Challender v. Thom et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
FiLfcli
OCT 1 'I 2022
JOHN DANIEL CHALLENDER,
Plaintiff,
vs.
PENNINGTON COUNTY;SCO COLON,
Jailer Sheriff at Pennington County Jail, in
his individual and official capacity; LT.
HOUSTON,Lieutenant Sheriff at
Pennington County Jail, in her individual
and official capacity; SGT BOAL, Sergeant
Sheriff at Pennington County Jail, in his/her
individual and official capacity; KEY
THOM,Elected Sheriff at Pennington
County, in his individual and official
capacity; SCO COMRIE, Senior Officer
Sheriff at Pennington County Jail, in his
individual and official capacity; and CO
CASEY, Correctional Officer at Pennington
County Jail, in his individual and official
capacity;
Defendants.
5:22-CV-05034-CBK
MEMORANDUM OPINION AND
ORDER
Plaintiff, John Daniel Challender, a pretrial detainee at the Pennington County Jail
in Rapid City, South Dakota, filed a pro se civil rights lawsuit under 42 U.S.C. § 1983
and subsequently amended his complaint alleging the defendants violated his
constitutional rights. This Court granted Challender leave to proceed in forma pauperis
and now must screen Challender's complaint under 28 U.S.C. § I915A to determine
whether he has alleged a cognizable claim.
I. Factual Background
In his amended complaint, Challender contends that in March 2022, Corrections
Officer Colon "started derogating and instigating inmates (myself included)" during the
Jail's 6:00-7:15PM loekdown. After asking to see a sergeant, Challender claims that
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Colon disciplined him with a 48-hour lockdown and denied Challender due process.
Sergeant Boal rejected Challender's appeal of the diseiplinary aetion. Challender argues
that Sergeant Boal erred by not giving the proper hearing aecording to the Jail's
procedures. In his review, Boal amended the disciplinary rule violation from a "1.25" to
a "1.11." Lieutenant Houston also rejected Challender's appeal of the diseiplinary action
and did not grant the hearing that Challender alleges he was entitled to have. On April
23, 2022, Challender alleges that Senior Corrections Officer Comrie gave him 48 hours
oflockdown, denied his hour of recreation, and denied his half hour of dayroom time
because he reeeived food from another inmate. The following day, Challender alleges
that Correetions Offieer Casey gave him an additional diseiplinary lockdown for
apparently putting "eereal in [his] food," and eontends that Casey was acting on Comrie's
instructions. Challender argues that these punishments violate his rights under the Fifth,
Eighth, and Fourteenth Amendments to the United States Constitution. Challender
argues fiirther that his Eighth and Fourteenth Amendment rights were violated because he
was singled out to reeeive discipline among other inmates who were also trading food.
Challender also alleges that Houston took away his kosher diet in violation of his First
and Fourteenth Amendment rights.
Challender provided documentation showing that he exhausted his administrative
remedies with the Jail for the Mareh lockdown related disciplinary incidents and states
that he exhausted his administrative remedies for the remaining claims. All Challender's
claims against the Jail's employees are brought in their individual and official capacities.
Challender contends that Pennington County is liable on the basis of respondeat superior
and that Pennington County Sheriff Thom is liable in his individual and offieial capacity
for the actions ofthe Jail's employees.
II. 28 U.S.C. §1915A Screening Standard
The Prison Litigation Reform Act requires the Court to sereen prisoner complaints
and dismiss any portion of the complaint that is "(1)frivolous, malicious, or fails to state
a claim upon which relief may be granted or(2)seeks monetary relief from a defendant
who is immune from such relief." 28 U.S.C. § 1915A(b). An aetion is frivolous if"it
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lacks an arguable basis either in law or in fact." Aziz v. Burrows, 976 F.2d 1158, 1158
(8th Cir. 1992)(quoting Neitzke v. Williams. 490 U.S. 319, 324 (1989)).
A complaint states a claim upon which relief may be granted if it contains
sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its
face." Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 570(2007). To state a claim for relief,
a complaint must plead more than "legal conclusions" and "[t]hreadbare recitals of the
elements of a cause of action's elements, supported by mere conclusory statements."
Ashcroft V. Iqbal 556 U.S. 662, 678(2009)(citing Twomblv. 550 U.S. at 555). A
plaintiff must demonstrate a plausible claim for relief that "allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Id-
"[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but has not 'show[n]'—'that the
pleader is entitled to relief.'" Id. at 679 (citing Fed. R. Civ.P. 8(a)(2)).
