Kurtenbach v. Codington County et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
FILE!
SEP 2 7 2022
MATTHEW C. KURTENBACH,
Plaintiff,
vs.
CODINGTON COUNTY,POLITICAL
SUBDIVISION OF THE STATE OF
SOUTH DAKOTA AND OWNS AND
OPERATES THE CODINGTON COUNTY
JAIL;IN OFFICIAL AND INDIVIDUAL
CAPACITY;BRAD HOWELL,SHERIFF
OF CODINGTON COUNTY AND FINAL
POLICY MAKER FOR CODINGTON
COUNTY SHERIFF'S OFFICE;IN
OFFICIAL AND INDIVIDUAL
CAPACITY; MATT BLACKWELDER,
CHIEF CORRECTIONAL OFFICER AT
THE CODINGTON COUNTY JAIL AND
FINAL POLICY MAKER FOR THE
CODINGTON COUNTY JAIL;IN
OFFICIAL AND INDIVIDUAL
CAPACITY; REBECCA REITER,
DEPUTY STATE'S ATTORNEY FOR THE
CODINGTON COUNTY STATE'S
ATTORNEY;IN OFFICIAL AND
INDIVIDUAL CAPACITY; AND TREVOR
SCHIMMEL,DEPUTY SHERIFF FOR
THE CODINGTON COUNTY SHERIFF'S
OFFICE;IN OFFICIAL AND
INDIVIDUAL CAPACITY;
Defendants.
I:20-CV-0I008-CBK
MEMORANDUM OPINION
AND ORDER
In this civil rights action filed pursuant to 42 U.S.C. § 1983, plaintiff Matthew
Kurtenbach contends that defendants Codington County, Brad Howell, Matt
Blackwelder, Rebecca Reiter, and Trever Schimmel violated his constitutional rights
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when he was eonfmed at the Codington County Detention Center in Watertown, South
Dakota. This matter is before the Court on defendants' Motion for Summary Judgment.
The motion should be granted in part and denied in part.
I. Background
When it comes to civil rights actions filed against government officials, Mr.
Kurtenbaeh is a frequent filer with diamond elite status. This particular case arises from
his pretrial detention in Codington County Detention Center. Kurtenbaeh was arrested
and briefly placed in the Hughes County Jail pursuant to pending state criminal charges.
With the suspicion that Kurtenbaeh was violating a no-contact condition of his bond by
speaking with the victim of an aggravated assault that he previously committed against
his girlfriend, Shanna Doyle,Deputy State's Attorney Rebeeea Reiter requested copies of
Kurtenbaeh's recorded phone calls. Those recordings confirmed that Kurtenbaeh was
speaking with Doyle. Shortly after listening to those calls, Kurtenbaeh was transferred to
the Codington County Detention Center.
When he arrived at the Detention Center on March 24, 2020, Kurtenbaeh asked to
place a phone call to a law firm. The Detention Center uses a system for inmate phone
calls that provides free and secure calls to legal counsel. An attorney's phone number
must be programmed into the system before the call is placed for it to be free and private.
If a number is not programmed as an attorney's phone number, the call is not free or
private and the system plays a message stating that all phone calls may be monitored or
recorded. Although most attorneys that are local to the Detention Center in the
Watertown, South Dakota, area already have their phone numbers programmed into the
system, Kurtenbaeh asked to speak with an attorney located in Sturgis, South Dakota,
across the state. As such, that number was not programmed into the system as an
attorney's phone number, and the call was recorded.
Kurtenbaeh states that the Detention Center's staff assured him that the call would
not be recorded. Matt Blackwelder, Chief Corrections Officer at the Detention Center,
stated that he has no recollection of Kurtenbaeh's request to program the attorney's
phone number into the system. He testified that it was his practice to verify an attomey's
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phone number before entering it into the system, and that the number was programmed
into the system the following day on March 25, 2020.
Because Reiter believed that Kurtenbacb was continuing to violate the no-eontact
order of bis bond, she requested copies of bis recorded phone calls from the Detention
Center. Deputy Sheriff Trever Sebimmel gave her a copy ofthe March 24, 2020, call and
they both listened to it. Before Kurtenbacb's conversation began, a message played
stating that the call is subject to recording and monitoring. Kurtenbacb was initially
confused as to why the call did not immediately go through as an attorney phone call. He
briefly spoke with a woman appearing to be a receptionist before asking her to transfer
bis call to a third party. The receptionist told Kurtenbacb that it was a collect call, and
that they were being charged by the minute. Kurtenbacb replied that be would be quick.
He then briefly spoke with another woman who seems to be bis girlfriend. It was later
determined that Kurtenbacb bad called a law firm. Nothing identifies the call as being to
a law firm, and at no point during the call does Kurtenbacb speak with an attorney or ask
for legal advice. Kurtenbacb was released from the Detention Center on approximately
May 17, 2020.
