¶ 228. Specifically, he
alleges that similarly-situated inmates are allowed to participate in religious
activities and exercises that are denied to him. Id. ¶¶ 228-231. Thus, Shaw’s
Fourteenth Amendment equal protection claim survives § 1915A screening.
7. 	42 U.S.C. § 1985(3) Civil Conspiracy Claim
Shaw brings a civil conspiracy claim under 42 U.S.C. § 1985(3). Id.
¶¶ 350-352. To state a claim under 42 U.S.C. § 1985, Shaw must allege
(1) the existence of a civil conspiracy; (2) that the purpose of the
conspiracy was to deprive [him] either directly or indirectly of [his]
civil rights; (3) that a conspirator did an act in furtherance of the
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object of the conspiracy; and (4) damages, shown by demonstrating
either injury to person or property or the deprivation of a civil right.
Mettler v. Whitledge, 165 F.3d 1197, 1206 (8th Cir. 1999); see also Dubray v.
Rosebud Hous. Auth., 565 F. Supp. 462, 466 (D.S.D. 1983). For § 1985(3) to
apply, “there must be some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators’ action.” Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971). “[E]vidence of purposeful discrimination
must be produced to avoid dismissal of a § 1985(3) claim.” Schmidt v. Louise
Big Boy, 2007 WL 858419, at *10 (D.S.D. Mar. 20, 2007).
Here, Shaw alleges facts sufficient to state a civil conspiracy claim under
42 U.S.C. § 1985(3). He alleges that defendants have “willfully participated in
the joint activity” of depriving him of his constitutional rights. See Docket 1
¶ 171. Thus, he alleges both deprivations of civil rights and that defendants
conspired to deprive him of those rights. See id. He alleges “intentional and
purposeful discrimination” on both religious and racial grounds. Id. ¶ 230.
Shaw’s § 1985(3) civil conspiracy claim survives § 1915A screening.
8. 	First Amendment Establishment Clause Claim
Shaw claims that defendants have violated his rights under the First
Amendment Establishment Clause. Id. ¶¶ 353-355. “[A]t a minimum, the
Constitution guarantees that government may not coerce anyone to support or
participate in religion or its exercise[.]” Lee v. Weisman, 505 U.S. 577, 587
(1992) (citing Lynch v. Donnelly, 465 U.S. 668, 678 (1984)). In order to have
standing to bring an Establishment Clause claim, a plaintiff may either have
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standing as a taxpayer or establish “an injury of direct and unwelcome
personal contact with the alleged establishment of religion.” Patel, 515 F.3d at
816 (citations and internal quotation omitted). “Prisoners may establish an
injury if they ‘allege they altered their behavior and had direct, offensive, and
alienating contact with’ a government-funded religious program.” Id. at 817
(quoting Ams. United for Separation of Church & State v. Prison Fellowship
Ministries, Inc., 509 F.3d 406, 419 (8th Cir. 2007)).
In Patel, the prisoner plaintiff alleged that the defendants only provided a
religious diet to Jewish inmates. Id. The Eighth Circuit found that because the
plaintiff sought accommodations for his own religious beliefs, he could not
bring an Establishment Clause claim, as “[a] successful Establishment Clause
claim would strike down any accommodation of religious beliefs in the prison's
meal plans, which would effectively eviscerate the remedy [the plaintiff] seeks
in his complaint.” Id. Similarly, Shaw seeks accommodation of his own
religious beliefs, rather than asking this court to bar defendants from providing
religious accommodations. See Docket 1 ¶ 375. Thus, Shaw’s Establishment
Clause claim is dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(1).
9. 	Denial of Medical Care Claims
Shaw brings claims for denial of medical care. Id. ¶¶ 356-358.
Construing his complaint liberally, Shaw brings claims for deliberate
indifference to serious medical needs in violation of his Eighth Amendment
right to be free from cruel and unusual punishment. See id.
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“[D]eliberate indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of pain’ . . . proscribed by
the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting
Gregg v. Georgia, 428 U.S. 153, 173 (1976)). “This is true whether the
indifference is manifested by prison doctors in their response to the prisoner’s
needs or by prison guards in intentionally denying or delaying access to
medical care or intentionally interfering with the treatment once prescribed.”
Id. at 104-05 (footnotes omitted). “This conclusion does not mean, however,
that every claim by a prisoner that he has not received adequate medical
treatment states a violation of the Eighth Amendment.” Id. at 105. “[A] prisoner
must allege acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Id. at 106. Allegations of negligence will
not suffice, nor will mere disagreement with treatment decisions. Jolly v.
Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (citing Estate of Rosenberg, 56
F.3d at 37).
The deliberate indifference standard includes both an objective and
subjective component. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.