The court is required to give the plaintiffs pro se complaint liberal construction
and identify any discernable cognizable claim. Solomon v. Petray, 795 F.3d 111, 787
(8th Cir. 2015). A court Has the duty to examine a pro se complaint "to determine ifthe
allegations provide for relief on any possible theory." Williams v. Willits, 853 F.2d 586,
588 (8th Cir. 1988). However, a court is not required to supply additional facts for a pro
se plaintiff, nor construct a legal theory that assumes facts which have not been
pleaded. See Stone v. Harrv. 364 F.3d 912, 914 f8th Cir. 2004). The Court must weigh
all factual allegations in favor ofthe plaintiff, unless the facts alleged are clearly
baseless. Denton v. Hernandez, 504 U.S. 25, 32(1992).
III. Discussion
A. Vicarious Liability Claims
Challender alleges that Pennington County and Sheriff Kevin Thom are
vicariously liable for the actions of the officials employed by the Jail. But a county
caimot be held liable under 42 U.S.C. § 1983 "solely because it employs a tortfeasor^—or,
in other words, a municipality cannot be held liable under § 1983 on a respondeat
superior theory." Monell v. Dep't of Soc. Servs.. 436 U.S. 658,691 (1978). "A county
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may be liable for a constitutional violation under § 1983 only if the violation resulted^
from a policy or custom of the municipality." Calgaro v. St. Louis Cntv., 919 F.3d 1054,
1058 (8th Cir. 2019)(quoting Monelh 436 U.S. at 694). Challender has failed to allege
any unconstitutional policy or custom ofthe county that the individual defendants were
enforcing that resulted in the violation of plaintiffs federal constitutional rights.
Challender's complaint clearly states that he is suing Pennington County only under the
theory ofrespondeat superior. Thus, the claim against Pennington County must be
dismissed.
On the same basis, Thom cannot be held personally liable for the acts of the Jail's
officials. "Liability under section 1983 requires a causal link to, and direct responsibility
for, the deprivation of rights. To establish personal liability of the supervisory
defendants,[the plaintiff] must allege specific facts of personal involvement in, or direct
responsibility for, a deprivation of his constitutional rights." Clemmons v. Armontrout,
477 F.3d 962, 967(8th Cir. 2007)[quoting Mavorga v. Missouri, 442 F.3d 1128, 1132
(8th Cir. 2006)(internal quotations and citations omitted)). Here, Challender does not
provide any specific facts alleging that Thom was personally involved in or directly
responsible for any constitutional violations. As such, the claim against Thom in his
personal capacity must be dismissed.
B. Official Capacity Claims
Challender's official capacity claims against Colon, Houston, Boal, Thom,
Comrie, and Casey are treated as redundant claims against Pennington County and should
be dismissed. "A plaintiff who sues public employees in their official, rather than
individual, capacities sues only the public employer and therefore must establish the
municipality's liability for the alleged conduct." Kellv v. Citv of Omaha, 813 F.3d 1070,
1075 (8th Cir. 2016). These claims are redundant because Challender also brought a
claim against Pennington County directly. See Veatch v. Bartels Lutheran Home,627
F.3d 1254, 1257(8th Cir. 2010). Thus, these claims against Colon, Houston, Boal,
Thom, Comrie, and Casey in their official capacities should be dismissed.
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C. Individual Capacity Claims
i. Fifth and Eighth Amendment Claims
At the outset, Challender cannot make a claim under the Fifth or Eighth
Amendments. Challender was a pretrial detainee at the time the complaint was filed, and
the Eighth Amendment only applies to inmates that have been convicted of a crime. The
Court takes judicial notice of the records of South Dakota's Unified Judicial System that
show Challender had seven pending cases against him in Pennington County around the
time he filed his complaint. As a pretrial detainee, any claim againstjail officials should
be assessed under the Fourteenth Amendment. See Steams v. Inmate Servs. Corp., 957
F.3d 902, 906 (8th Cir. 2020)(quoting Bell v. Wolfish. 441 U.S. 520, 535 (1979)).
Therefore, all claims made against the officials under the Eighth Amendment should be
dismissed. Similarly, the Due Process Clause ofthe Fifth Amendment Applies to the
United States, whereas the Due Process Clause ofthe Fourteenth Amendment applies to
the States. See Dusenbery v. United States, 534 U.S. 161, 167(2002). Challender was
incarcerated in a county jail and all the officials that Challender brings claims against are
county employees. Therefore, Challender's Fifth Amendment due process claim should
be dismissed.
11. Disciplinary and Grievance Procedure Claims
Challender's complaint alleges a violation of his Fourteenth Amendment due
process and equal protection rights based on a series of events that happened in March
and April of2020. Liberally construed, Challender appears to claim that the two 48-hour
"lockdowns" that he received were unfair punishments and that the officials did not give
him the hearings that he was entitled to for a major violation. He claims further that he
was improperly singled out and punished for trading food.