Kurtenbacb returned to the Detention Center on September 29, 2020, after being
extradited from Minnesota to face charges in South Dakota for possession of a forged -
instrument. State v. Kurtenbacb, A21-0526, 2021 WL 4259152, at *1 (Minn. Ct. App.
Sept. 20, 2021). Once be was back, Kurtenbacb filed a grievance about the Detention
Center's policy that prohibited inmates fi"om having any magazines. Blackwelder
rejected bis grievance and Sheriff Brad Howell rejected bis subsequent appeal.' Shortly
afterwards, the Detention Center changed the magazine policy. Kurtenbacb also filed a
grievance about the quantity offood provided to inmates. Blackwelder denied that
grievance as well, and Howell denied it on appeal. Kurtenbacb claimed that the prison
was not following its own menu when serving inmates meals and that be was losing
'Although Howell initially stated that Kurtenbacb never appealed bis grievance
concerning the magazine ban, be amended bis statement after Kurtenbacb produced a
document showing that Howell rejected bis appeal.
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weight as a result of not eating enough food. The Detention Center produced a menu that
shows it serves inmates three meals and an average of2,850 calories per day.
Kurtenbach also states that officials from the Detention Center refused to permit
him to appear in an online sentencing hearing in Yellow Medicine County, Minnesota, on
October 21, 2020. Because he missed the hearing, Kurtenbach was not sentenced until
April 5, 2021. The Minnesota court refused to grant him credit for the time served in the
Detention Center against his Minnesota sentence based on Minnesota law that
distinguishes between intrajurisdictional custody and interjurisdictional custody. See
Kurtenbach. 2021 WL 4259151, at *2. Since the Mirmesota court would not give him
credit, Kurtenbach claims that he was caused to serve approximately four and a half
months longer incarceration in Minnesota. Blackwelder states that the Detention Center
already had video court hearings scheduled at the same time for other inmates. The
Yellow Medicine County Court did not coordinate the time with the Detention Center
and had instead set the time unliterally. Due to the conflict, Blackwelder emailed
Kurtenbach's Minnesota lawyer and gave him several times to reschedule the missed
sentencing hearing. According to Blackwelder, Kurtenbach had a video hearing with the
Yellow Medicine County Court a week later on October 29, 2020.
II. Standard of Review
Summary judgment is proper where there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law. FED. R.Civ.P.
56; Bedford v. Doe. 880 F.3d 993, 996(8th Cir. 2018). The United States Supreme Court
has held that:
[T]he plain language of Rule 56(c) mandates the entry ofsummary
judgment. . . against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial. In such a situation,
there can be no genuine issue as to any material fact, since a complete
failure of proof concerning an essential element ofthe nonmoving party's
case necessarily renders all other facts immaterial.
Celotex Corp. v. Catrett. 477 U.S. 317, 322-23(1986)(internal quotations omitted).
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"As to materiality, the substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome ofthe suit under the governing law will
properly preclude the entry ofsummary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted." Anderson v. Liberty Lobbv, Inc.. 477 U.S. 242, 248
(1986). That is, to make summary judgment inappropriate, there must be a factual
dispute concerning facts the existence or nonexistence of which "must be outcome
determinative under prevailing law." Walls v. Petrohawk Props.. LP, 812F.3d621,625
(8th Cir. 2015)(quoting Grev v. City of Oak Grove. 396 F.3d 1031, 1034(8th Cir.
2005)).
Thus, in accordance with Rule 56(c), the party seeking summary judgment must
first identify grounds demonstrating the absence of a genuine issue of material
fact. Celotex Corp.. 477 U.S. at 323. Upon such a showing, the burden shifts to the non-
movant to present affirmative evidence, beyond the pleadings, showing that a genuine
issue of material fact exists. Anderson, 477 U.S. at 256-57. To meet its burden, the non-
movant"must do more than simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Rather, the nonmovant must be able to "show there is sufficient evidence to
support a jury verdict in their favor." Naf1 Bank of Com, v. Dow Chem. Co., 165 F.3d
602,607(8th Cir. 1999). After this exercise,"we view the facts and the inferences to be
drawn from them in the light most favorable to the nonmoving party." Northport Health
Servs. of Arkansas, LLC v. Posev, 930 F.3d 1027, 1030 (8th Cir. 2019). "To show a
genuine dispute of material fact, a party must provide more than conjecture and
speculation." Zaved v. Associated Bank, N.A., 913 F.3d 709, 720(8th Cir. 2019).
III. Analysis
Kurtenbach asserts various claims against the defendants using 42 U.S.C. § 1983.