1997) (citing Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997)). The
plaintiff “must demonstrate (1) that [he] suffered objectively serious medical
needs and (2) that the prison officials actually knew of but deliberately
disregarded those needs.” Id. (citing Coleman, 114 F.3d at 784). “A serious
medical need is ‘one that has been diagnosed by a physician as requiring
treatment, or one that is so obvious that even a layperson would easily
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recognize the necessity for a doctor’s attention.’ ” Coleman, 114 F.3d at 784
(quoting Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995). To be liable
for deliberately disregarding medical needs, “the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Farmer v. Brennan, 511
U.S. 825, 837 (1994).
Here, Shaw alleges facts sufficient to state a claim for deliberate
indifference to serious medical needs in violation of his Eighth Amendment
right to be free from cruel and unusual punishment. Shaw alleges that he
suffers from several serious medical conditions. Docket 1 ¶ 234. He also alleges
that defendants are and have been aware of and deliberately indifferent to his
medical needs. See id. ¶¶ 236-240. Some of Shaw’s claims, such as his desire
for all-natural treatments and foods, may be mere disagreement with treatment
decisions. See id. ¶ 239; see also Jolly, 205 F.3d at 1096. But Shaw also
alleges that defendants have failed to address medical needs of which they are
aware. See, e.g., Docket 1 ¶¶ 146, 253-255 (alleging that defendants ignored
warnings from outside doctors that Shaw was at increased risk of coma and
death because of his diabetes, that defendants cancelled Shaw’s physical
therapy in order to punish him, and that defendants worsened Shaw’s GERD
symptoms by crushing his medication and denying him GERD treatments).
Thus, Shaw’s Eighth Amendment deliberate indifference to serious medical
needs claims survive § 1915A screening.
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10. 	State-Law Medical Malpractice Claim
Shaw brings a claim for state-law medical malpractice. Id. ¶¶ 356-358.
This court has supplemental jurisdiction over Shaw’s state-law medical
malpractice claim under 28 U.S.C. § 1367(a). “In order to prevail in a suit
based on negligence, a plaintiff must prove duty, breach of that duty,
proximate and factual causation, and actual injury.” Hanson v. Big Stone
Therapies, Inc., 916 N.W.2d 151, 158 (S.D. 2018) (quoting Hamilton v.
Sommers, 855 N.W.2d 855, 861 (S.D. 2014)). “In a suit for professional
negligence, the plaintiff must prove that the professional deviated from the
required standard of care.” Id. (citing Magbuhat v. Kovarik, 382 N.W.2d 43, 46
(S.D. 1986)).
Shaw alleges facts sufficient to state a claim for medical malpractice
under South Dakota state law. He alleges that defendants are in charge of his
medical care and owe him a duty, that they failed to provide medical care and
breached that duty, and that he has suffered harm as a result of this breach.
See Docket 1 ¶¶ 234, 236-240, 246, 252-257. Thus, Shaw’s state-law medical
malpractice claim survives § 1915A screening.
11. 	Eighth Amendment Conditions of Confinement Claim
Construing his complaint liberally, Shaw brings a claim for conditions of
confinement in violation of his Eighth Amendment right to be free from cruel
and unusual punishment. Id. ¶¶ 356-358.
“[T]he Constitution ‘does not mandate comfortable prisons’; it prohibits
‘inhumane ones.’ ” Williams v. Delo, 49 F.3d 442, 445 (8th Cir. 1995) (quoting
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Farmer, 511 U.S. at 832). The United States Supreme Court has clarified that
only “extreme deprivations” that deny “the minimal civilized measure of life’s
necessities are sufficiently grave to form the basis of an Eighth Amendment
violation.” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citation and internal
quotation omitted). The Supreme Court has listed as basic human needs “food,
clothing, shelter, medical care, and reasonable safety[.]” Helling v. McKinney,
509 U.S. 25, 32 (1993) (internal quotation omitted).
In order to prevail on an Eighth Amendment conditions of confinement
claim, a prisoner must prove that: (1) objectively, the deprivation was
sufficiently serious to deprive him of the minimal civilized measures of life's
necessities, or to constitute a substantial risk of serious harm to his health or
safety; and (2) subjectively, the defendants were deliberately indifferent to the
risk of harm posed by the deprivation. Simmons v. Cook, 154 F.3d 805, 807
(8th Cir. 1998) (citing Farmer, 511 U.S. at 834). An Eighth Amendment
challenge to conditions of confinement must examine the totality of the
circumstances. Villanueva v. George, 659 F.2d 851, 854 (8th Cir. 1981). Even if
no single condition would be unconstitutional in itself, the cumulative effect of
prison conditions may subject inmates to cruel and unusual punishment. See
id.; see also Tyler v. Black, 865 F.2d 181, 183 (8th Cir. 1989).