Challender alleges facts sufficient to show that he was punished after asking to
speak with a sergeant. The Supreme Court has explained that "a detainee may not be
punished prior to an adjudication of guilt in accordance with due process oflaw," but that
"[n]ot every disability imposed during pretrial detention amounts to 'punishment' in the
constitutional sense." Bell v. Wolfish. 441 U.S. 520, 535, 537(1979). There are two
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ways to determine whether a restriction or condition rises to the level of punishment. "A
plaintiff could show that the [restrictions] were intentionally punitive." Steams, 957 F.3d
at 907 (citing Bell, 441 U.S. at 538). "Altematively, if there is no expressly demonstrated
intent to punish, the plaintiff could also show that the [restrictions] were not reasonably
related to a legitimate governmental purpose or were excessive in relation to that
purpose." Id.(citing Bell, 441 U.S. at 538-39). "If[restrictions] are found to be arbitrary
or excessive, it is permissible to 'infer that the purpose of the governmental action is
punishment that may not constitutionally be inflicted upon detainees qua detainees.'" Id-
(quoting Bell, 441 U.S. at 539).
Viewing the facts in the light most favorable to the plaintiff, Challender claims
that he was put in a 48-hour lockdown for requesting to speak to a sergeant. Putting an
inmate in lockdown for making a simple request could be viewed as intentionally
punitive or arbitrary and excessive compared to any legitimate governmental purpose.
Whether the claim has merit cannot he resolved until the defendants file an answer.
On the other hand, Challender has not stated a claim for a violation of his
Fourteenth Amendment substantive or procedural due process rights for the denial of a
hearing for which he claims he was entitled to. To establish a substantive due process
violation, a plaintiff must allege "(1)that the official violated one or more fundamental
constitutional rights, and (2)that the condiict ofthe executive official was shocking to the
contemporary conscience." Flowers v. Citv of Minneapolis, 478 F.3d 869, 873 (8th Cir.
2007)(citations and internal quotation omitted). Challender has made no such showing.
Indeed,"an individual must have a constitutionally protected interest in life, liberty, or
property in order for the protections of procedural due process to attach." Mickelson v.
Cntv. ofRamsev, 823 F.3d 918, 930(8th Cir. 2016). Here, Challender alleges that he did
not receive the proper major hearings and appeals as required by the Jail's
procedures. But "[w]hile a violation of a state-created liberty interest can amount to a
violation ofthe Constitution, not every violation of state law or state-mandated
procedures is a violation ofthe Constitution." Bucklev v. Barlow, 997 F.2d 494, 495 (8th
Cir. 1993)(per curiam). A prison grievance procedure "is a procedural right only, it does
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not confer any substantive right upon the inmates. Hence, it does not give rise to a
protected liberty interest requiring the procedural protections envisioned by the
[FJourteenth [AJmendment." Id. Here, Challender's allegation alone does not rise to the
level of a constitutional violation. For that reason, this claim should be dismissed without
prejudice.
Challender also has not stated a elaim for the violation of his due process rights
based on his punishment for trading food with other inmates. To establish that his
48-hour lockdown was an unconstitutional punishment, Challender would have to show
that the poliey prohibiting trading food is not reasonably related to, or was excessive in
relation to, a legitimate governmental purpose. Steams. 957 F.3d at 907. But when
courts evaluate prison polieies, prison administrators are "accorded wide-ranging
deference in the adoption and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to maintain institutional
security." Bell 441 U.S. at 547. Here, Challender does not seem to eontest that he was
trading food with other inmates in violation ofthe Jail's policy. The Court finds that a
policy prohibiting inmates from trading food is reasonably related to, and not excessive in
relation to, the govemment's legitimate purpose in maintaining prison discipline and
security. Accordingly, this claim should be dismissed without prejudiee.
Challender fails to state a elaim for the violation of his equal protection rights
based on being singled out for punishment. The Eighth Circuit has explained that for a
prisoner to prevail on an equal protection claim, he "must show that he is treated
differently fi-om similarly-situated inmates and that the different treatment is based upon
either a suspect classification or a fundamental right." Patel v. U.S. Bureau ofPrisons,
515 F.3d 807, 815 (8th Cir. 2008)(eitations and internal quotation omitted). Because
Challender fails to allege that he is a member of a protected class or that his fundamental
rights have been violated, his allegation can only be constmed as raising a class-of-one
equal protection claim. Under that standard, he "must prove that the [defendant]
systematically and 'intentionally treated [him] differently from others similarly situated
and that there is no rational basis for the difference in treatment.'" Nolan v. Thompson,
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521 F.3d 983, 989-90(8th Cir. 2008)(quoting Village of Willowbrook v. Olech, 528
U.S. 562, 564(2000)(per curiam)); see also Phillips v. Norris, 320 F.3d 844, 848 (8th
Cir. 2003). "A elass-of-one plaintiff must 'provide a specifie and detailed aceount ofthe
nature ofthe preferred treatment ofthe favored class,' especially when the state actors
exercise broad discretion to balance a number oflegitimate considerations." Nolan. 521
F.3d at 990(quoting Jennings v. Citv of Stillwater. 383 F.3d 1199, 1214-15 (10th Cir.