He first claims that Reiter, Schimmel, and Codington County violated his constitutional
rights by listening to a phone call he made while in the Detention Center. He then claims
that Howell, Blackwelder, and Codington County violated his constitutional rights by
prohibiting all magazines in the Detention Center, failing to provide him with adequate
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food and nutrition, and prohibiting him from appearing by video conferenee for a
seheduled eourt hearing. All elaims against the individuals are made in their personal
and official capacities. Kurtenbach requests declaratory and injunctive relief in addition
to monetary damages.
At the outset, all Kurtenbach's claims for injunctive relief are moot because he is
no longer confined within the Detention Center. See Smith v. Hundlev, 190 F.3d 852,
855 (8th Cir. 1999)(inmate's claims for injunctive and declaratory reliefto improve
prison conditions are moot when he is transferred to another facility and is no longer
subject to those conditions). According to Kurtenbach, he was transferred to the South
Dakota State Penitentiary on January 6, 2021, after entering into a plea agreement. As
such, those claims should be dismissed.
The defendants assert qualified immunity against all claims made in their
individual capacities. "Qualified immunity shields public officials from liahility for civil
damages iftheir conduct did not violate clearly estahlished statutory or constitutional
rights of which a reasonable person would have known." Thurmond v. Andrews,972
F.3d 1007, 1011 (8th Cir. 2020)(quoting Dillard v. Q'Kellev. 961 F.3d 1048, 1052(8th
Cir. 2020)(en banc)(internal quotation marks omitted)). The test for qualified immunity
has two parts:(1)"whether the facts, viewed in the light most favorable to the plaintiff,
demonstrate the deprivation of a constitutional or statutory right; and (2) whether the
right was clearly established at the time ofthe deprivation." Ehlers v. Citv of Rapid City,
846 F.3d 1002, 1008 (8th Cir. 2016)(quoting Jones v. McNeese,675 F.3d 1158, 1161
(8th Cir. 2012)). The Court may analyze the two prongs of qualified immunity in either
order. Thurmond,972 F.3d at 1011. A "clearly established right is one that is
sufficiently clear that every reasonable official would have understood what he is doing
violates that right." Dillard. 961 F.3d at 1052(quoting Mullenix v. Luna, 577 U.S. 7, 11
(2015)). The Court does not "define clearly established law at a high level of generality."
Id. at 1052(quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152(2018)). "Rather, we look
for a controlling ease or a robust consensus of cases of persuasive authority. There need
not be a prior case directly on point, but 'existing precedent must have placed the
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statutory or constitutional question beyond debate.'" Id.(quoting Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011)).
a. The Recorded Phone Call
Kurtenbacb claims that Reiter and Schimmel violated the Fourth Amendment and
the Federal Wiretap Act when they listened to a recorded phone call that he made to a
law firm in an attempt to speak with his girlfriend. He does not argue that he was
intending to speak with his lawyer and does not claim the call was covered by attorney-
elient privilege.
i. Fourth Amendment Violation
There can be no Fourth Amendment violation unless a person has a
"constitutionally protected reasonable expectation of privacy." United States v.
Mclntvre. 646 F.3d 1107, 1111 (8th Cir. 2011) Cquoting Califomia v. Ciraolo. 476 U.S.
207, 211 (1986)). This protection extends to the recording of phone calls ifthe person
has a legitimate expectation of privacy. See Katz v. United States, 389 U.S. 347, 353
(1967). Although pretrial detainees do not forfeit all their Fourth Amendment rights, their
reasonable expectation of privacy while incarcerated is of a "diminished scope." Amzen
V. Palmer, 713 F.3d 369, 372(8th Cir. 2013)(quoting Bell v. Wolfish. 441 U.S. 520, 559
(1979)). Society recognizes that a prisoner's expectation of privacy will always yield to
the "paramount interest in institutional security." Hudson v. Palmer. 468 U.S. 517, 528
(1984). Moreover, an inmate impliedly consents to having his telephone conversations
taped when he knows that a policy of recording inmate calls exists. See United States v.
Eggleston. 165 F.3d 624, 626 (8th Cir. 1999); United States v. Horr. 963 F.2d 1124, 1126
(8th Cir. 1992).
Here, Kurtenbach cannot establish a violation of his Fourth Amendment rights
because he consented to having the call recorded. He appears to claim that the phone call
from the jail did not play a warning message stating that the call was being recorded. But
in the recording ofthe call, a warning clearly plays shortly before the conversation begins
stating,"this call is subject to recording and monitoring," and the call presents an option
to continue or disconnect. Kurtenbach continued the call and now argues that he did not
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hear the message because he put the phone down while the call was being accepted,
despite the warning being played a mere ten seconds before he began speaking. Even if
that were true, the circumstances surrounding the call show that Kurtenbach was aware
that it was being recorded. Kurtenbach admits familiarity with jail phone systems and the
requirement that attorney phone numbers must be entered into a system before they are
free and private. Here, as soon as the call went through, Kurtenbach questioned the
receptionist why the call did not immediately go through and was informed that it was a
collect call. Before the call was transferred, Kurtenbach acknowledged that the call was
not free and stated that he would be quick so that it would not cost a lot of money. Based
on these circumstances, he carmot now argue that he was unaware the call was being
recorded as a non-attorney phone call.