Here, Shaw alleges facts sufficient to state a claim for conditions of
confinement in violation of his Eighth Amendment right to be free from cruel
and unusual punishment. Shaw alleges that defendants took his clothes,
mattress, pillow, hot food, and toiletries, that his cell is illuminated 24 hours a
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day, that defendants have used mace on him while he was in his cell, that he
was denied showers and safety protocols during the COVID-19 outbreak, and
that dust and noise from construction have caused him respiratory issues, eye
irritation, earaches, and headaches. Docket 1 ¶¶ 243, 245, 248-250. The
cumulative effect of these conditions, as alleged, is sufficiently serious to meet
the standard for a constitutional deprivation. See Simmons, 154 F.3d at 807.
Thus, Shaw’s Eighth Amendment conditions of confinement claim survives
§ 1915A screening.
12. 	ADA Claims
Shaw brings claims under Title II and Title V of the ADA. Id. ¶¶ 359-361.
There are various means of discrimination under the ADA, including
intentional discrimination, retaliation, and the failure to make reasonable
accommodations. See Peebles v. Potter, 354 F.3d 761, 765 (8th Cir. 2004);
Rinehart v. Weitzell, 964 F.3d 684, 689 (8th Cir. 2020). Title II of the ADA
states that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132; see also Mason v. Corr.
Med. Servs., Inc., 559 F.3d 880, 886 (8th Cir. 2009). To succeed on an
intentional discrimination claim or a failure to provide reasonable
accommodations claim, Shaw must show:
(1) that he is a qualified individual with a disability; (2) that he was
excluded 	from 	participation 	in 	or 	denied 	the 	benefits 	of 	the
[penitentiary’s] services, programs, or activities, or was otherwise
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subjected to discrimination by the [penitentiary]; and (3) that such
exclusion, denial of benefits, or other discrimination was by reason
of his disability.
Baribeau v. City of Minneapolis, 596 F.3d 465, 484 (8th Cir. 2010).
Construing his complaint liberally, Shaw brings claims for both
intentional discrimination and failure to provide reasonable accommodations
under Title II of the ADA. See Docket 1 at 359-361. Here, Shaw alleges facts
sufficient to state a claim for intentional discrimination under the ADA.
Intentional discrimination is also known as disparate treatment. Peebles, 354
F.3d at 765. “In disparate treatment cases, a similarly situated disabled
individual is treated differently because of his disability than less- or non-
disabled individuals. The key element is discriminatory intent.” Id. at 766
(citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000)).
Shaw’s diabetes and health conditions render him a qualified individual with a
disability. See 42 U.S.C. § 12102(1) (defining “disability” under the ADA). Shaw
alleges defendants intentionally discriminated against him because of his
disability. Docket 1 ¶ 260. Among other allegations, he claims that certain
State Penitentiary programming, such as the availability of Earned Discharge
Credits through work and education, are intentionally denied to him. See id.
¶ 268. 	Thus, Shaw’s Title II ADA claim for intentional discrimination survives
§ 1915A screening.
Shaw alleges facts sufficient to state a claim for failure to provide
reasonable accommodations under Title II of the ADA. He alleges that he was
excluded from obtaining medication and participating in educational programs,
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and these are benefits under Title II. Mason, 559 F.3d at 886 (citing Pa. Dep’t of
Corr. v. Yeskey, 524 U.S. 206, 210 (1998)). In order to show that the exclusion
was “by reason of his disability[,]” Shaw need not show that the exclusion was
motivated by a discriminatory purpose, only that his exclusion was caused by
his disability. See Layton v. Elder, 143 F.3d 469, 470-72 (8th Cir. 1998)
(finding that wheelchair-using plaintiff had been “excluded . . . because of his
disability” when he could not attend a meeting on the inaccessible second floor
of the courthouse, even though there was no showing of intent to discriminate).
Shaw alleges that defendants have failed to provide him with several ADA
accommodations. E.g., Docket 1 ¶¶ 269-280, 284. Thus, Shaw’s failure to
provide reasonable accommodations claim under Title II of the ADA survives
§ 1915A screening.
Title V of the ADA prohibits discrimination against “any individual
because such individual has opposed any act or practice made unlawful by [the
ADA] or because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under
[the ADA.]” 42 U.S.C. § 12203(a). To succeed on a retaliation claim under the
ADA, a plaintiff must establish that “(1) he engaged in statutorily protected
activity; (2) adverse action was taken against him; and (3) a causal connection
exists between the adverse action and [the] protected activity.” Rinehart, 964
F.3d at 689. Here, Shaw alleges facts sufficient to state a claim for retaliation
in violation of Title V of the ADA. He claims that defendants have further
discriminated against him, denied him accommodations, and otherwise
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punished him for filing grievances and lawsuits alleging violations of his rights
under the ADA. E.g., Docket 1 ¶ 262. Thus, Shaw’s retaliation claim under Title
V of the ADA survives § 1915A screening.