2004)). Challender fails to allege any facts sufficient to meet this standard. Thus, his
equal protection claim for the selective enforcement ofthe Jail's rules should be
dismissed without prejudice.
iii. Kosher Diet
Challender claims that Lieutenant Houston took away his kosher diet in violation
of his First Amendment rights and both his due process and equal protection rights under
the Fourteenth Amendment. Of course,"[pjrison walls do not form a barrier separating
prison inmates from the protections of the Constitution." Turner v. Saflev. 482 U.S. 78,
84(1987). "Inmates clearly retain protections afforded by the First Amendment,
including its directive that no law shall prohibit the free exercise of religion." O'Lone v.
Estate of Shabazz. 482 U.S. 342, 348(1987)(internal citations omitted). "An inmate
who challenges the constitutionality of a prison regulation or policy that limits the
practice of religion must first establish that it infringes upon a sincerely held religious
belief." Hamilton v. Schriro, 74 F.3d 1545, 1550 (8th Cir. 1996). Here, Challender has
alleged no such beliefs. His complaint states nothing to show that he sincerely holds
religious beliefs entitling him to a kosher diet. Thus, he has not stated a claim for a
violation of his First Amendment rights and the claim should be dismissed without
prejudice
Challender also fails to allege facts sufficient to support a violation of the Equal
Protection Clause ofthe Fourteenth Amendment. Like his other equal protection claim,
Challender has not alleged that his differential treatment is based on a suspect
classification. Although "[rjeligion is a suspect classification," Patch 515 F.3d at 816,
Challender has failed to allege that he is part of a protected religious group or that he was
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treated differently from other similarly situated inmates. Beeause he fails to state a elaim
for a violation ofthe Equal Protection Clause, this claim should be dismissed without
prejudice.
Finally, Challender fails to allege facts sufficient to support a violation of either
his substantive due process or procedural due process rights under the Fourteenth
Amendment. Challender cannot sustain a claim for a violation of his substantive due
process rights because he fails to allege that an official violated a fundamental
constitutional right or demonstrated conduct that shocks the contemporary conscience.
See Flowers, 478 F.3d at 873. He also has not stated a elaim for a violation of his
procedural due process rights because he fails to identify a constitutionally protected
interest in life, liberty, or property. See Mickelson. 823 F.3d at 930. For that reason, this
claim should be dismissed without prejudice.
Now,therefore,
IT IS ORDERED:
1. Challender's claims against Pennington County are dismissed.
2. Challender's claims against Sheriff Thom in his individual and official
capacity are dismissed.
3. Challender's claims against Senior Corrections Officer Colon, Lieutenant
Houston, Sergeant Boal, Senior Corrections Officer Comrie, and Corrections
Officer Casey in their official capacities are dismissed.
4. Challender's claims against Lieutenant Houston, Sergeant Boal, Senior
Corrections Officer Comrie, and Corrections Officer Casey in their personal
capacities are dismissed.
5. Challender's Fourteenth Amendment due process claim against Colon survives
screening under 28 U.S.C. § 1915A. All other claims against Colon are
dismissed.
6. The Clerk of Court shall provide plaintiff a summons and USM-285 form for
the remaining defendant. Senior Corrections Officer Colon. Plaintiff shall
complete and return to the Clerk of Court the summons and USM-285 form
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within 30 days of the mailing of the form to him. Upon receipt ofthe
completed summons and USM-285 form, the Clerk of Court will issue the
summons.
7. The United States Marshals Service shall serve a copy ofthe summons and
amended complaint upon the remaining defendant pursuant to SDCL 15-6-
4(d)(8). All costs of service shall be advanced by the United States.
8. In the event plaintiff makes a recovery under the complaint, plaintiff shall
reimburse the government for any filing and service fees that have been
advanced.
9. Ifthe plaintiff fails to complete and return summons and the USM-285 form as
directed, this matter will be dismissed for failure to prosecute.
10. Challender's Motion to Appoint Counsel(Doc. 9)is denied as premature.
DATED this / of October, 2022.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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