Kurtenbach quarrels with Reiter's reason for listening to his phone call, but her
reasoning does not determine whether there was a Fourth Amendment violation. He
states that Reiter's investigation for the violation of a no-contact condition of his bond
was invalid because the bond was terminated by the time he made the call to his
girlfriend. But Reiter did not need a valid reason to listen to Kurtenbach's call because it
was not protected by the Fourth Amendment. He additionally argues that because the
phone call was placed to a law firm,the Detention Center was forbidden from recording
it. But this misstates the Fourth Amendment reasonable expectation of privacy standard
and conflates the use ofthe recorded phone call with an attorney-client privilege violation
that Kurtenbach does not, and could not, assert. Accordingly, Summary Judgment on
Kurtenbach's claim against Reiter and Schimmel should be granted,
ii. Federal Wiretap Act Violation
Kurtenbach also claims that recording his call violated the Federal Wiretap Act
that prohibits the intentional interception of any wire, oral, or electronic communications.
See 18 U.S.C. § 2511. This claim fails for two reasons. First, under 18 U.S.C. §
251 l(2)(c), there is no violation if one ofthe parties to the call consents to its
interception. Like for his Fourth Amendment claim, Kurtenbach consented to the
recording ofthe call because based on the warning and circumstances, he understood that
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the call was not private. Second, the Act allows interception "by an investigative or law
enforcement officer in the ordinary course of his duties." 18 U.S.C. § 2510(5)(a)(ii). The
Seventh Circuit concluded that prison officials are "investigative or law enforcement
officers," and that when they record inmate phone calls "in accordance with established
prison routine," they are acting within the "ordinary course" oftheir duties. United States
V. Sababu, 891 F.2d 1308, 1329(7th Cir. 1989). The Eighth Circuit also recognized this
reasoning in Horr but affirmed the district court on the grounds of consent. 963 F.2d at
1126. Here, it is undisputed that officials were acting in accordance with established
prison routine when they recorded the call that was not properly placed to an attorney.
Therefore, this claim also falls within the § 2510(5)(a)(ii) exception. Summary Judgment
should be granted in favor of Reiter and Sehimmel.
b. Magazine Ban
Kurtenbach argues that the Detention Center's total ban on magazines violates his
First Amendment rights. In response, Howell and Blackwelder assert qualified
immunity. They concede that the ban violated the First Amendment but argue that the
right was not clearly established at the time ofthe violation.
Inmates do not automatically surrender their First Amendment rights upon
incarceration. Beard v. Banks, 548 U.S. 521, 528 (2006). But "the Constitution
sometimes permits greater restriction ofsuch rights in a prison than it would allow
elsewhere." Id. Restrictive prison regulations are permitted ifthey are "reasonably
related to legitimate penological interests and are not an exaggerated response to such
objectives." Id. at 528 (cleaned up)(quoting Turner v. Saflev, 482 U.S. 78, 87(1987)).
The clearly established test from Turner provides four factors relevant to the
reasonableness of a regulation at issue:
(1) whether there is "a valid, rational connection between the prison
regulation and the legitimate governmental interest put forward to justify
it";(2)"whether there are alternative means of exercising the right that
remain open to prison inmates";(3)"the impact accommodation ofthe
asserted constitutional right will have on guards and other inmates, and on
the allocation of prison resources generally";(4)and whether there exist
alternatives to accommodate the prisoner with a de minimis cost.
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Murchison v. Rogers, 779 F.3d 882, 887 (8th Cir. 2015)(quoting Turner, 482 U.S. at 89-
91).
The defendants argue that because there is no Supreme Court or Eighth Circuit
case involving a blanket ban on magazines, the right is not clearly established. It is true
that precedents about prisoner's First Amendment rights generally involve some sort of
nuaneed prohibition. In Turner, the prison regulation barred inmate to inmate
correspondence. 482 U.S. at 81-82. In Beard, the prison prohibited the most incorrigible
inmates in the long-term segregation unit access to all newspapers, magazines, and
personal photographs. 548 U.S. at 525-26. Eighth Circuit eases are similarly nuaneed.
In Murchison. the prison banned a single issue of Newsweek magazine. 779 F.3d at 885.