13. 	Rehabilitation Act Claims
Shaw brings claims for violations of the Rehabilitation Act. Id. ¶¶ 359-
361. Under the Rehabilitation Act,
[n]o otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving Federal
financial assistance or under any program or activity conducted by
any Executive agency[.]
29 U.S.C. § 794(a).
To establish a prima facie claim under the Rehabilitation Act, the
plaintiff must show that “1) he is a person with a disability as defined by
statute; 2) he is otherwise qualified for the benefit in question; and 3) he was
excluded from the benefit due to discrimination based upon disability.”
Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999) (explaining that the
Rehabilitation Act follows the same analysis as claims under the Americans
with Disabilities Act but with the additional element that the program or
activity receives federal funding); see also Gorman v. Bartch, 152 F.3d 907,
911-12 (8th Cir. 1998). This court has held that the Rehabilitation Act does not
allow individual liability. See Landman v. Kaemingk, 2020 WL 3608288, at *2
(D.S.D. July 2, 2020).
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Shaw alleges facts sufficient to state claims under the Rehabilitation Act.
He alleges that defendants receive federal funding. Docket 1 ¶ 282. But
because the Rehabilitation Act does not allow individual liability, Shaw cannot
bring Rehabilitation Act claims against individual defendants in their
individual capacities. Thus, Shaw’s Rehabilitation Act claims against individual
defendants in their individual capacities are dismissed without prejudice
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), but his Rehabilitation Act
claims against individual defendants in their official capacities and against all
other remaining defendants survive § 1915A.
14. 	South Dakota Human Relations Act Claim
Shaw brings a claim under the South Dakota Human Relations Act. See
id. ¶¶ 359-361. This court has supplemental jurisdiction over Shaw’s state-law
Human Relations Act claim under 28 U.S.C. § 1367(a). Under SDCL § 20-13-
24,
[i]t is an unfair or discriminatory practice for any person engaged in
the provision of public services, by reason of . . . religion [or]
disability . . . to fail or refuse to provide to any person access to the
use 	of 	and 	benefit 	thereof, 	or 	to 	provide 	adverse 	or 	unequal
treatment to any person in connection therewith.
A person “claiming to be aggrieved by a discriminatory or unfair practice may
file [a charge] with the Division of Human Rights[.]” SDCL § 20-13-29. The
South Dakota Supreme Court has held that “administrative exhaustion with
the Division is required with all claims that fall within its jurisdiction.”
Landman, 2020 WL 3608288, at *2 (quoting O’Brien v. W. Dakota Tech. Inst.,
670 N.W.2d 924, 928 (S.D. 2003)). Further, “[f]ailure to exhaust administrative
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remedies where required is a jurisdictional defect.” Id. (alteration in original)
(quoting S.D. Bd. of Regents v. Heege, 428 N.W.2d 535, 539 (S.D. 1988)).
Here, Shaw has made no showing that he has exhausted his
administrative remedies with the Division of Human Rights. See Docket 1
¶¶ 258-287. In Landman, this court rejected the plaintiff’s argument that
South Dakota Human Relations Act claims did not need to be “exhaust[ed]
administratively within the state beyond DOC exhaustion.” Landman, 2020 WL
3608288, at *2 (internal quotation omitted). Although Shaw has attempted to
exhaust his claim within the DOC through the prison grievance process, he is
required to first bring his South Dakota Human Relations Act claim before the
Division of Human Rights. See id. Thus, Shaw’s South Dakota Human
Relations Act claim is dismissed without prejudice under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
15. 	Right to Receive Mail Claim
Shaw brings a claim for violation of his right to receive mail. Docket 1
¶¶ 362-364. Construing his complaint liberally, Shaw brings a claim for
violation of his First Amendment free speech right to send and receive mail. See
id. Shaw challenges the State Penitentiary mail policy both facially and as
applied. Id. ¶ 293.
“The fact of confinement and the needs of the penal institution impose
limitations on constitutional rights, including those derived from the First
Amendment, which are implicit in incarceration.” Jones v. N.C. Prisoners’ Lab.