Sisnev v. Kaemingk involved a penitentiary's policy prohibiting possession of
pornography. S^ 15 F.4th 1181, 1188-89(2021). In Williams v. Brimever. 116 F.3d
351, 352-53 (8th Cir. 1997) and Murphv v. Mo.Dep't of Corrs.. 814 F.2d 1252, 1255
(8th Cir. 1987), the prisons barred access to white supremacist materials. Here, the 1
Detention Center's ban was not nuaneed at all. It banned all magazines, regardless of
their content, for all inmates in the Detention Center.
Eighth Circuit precedents indicate that a blanket ban on magazines is clearly
established as unconstitutional. In Murphv. the Court invalidated a total ban on Aryan
Nations materials received by prisoners because it was more restrictive than necessary to
protect prison security. 814 F.2d at 1257("A total ban on Aryan Nations materials is
more restrictive of prisoner first amendment rights than is necessary to maintain prison
security."). The Court ruled again that a blanket ban on white supremacist publications
was unconstitutional in Williams for similar reasons. 116 F.3d at 354. See also Nichols
V. Nix. 16 F.3d 1228 (8th Cir. 1994)(per curiam)(unpublished opinion)(affirming
district court finding that a total ban on materials received from white supremacist group
violated the First Amendment). The defendants argue!that the law was not clearly
established because these precedents involve mail, not magazines. But it is difficult to
see how an unconstitutional ban on specific white supremacist materials would not
clearly establish that a blanket ban on all magazines, irrespective of their content, is also
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unconstitutional. The defendants contend that the factored approach from Turner means
that there are no bright-line rules or clearly established law, but fundamentally miss the
point ofthe test. Turner clearly establishes that restrictions must reasonably relate to
penological interests while not being an exaggerated response. Although Turner is a
high-level test, this case involves a high-level ban. Moreover, the defendants do not
argue that their policy had any relation to penological interests whatsoever.^ A total ban
on a broad category of materials without regard to their content for seemingly no reason
is an exaggerated response, which Eighth Circuit precedents reflect. The Detention
Center's change to its policy after Kurtenbach's complaint also suggest that a reasonable
official would understand that the policy was an exaggerated response. See Williams.
116 F.3d at 354 ("Prison authorities, in other words, have not been eonsistent in rejecting
these materials, a fact which leads us to believe that rejection, when it occurred, was an
exaggerated response."). Because the law was clearly established that the Detention
Center's blanket ban on magazines violated the First Amendment, the defendants' motion
for Summary Judgment on the basis of qualified immunity should be denied.
Kurtenbaeh's request for monetary relief is limited by the Prison Litigation
Reform Act. 42 U.S.C. § 1997e(e) requires a prisoner to show a physical injury to
recover compensatory damages. McAdoo v. Martin. 899 F.3d 521, 525 (8th Cir. 2018)
(citing Roval v. Kautzkv. 375 F.3d 720, 723 (8th Cir. 2004)). As such, Kurtenbach
cannot recover eompensatory damages for a violation ofthe First Amendment. See
Roval. 375 F.3d at 723 (holding that § 1997e(e) applies to First Amendment violations).
Kurtenbach's recovery is limited to nominal damages for the days that he was confined in
the Detention Center without access to magazines. See id. at 723-24 (holding that
awarding $1.00 in nominal damages was appropriate relief for a First Amendment
violation brought under § 1983). Kurtenbach "may not recover some indescribable and
^ It is difficult to reconcile the defendants' coneession that their policy is unconstitutional
with their argument that the right was not clearly established. Failing to make a colorable
argument that the policy is constitutional appears as a tacit admission in this case that the
law was clearly established.
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indefinite damage allegedly arising from a violation of his constitutional rights." Id. at
724. Kurtenbach may also recover punitive damages ifthe facts show that the
"defendant's conduct is shown to be motivated by evil motive or intent, or when it
involves reckless or callous indifference to the federally protected rights of others." Id.
(quoting Smith v. Wade,461 U.S. 30, 56 (1983)).
c. Inadequate Diet
Kurtenbach claims that Howell and Blackwelder violated his constitutional rights
by failing to provide adequate food and nutrition while he was confined within the
Detention Center. In response, Howell and Blackwelder assert qualified immunity and
deny that there was a constitutional violation or that there was a clearly established right.
The claim is properly analyzed under the Fourteenth Amendment rather than the
Eighth Amendment because Kurtenbach was a pretrial detainee at the time of the alleged
violation. S^ Steams v. Inmate Servs. Corp.. 957 F.3d 902, 906 (8th Cir. 2020)(quoting
Bell, 441 U.S. at 535 n.l6). Pretrial detainees, like all prisoners, have a constitutional
right to nutritionally adequate food. Wishon v. Gammon. 978 F.2d 446,449(8th Cir.
1992); see also Burgin v. Nix, 899 F.2d 733 (8th Cir. 1990)("One constitutional
protection retained by the prisoner is the right to an adequate diet."). The appropriate
standard of culpability for all claims that prison officials failed to provide pretrial
detainees with adequate food, clothing, shelter, medical care, and reasonable safety is
deliberate indifference. Butler v. Fletcher, 465 F.3d 340, 345 (8th Cir. 2006). Although
a pretrial detainee's claim is analyzed under the Fourteenth Amendment,this is the same
level of protection that convicted inmates receive under the Eighth Amendment. See id.
("Pretrial detainees and convicted inmates, like all persons in custody, have the same
right to these basic human needs. Thus, the same standard of care is appropriate."). A
prisoner can show a violation of his constitutional rights by showing "that the food he
was served was nutritionally inadequate or prepared in a manner presenting an immediate
danger to his health, or that his health suffered as a result ofthe food." Ingrassia v.
Schafer, 825 F.3d 891, 897(2016)(quoting Wishon,978 F.2d at 449). To show
deliberate indifference, Kurtenbach must show that the defendants "failed to act despite
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. . . knowledge of a substantial risk of serious harm." Id.(citing Farmer v. Brennan, 511
U.S. 825, 842(1994)).
The Court finds that there are genuine issues of material fact as to whether
Kurtenbach was denied adequate food and nutrition. Fact questions remain regarding the
caloric value of what the Detention Center actually serves to the inmates. Although the
defendants produced a menu that shows inmates receive an average of 2,850 calories per
day,s^ Doc. 28-5, there is no evidence that the Detention Center followed that menu.
Meanwhile, Kurtenbach alleges that the menu does not accurately represent the meals
actually served in the Detention Center. Although the Detention Center uses a licensed
dietitian to review and approve the menus, she testified that she is not responsible for
ensuring that menus are being followed. Kurtenbach alleges that meals would routinely
be missing items at breakfast, lunch, and dinner. He states that despite weighing 190
pounds due to a summer of"heavy methamphetamine use," which is below his ordinary
weight of215-220 pounds, he lost over fifteen pounds in a three-month period at the
Detention Center. He further states that he spent more time than usual sleeping because
he was so lethargic. These allegations sufficiently state a claim of denial of adequate
food and nutrition. Ingrassia, 825 F.3d at 898 (holding that a loss of fourteen pounds
in three months was sufficient evidence to show a violation ofthe constitutional right to
adequate nutrition); Davis v. Missouri, 389 Fed. Appx. 579, 579-80(8th Cir. 2010)(per
curiam)(holding that the plaintiff could state a claim for denial of adequate food and
nutrition when he alleged that he lost nineteen pounds during six months and that he was
always sick and lacked energy to get out of bed). Here, there are no allegations that
Kurtenbach was already overweight upon entering the Detention Facility such that any
weight loss would be considered normal. See, e.g.. Emerv v. Helder, 5:16-CV-05193,
2018 WL 715463, at * 10-11 (weight loss of36 pounds over six months insufficient to
find a constitutional violation when the plaintiffremained overweight). Kurtenbach can
also show deliberate indifference to these jail conditions because he filed a grievance and
appeal with Blackwelder and Howell who did nothing to ensure he was receiving
adequate food and nutrition. Based on these circumstances, the defendant's Motion for
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Summary Judgment on the basis that Kurtenbach failed to establish a violation of bis
constitutional rights should be denied.
The defendants contend that even if they violated Kurtenbach's constitutional
rights, the right to adequate nutrition was not clearly established and they are entitled to
qualified immunity. Defendants argue that there is no authority sufficiently on point to
the particular circumstances of Kurtenbach's claim that places this constitutional
violation beyond debate. But at the time Kurtenbach was incarcerated in the Detention
Center, "it was clearly established that a prisoner may properly allege a constitutional
violation by demonstrating significant weight loss or other adverse physical effects from
lack of nutrition." Ingrassia. 825 F.3d at 899(quoting Davis. 389 Fed. Appx. at 579).
The facts surrounding the plaintiffs weight loss from Ingrassia are substantially the same
as they are here, thus, the defendants cannot claim that the law was not clearly
established.
At the same time, Kurtenbach cannot recover compensatory damages because
even if his weight loss is a physical injury for purposes ofthe PLRA, it is de minimis.
See McAdoo. 899 F.3d at 525("We interpret the PLRA to require more than a de
minimis physical injury."); Pearson v. Welbom,471 F.3d 732, 744(7th Cir. 2006)
(holding that loss of50 pounds is not a "physical injury" under the PLRA); Davis v.
District of Columbia, 158 F.3d 1342, 1349(D.C. Cir. 1998)(holding that weight loss,
appetite loss and insomnia do not constitute "physical injury" under the PLRA).