Union, Inc., 433 U.S. 119, 125 (1997). “While prisoners retain their
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constitutional rights, limitations may be placed on the exercise of those rights
because of the needs of the penal system.” Kaden v. Slykhuis, 651 F.3d 966,
968 (8th Cir. 2011) (citing Turner v Safley, 482 U.S. 78, 84-85 (1987). In
Turner, the Supreme Court held that prison rules and restrictions on First
Amendment rights are constitutional only “if [they are] reasonably related to
legitimate penological interests.” 482 U.S. at 89. The Eighth Circuit has applied
Turner’s four-factor test to prison regulations regarding mail:
(1) 	whether 	there 	is 	a 	valid 	rational 	connection 	between 	the
regulation and the legitimate government interest it purports to
further; 	(2) 	whether 	the 	inmate 	has 	an 	alternative 	means 	of
exercising 	his 	constitutional 	right; 	(3) 	the 	impact 	that
accommodation 	of 	the 	inmate’s 	right 	would 	have 	upon 	others,
including inmates as well as non-inmates; and (4) the absence of a
ready alternative to the regulation.
Thongvanh v. Thalacker, 17 F.3d 256, 259 (8th Cir. 1994). This standard
applies to both incoming and outgoing mail. Id.
Shaw alleges facts sufficient to state a claim for deprivation of his First
Amendment free speech right to send and receive mail. He alleges that medical
and religious books that should fall under exceptions to the State Penitentiary’s
obscenity policy are still rejected. Docket 1 ¶¶ 291-292. Further, he alleges that
defendants have altered return addresses on his outgoing mail and stolen his
incoming mail. Id. ¶ 298. Thus, Shaw’s First Amendment right to send and
receive mail claim survives § 1915A screening.
16. 	Fourteenth Amendment Procedural Due Process Claims
Shaw brings claims for violation of his Fourteenth Amendment due
process rights. Id. ¶¶ 365-367. Construing his claim liberally, Shaw alleges
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that defendants have violated his procedural due process rights by denying
grievances out of retaliation, failing to properly investigate disciplinary issues,
failing to provide notice of charges in disciplinary reports, and failing to provide
information necessary to challenge disciplinary reports. Id. ¶¶ 320, 323-325.
a. 	Grievance Process Claim
“While a violation of a state-created liberty interest can amount to a
violation of the Constitution, not every violation of state law or state-mandated
procedures is a violation of the Constitution.” Buckley v. Barlow, 997 F.2d 494,
495 (8th Cir. 1993) (per curiam) (holding that a refusal to process grievances
alone did not state a constitutional deprivation). In Buckley, the Eighth Circuit
explained that a prison grievance procedure “is a procedural right only, it does
not confer any substantive right upon the inmates. Hence, it does not give rise
to a protected liberty interest requiring the procedural protections envisioned
by the [F]ourteenth [A]mendment.” Id. (internal quotation omitted); see also
King v. Houston, 556 F. App’x 561, 563 (8th Cir. 2014) (per curiam) (citing
Buckley for the proposition that “prison officials’ failure to process or
investigate grievances, without more, is not actionable under § 1983”).
Here, Shaw alleges that the way grievances are processed or remedied
violates his due process rights, but this alone does not rise to the level of a
constitutional violation. Thus, Shaw’s Fourteenth Amendment procedural due
process claim regarding the grievance process is dismissed without prejudice
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
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b. 	Disciplinary Hearing Process Claim
The Eighth Circuit has explained that the process due for a prison
disciplinary hearing is “advance notice of the violation, an opportunity to be
heard, and a written statement of the evidence relied on and the reasons for
the disciplinary action.” Holt v. Caspar, 961 F.2d 1370, 1372 (8th Cir. 1992)
(citing Wolff v. McDonnell, 418 U.S. 539 (1974)). “It is axiomatic that due
process requires fair notice of prohibited conduct before a sanction can be
imposed. . . . This principle applies within the prison setting.” Williams v. Nix, 1
F.3d 712, 716 (8th Cir. 1993) (citations omitted).
Here, Shaw alleges facts sufficient to state a claim for violation of his
Fourteenth Amendment procedural due process rights regarding the
disciplinary hearing process. He alleges that he has been found guilty of
disciplinary infractions without proper evidence and that the DOC does not
provide sufficient notice of disciplinary charges. Docket 1 ¶¶ 323-325. Thus,
Shaw’s Fourteenth Amendment procedural due process claim regarding the
disciplinary hearing process survives § 1915A screening.
17. 	Fourteenth Amendment Substantive Due Process Claim
Shaw brings a claim for violations of his substantive due process rights
under the Fourteenth Amendment. Id. ¶¶ 365-367. He claims that his case is
“truly egregious and extraordinary” and thus involves substantive due process
violations. Id. ¶ 322.
In order for Shaw to establish a substantive due process violation, he
must allege “(1) that the official violated one or more fundamental
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constitutional rights, and (2) that the conduct of the executive official was
shocking to the contemporary conscience.” Flowers v. City of Minneapolis, 478
F.3d 869, 873 (8th Cir. 2007) (citations and internal quotation omitted).
“[F]undamental rights are those ‘deeply rooted in this Nation’s history and
tradition, and implicit in the concept of ordered liberty, such that neither
liberty nor justice would exist if they were sacrificed.’ ” Id. (quoting Terrell v.