According to Kurtenbach, he gained the lost weight back after being transferred to the
South Dakota State Penitentiary and within three months weighed 215 pounds.
Therefore, similar to his First Amendment claim, his recovery is limited to nominal and
punitive damages if proven by the facts.
Accordingly, Summary Judgment on Kurtenbach's claim against Howell and
Blackwelder in their individual capacities for violating his constitutional rights by
providing inadequate food and nutrition should be denied.
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d. Missed Sentencing Hearing
Kurtenbach claims that Howell and Blackwelder violated his constitutional rights
by prohibiting him from appearing by video conference at an October 21, 2020,
sentencing hearing in Minnesota. As a result, Kurtenbach was not sentenced until April
5, 2021. Kurtenbach claims that because his sentence was not imposed at the earlier date,
he did not begin receiving credit against his Minnesota sentence for the time he served in
the Detention Center and the South Dakota State Penitentiary and was forced to serve an
extra four and a half months in confinement.
It is unclear exactly how Kurtenbach believes his constitutional rights were
violated, and he cites no law to support his argument outside of referencing the Sixth
Amendment. He claims that the defendant's actions violated his right of meaningful
access to the courts. That right prohibits prison officials from actively interfering with
inmate attempts to prepare or file legal documents and requires state courts to waive fees
for indigent inmates. See Lewis v. Casev, 518 U.S. 343, 350(1996). While there can be
no doubt that a prison would run afoul ofthe constitution if it completely barred an
inmate from attending any court proceedings, that is not the case here. The scheduling
error that happened on October 21 was a one-off occurrence resulting from a slip in
communications. Kurtenbach appeared by video for a hearing in the Minnesota court on
October 29 and December 31. There is no evidence to suggest that the Detention Center
systematically prevented Kurtenbach from appearing in Minnesota court. After the
scheduling error led to the missed October 21 hearing, Blackwelder immediately notified
Kurtenbach's attorney and rescheduled a time for Kurtenbach to appear. It cannot be said
that the defendants prohibited Kurtenbach from accessing the courts.
Moreover, Kurtenbach cannot show that he was injured by the missed hearing.
First, it is unclear whether Kurtenbach actually would have been sentenced on October 21
because, based on statements made during the hearing, the presiding judge did not want
to sentence Kurtenbach until he was present in Minnesota. The same statements were
repeated during the October 29 hearing. Second, even if he did receive a sentence on
October 21, Minnesota law does not credit time served from custody outside of
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Minnesota, which is an issue Kurtenbach contested in his direct appeal for his Minnesota
conviction. See State v. Roy,928 N.W.2d 341, 345(Minn. 2019); Kurtenbach. 2021 WL
4259162, at *4.
Because there is no basis in law or fact to support this claim, defendant's Motion
for Summary Judgment should be granted.
e. Official Capacity and County Liability
Kurtenbach makes claims against the defendants in their official capacities as well
as directly against Codington County. An official capacity claim against an individual is
actually a claim "against the governmental entity itself." White v. Jackson. 865 F.3d
1064, 1075 (8th Cir. 2017)(quoting Brockington v. City of Sherwood, 503 F.3d 667, 674
(8th Cir. 2007)).
Because Reiter was working as Deputy State's Attorney, Kurtenhach's official
capacity claim against her is treated as a claim against the state of South Dakota. See
Will V. Mich. Dep't of State Police. 491 U.S. 58, 71 (1989)("[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.")(quoting Brandon v. Holt. 469 U.S. 464,471 (1985)). A
state is not a "person" within the meaning of § 1983,^id. at 65-66, so this claim
should be dismissed.
Kurtenhach's official capacity claims against Sheriff Howell, Blackwelder, and
Schimmel are treated as claims against Codington County.^ "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." Kelly v. City of Omaha. 813 F.3d 1070, 1075 (8th Cir. 2016). These claims
are redundant because Kurtenbach also brought a claim against Codington County
^ The defendants appear to argue that claims against Howell, Blackwelder, and Schimmel
are barred by sovereign immunity. But they are all employed by Codington County, and
a county is not entitled to sovereign immunity under the Eleventh Amendment. See
Northern Ins. Co. of New York v. Chatham County. 547 U.S. 189, 193 (2006)("[T]his
Court has repeatedly refused to extend sovereign immunity to counties.").
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directly. See Veatch v. Bartels Lutheran Home,627 F.3d 1254, 1257(8th Cir. 2010).
Thus,these claims against Howell, Blackwelder, and Schimmel in their official capacities
should be dismissed.
To establish municipal liability, "individual liability first must be found on an
underlying substantive claim." Brockington, 503 F.3d at 674(quoting McCov v. City of
Monticello, 411 F.3d 920, 922(8th Cir. 2005)). Because there is no constitutional
violation for Kurtenbach's Fourth Amendment claim or denial of meaningful access to
the courts claim, there can be no municipal liability and both claims against Codington
County should be dismissed.