Larson, 396 F.3d 975, 978 n.1 (8th Cir. 2005) (en banc)). “[T]he state action
must be ‘truly egregious and extraordinary’ to shock the conscience . . . .”
Livers v. Schenck, 700 F.3d 340, 351 (8th Cir. 2012) (quoting Winslow v. Smith,
696 F.3d 716, 735-36 (8th Cir. 2012)). “Whether conduct shocks the
conscience is a question of law.” Folkerts v. City of Waverly, 707 F.3d 975, 980
(8th Cir. 2013) (citing Terrell, 396 F.3d at 981).
Because a wide variety of official conduct may cause injury, a court
must first determine the level of culpability the § 1983 plaintiff must
prove to establish that the defendant’s conduct may be conscience
shocking. Mere negligence is never sufficient. Proof of intent to harm
is 	usually 	required, 	but 	in 	some 	cases, 	proof 	of 	deliberate
indifference, an intermediate level of culpability, will satisfy this
substantive 	due 	process 	threshold. 	The 	deliberate 	indifference
standard is sensibly employed only when actual deliberation is
practical. By contrast, the intent-to-harm standard most clearly
applies in rapidly evolving, fluid, and dangerous situations which
preclude the luxury of calm and reflective deliberation.
Id. at 980-81 (cleaned up).
Shaw has alleged sufficient facts to state a claim for violation of his
substantive due process rights. The incidents described by Shaw are not
“rabidly evolving, fluid, and dangerous situations” but instead those where
“actual deliberation is practical.” See id. at 981 (quoting Terrell, 396 F.3d at
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978). As such, the deliberate indifference standard applies to Shaw’s
substantive due process claims. Although the incidents alleged, taken
individually, may not rise to the level of conscience shocking, this court cannot
say that they do not reach that level cumulatively. Thus, Shaw’s Fourteenth
Amendment substantive due process claim survives § 1915A screening.
18. 	First Amendment Right to Access the Courts Claims
Shaw brings claims for violation of his First Amendment right to access
the courts. Docket 1 ¶¶ 368-370. He claims that defendants have thrown away
his legal work, prevented him from filing grievances, provided inadequate legal
assistance through the available technology, monitored his legal research,
prevented him from filing lawsuits, prevented him from mailing legal mail,
prevented him from accessing legal materials, and prevented him from
challenging his parole eligibility. Id. ¶¶ 326, 328-337. “The Constitution
guarantees prisoners a right to access the courts.” White v. Kautzky, 494 F.3d
677, 679 (8th Cir. 2007). To succeed on a claim for denial of access to the
courts, a plaintiff must show that he suffered actual injury as a result of the
defendants’ actions. Lewis v. Casey, 518 U.S. 343, 349 (1996). In order to
satisfy the actual injury requirement, a plaintiff must “demonstrate that a
nonfrivolous legal claim had been frustrated or was being impeded.” Johnson v.
Missouri, 142 F.3d 1087, 1089 (8th Cir. 1998) (quoting Casey, 518 U.S. at
353).
Shaw alleges facts sufficient to state claims for violation of his First
Amendment right to access the courts. Specifically, he alleges that defendants’
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actions prevented him from filing a supplemental complaint in his previous
federal lawsuits, from filing a medical malpractice suit in state court, and from
challenging his parole eligibility. Docket 1 ¶¶ 332, 334, 336. Thus, he alleges
actual injuries under Johnson. See 142 F.3d at 1089. Shaw’s First Amendment
access to the courts claims survive § 1915A screening.
19. 	First Amendment Retaliation Claims
Shaw claims that defendants have retaliated against him in violation of
his First Amendment rights. Id. ¶¶ 371-373. He claims that all of defendants’
alleged actions were retaliation against him for attempting to “grievance and
litigate these claims[.]” Id. ¶ 372.
To allege a First Amendment retaliation claim, a plaintiff must “show (1)
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)). “[T]he plaintiff must show the official took the adverse action
because the plaintiff engaged in the protected [activity].” Revels, 382 F.3d at
876. “The filing of a prison grievance, like the filing of an 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).
Shaw alleges facts sufficient to state First Amendment retaliation claims.
Prison grievances and inmate lawsuits are protected activities under Jacks. Id.
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The adverse actions alleged by Shaw, including restriction of his ability to
exercise his religion and refusal to treat medical issues, would chill a person of
ordinary firmness from continuing to file grievances and lawsuits. See, e.g.,
Docket 1 ¶¶ 173-174, 237. Shaw alleges that these adverse actions were
motivated by his attempts to file grievances and lawsuits. Id. ¶ 372. Thus,
Shaw’s First Amendment retaliation claims survive § 1915A screening.
Thus, it is ORDERED:
1. 	That Shaw’s claims against the DOH, DOC, Correctional Health
Services, and the Bureau of Information and Telecommunications
are dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 	1915A(b)(1). 	This 	does 	not 	include 	Shaw’s 	claims 	against
officers 	and 	employees 	of 	the 	DOH, 	DOC, 	Correctional 	Health
Services, and the Bureau of Information and Telecommunications.
2. 	That Shaw’s official capacity claims for money damages against all
defendants except Leidholt, Kaemingk, Young, Dreiske, Clark, and
Reisch 	are 	dismissed 	without 	prejudice 	under 	28 	U.S.C.
§§ 1915(e)(2)(B)(iii) and 1915A(b)(2).
3. 	That 	Shaw’s 	state-law 	breach 	of 	contract 	claims 	against 	all
defendants survive § 1915A screening.
4. 	That Shaw’s RLUIPA claim against all defendants survives § 1915A
screening.
5. 	That 	Shaw’s 	First 	Amendment 	free 	exercise 	claim 	against 	all
defendants survives § 1915A screening.
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6. 	That Shaw’s Fourteenth Amendment equal protection claim against
all defendants survives § 1915A screening.
7. 	That Shaw’s 42 U.S.C. § 1985(3) civil conspiracy claim against all
defendants survives § 1915A screening.
8. 	That Shaw’s First Amendment Establishment Clause claim against
all 	defendants 	is 	dismissed 	without 	prejudice 	under 	28 	U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
9. 	That Shaw’s Eighth Amendment deliberate indifference to serious
medical 	needs 	claims 	against 	all 	defendants 	survive 	§ 	1915A
screening.
10. 	That 	Shaw’s 	state-law 	medical 	malpractice 	claim 	against 	all
defendants survives § 1915A screening.
11. 	That Shaw’s Eighth Amendment conditions of confinement claim
against all defendants survives § 1915A screening.
12. 	That Shaw’s ADA claims against all defendants survive § 1915A
screening.
13. 	That Shaw’s Rehabilitation act claims against all defendants survive
§ 1915A screening.
14. 	That Shaw’s South Dakota Human Relations Act claim against all
defendants 	is 	dismissed 	without 	prejudice 	under 	28 	U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
15. 	That Shaw’s First Amendment free speech right to send and receive
mail claim against all defendants survives § 1915A screening.
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16. 	That Shaw’s Fourteenth Amendment procedural due process claim
regarding the grievance process against all defendants is dismissed
without 	prejudice 	under 	28 	U.S.C. 	§§ 1915(e)(2)(B)(ii) 	and
1915A(b)(1).
17. 	That Shaw’s Fourteenth Amendment procedural due process claim
regarding the disciplinary hearing process against all defendants
survives § 1915A screening.
18. 	That Shaw’s Fourteenth Amendment substantive due process claim
against all defendants survives § 1915A screening.
19. 	That Shaw’s First Amendment access to the courts claims against
all defendants survive § 1915A screening.
20. 	That 	Shaw’s 	First 	Amendment 	retaliation 	claims 	against 	all
defendants survive § 1915A screening.
21. 	That the Clerk shall send blank summons forms and Marshal
Service Forms (Form USM-285) to Shaw so that he may cause the
complaint to be served upon defendants Wasko, Sullivan, Fluke,
Ponto, Karberg, Schieffer, Cook, Benting, Reyes, Mertens-Jones,
Foley, Mousel, Badure, Hanson, Hughes, Archambeau, Ekren, Zoss,
Remfert, 	Timmerman, 	Tjeerdsma, 	Kaufenberg, 	Louie, 	Larson,
Anderson, Gastonguay, Bergman, Warntjes, Unknown DOC Agents,
Administrators and employees, Unknown Marlin’s Inc. d/b/a CMB
Management d/b/a Summit Food Services Catering Owner(s) and
Manager(s), 	Unknown 	Global 	Tellink 	Corporation 	Owner(s),
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Manager(s), Employees and/or Representative(s), Unknown Bureau
of 	Information 	and 	Telecommunications 	Owner(s), 	Manager(s),
Employee(s) 	and/or 	Representative(s), 	the 	Secretary 	of 	Health,
Unknown 	Department 	of 	Health 	Directors 	and/or 	Officers,
Unknown Correctional Health Services employees, Dr. Carpenter,
Dr. Regier, Dr. Sultana, Dr. Wallinga, Klawitter, Unknown SD Board
of 	Pardons 	and 	Paroles 	agents 	and/or 	members, 	Leidholt,
Kaemingk, Young, Drieske, Klemik, Pechous, Clark, and Reisch.