Under § 1983, municipal liability for a constitutional violation may only attach if
the violation "resulted from (1) an official municipal policy,(2)an unofficial custom, or
(3)a deliberately indifferent failure to train or supervise." Mick v. Raines, 833 F.3d
1075, 1079(8th Cir. 2018)(quoting Corwin v. City ofIndependence. 829 F.3d 695,699
(8th Cir. 2016)).
Codington County can be held liable for violating Kurtenbach's First Amendment
rights because it had an unconstitutional policy prohibiting all magazines in the Detention
Center. A policy is "an official policy, a deliberate choice of a guiding principle or
proeedure made by the municipal official who has final authority regarding such
matters." Corwin, 829 F.3d at 700. "The potential for municipal liability in that situation
is well established, because a constitutional violation flows directly from a policymaker's
deliberate choice reflected in an official policy or action." Szabla v. Citv ofBrooklyn
Park,486 F.3d 385, 390(8th Cir. 2007)(en banc). To establish a constitutional violation,
no evidence is needed other than a statement of the municipal policy and its exercise. Id.
at 390 tciting Citv of Oklahoma Citv v. Tuttle, 471 U.S. 808, 822-23 (1985)(plurality
opinion)). Here, Barber alleges that the Detention Center had an official policy banning
all magazines regardless of content. The defendants do not dispute that Howell or
Blackwelder acted as a policymaker with final authority over the Detention Center's
magazine policy. Because Kurtenbach has alleged facts sufficient to create liability for
Codington County, the County's motion for summary judgment should be denied.
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Although Kurtenbach can sustain his claim for being denied adequate food and
nutrition against the individual defendants, he cannot establish municipal liability against
Codington County. The County does not have a policy that is unconstitutional on its
face; instead, its policy specifically provides inmates with an average of2,850 calories
per day. Kurtenbach has also failed to show that the "inadequacies ofthe policy were a
product of deliberate or conscious choice by policymakers" such that the policy
constitutes deliberate indifference to constitutional rights. Szabla, 486 F.3d at 390.
He cannot meet the high bar to establish a custom that involves "a pattern of'persistent
and widespread' . .. practices which bec[o]me so 'permanent and well settled' as to have
the effect and force of law." Brockington, 503 F.3d at 674(quoting Doe v. Special Sch.
Dist, 901 F.2d 642,646 (1990)). Kurtenbach has also not alleged facts sufficient to
establish a failure to train that "amounts to deliberate indifference to the rights of persons
with whom the [local officials] c[a]me into contact." Citv of Canton v. Harris, 489 U.S.
378, 388(1989). Kurtenbach has failed to allege facts sufficient to establish municipal
liability for his insufficient food and nutrition claim, so Codington County's motion for
summary judgment should be granted.
Now,therefore,
IT IS ORDERED, as follows:
1. Kurtenbach's claims for declaratory and injunctive relief are dismissed.
2. Kurtenbach's claim against Deputy State's Attorney Reiter in her official
capacity is dismissed.
3. Kurtenbach's redundant claims against Sheriff Howell, Chief Correction
Officer Blackwelder, and Deputy Sheriff Schimmel in their official capacities
are dismissed.
4. Defendants Deputy State's Attorney Reiter and Deputy Sheriff Schimmel's
motion for summary judgment based on qualified immunity for Kurtenbach's
Fourth Amendment claim is granted.
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5. Defendants Sheriff Howell and Chief Correction Officer Blackwelder's
motion for summary judgment based on qualified immunity for Kurtenbach's
First Amendment Claim is denied.
6. Defendants Sheriff Howell and Chief Correction Officer Blackwelder's
motion for summary judgment based on qualified immunity for Kurtenbach's
Fourteenth Amendment claim for insufficient food and nutrition is denied.
7. Defendants Sheriff Howell and Chief Correction Officer Blackwelder's
motion for summary judgment based on qualified immunity for Kurtenbach's
claim that he was denied meaningful access to the courts is granted.
8. Defendant Codington County's motion for summary judgment based on a
failure to establish municipal liability for Kurtenbach's Fourth Amendment
Claim is granted.
9. Defendant Codington County's motion for summary judgment based on a
failure to establish municipal liability for Kurtenbach's First Amendment
Claim is denied.
10. Defendant Codington County's motion for summary judgment based on a
failure to establish municipal liability for Kurtenbach's Fourteenth
Amendment claim for insufficient food and nutrition is granted.
11. Defendant Codington County's motion for summary judgment based on a
failure to establish municipal liability for Kurtenbach's claim that he was
denied adequate access to the courts is granted.
DATED this^'T'd^^fSeptember,2022.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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