22. 	That Shaw shall complete and send the Clerk of Court a separate
summons 	and 	USM-285 	form 	for 	defendants 	Wasko, 	Sullivan,
Fluke, Ponto, Karberg, Schieffer, Cook, Benting, Reyes, Mertens-
Jones, 	Foley, 	Mousel, 	Badure, 	Hanson, 	Hughes, 	Archambeau,
Ekren, Zoss, Remfert, Timmerman, Tjeerdsma, Kaufenberg, Louie,
Larson, Anderson, Gastonguay, Bergman, Warntjes, Unknown DOC
Agents, 	Administrators 	and 	employees, 	Unknown 	Marlin’s 	Inc.
d/b/a CMB Management d/b/a Summit Food Services Catering
Owner(s) 	and 	Manager(s), 	Unknown 	Global 	Tellink 	Corporation
Owner(s), 	Manager(s), 	Employees 	and/or 	Representative(s),
Unknown Bureau of Information and Telecommunications Owner(s),
Manager(s), Employee(s) and/or Representative(s), the Secretary of
Health, Unknown Department of Health Directors and/or Officers,
Unknown Correctional Health Services employees, Dr. Carpenter,
Dr. Regier, Dr. Sultana, Dr. Wallinga, Klawitter, Unknown SD Board
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of 	Pardons 	and 	Paroles 	agents 	and/or 	members, 	Leidholt,
Kaemingk, Young, Drieske, Klemik, Pechous, Clark, and Reisch.
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 forms are not submitted as directed, the complaint
may be dismissed.
23. 	The 	United 	States 	Marshal 	Service 	shall 	serve 	the 	completed
summons, together with a copy of the complaint (Docket 1) and this
order, upon defendants Wasko, Sullivan, Fluke, Ponto, Karberg,
Schieffer, 	Cook, 	Benting, 	Reyes, 	Mertens-Jones, 	Foley, 	Mousel,
Badure, 	Hanson, 	Hughes, 	Archambeau, 	Ekren, 	Zoss, 	Remfert,
Timmerman, 	Tjeerdsma, 	Kaufenberg, 	Louie, 	Larson, 	Anderson,
Gastonguay, 	Bergman, 	Warntjes, 	Unknown 	DOC 	Agents,
Administrators and employees, Unknown Marlin’s Inc. d/b/a CMB
Management d/b/a Summit Food Services Catering Owner(s) and
Manager(s), 	Unknown 	Global 	Tellink 	Corporation 	Owner(s),
Manager(s), Employees and/or Representative(s), Unknown Bureau
of 	Information 	and 	Telecommunications 	Owner(s), 	Manager(s),
Employee(s) 	and/or 	Representative(s), 	the 	Secretary 	of 	Health,
Unknown 	Department 	of 	Health 	Directors 	and/or 	Officers,
Unknown Correctional Health Services employees, Dr. Carpenter,
Dr. Regier, Dr. Sultana, Dr. Wallinga, Klawitter, Unknown SD Board
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of 	Pardons 	and 	Paroles 	agents 	and/or 	members, 	Leidholt,
Kaemingk, Young, Drieske, Klemik, Pechous, Clark, and Reisch.
24. 	Defendants Wasko, Sullivan, Fluke, Ponto, Karberg, Schieffer, Cook,
Benting, Reyes, Mertens-Jones, Foley, Mousel, Badure, Hanson,
Hughes, 	Archambeau, 	Ekren, 	Zoss, 	Remfert, 	Timmerman,
Tjeerdsma, 	Kaufenberg, 	Louie, 	Larson, 	Anderson, 	Gastonguay,
Bergman, Warntjes, Unknown DOC Agents, Administrators and
employees, Unknown Marlin’s Inc. d/b/a CMB Management d/b/a
Summit Food Services Catering Owner(s) and Manager(s), Unknown
Global Tellink Corporation Owner(s), Manager(s), Employees and/or
Representative(s), 	Unknown 	Bureau 	of 	Information 	and
Telecommunications 	Owner(s), 	Manager(s), 	Employee(s) 	and/or
Representative(s), the Secretary of Health, Unknown Department of
Health Directors and/or Officers, Unknown Correctional 	Health
Services employees, Dr. Carpenter, Dr. Regier, Dr. Sultana, Dr.
Wallinga, Klawitter, Unknown SD Board of Pardons and Paroles
agents 	and/or 	members, 	Leidholt, 	Kaemingk, 	Young, 	Drieske,
Klemik, Pechous, Clark, and Reisch will serve and file an answer or
responsive pleading to the complaint on or before 21 days following
the date of service or 60 days if the defendants fall under Fed. R.
Civ. P. 12(a)(2) or (3).
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25. 	Shaw will keep the court informed of his current address at all times.
All parties are bound by the Federal Rules of Civil Procedure and by
the court’s Local Rules while this case is pending.
Dated August 16, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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