Cody v. Clark et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
WILLIAM CODY,
Plaintiff,
vs.
DOUG CLARK, individual and official
capacity; DANIEL SULLIVAN, individual
and official capacity; JENNIFER
DREISKE, individual and official
capacity; BRITTNEY LENGKEEK,
individual and official capacity; SAM
BADURE, individual and official
capacity; JEFFREY ELTON, individual
and official capacity; JENNIFER
FENOLIO, individual and official
capacity; TROY PONTO, individual and
official capacity; TIM REISCH,
individual and official capacity; DARIN
YOUNG, individual and official capacity;
JOHN BENTING, individual and official
capacity; MIKE LEIDHOLT, individual
and official capacity; NYLA SPRINKEL,
individual and official capacity;
JOHN/JANE DOES, individual and
official capacities; MARY CARPENTER,
individual and official capacity,
Defendants.
4:22-CV-04010-KES
1915A SCREENING
Plaintiff, William Cody, 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 Cody leave to proceed in forma pauperis and ordered him
to pay an initial filing fee. Docket 7. Cody paid his initial filing fee on March 3,
2022. Cody has filed two motions to supplement his complaint and attached
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his proposed supplemental complaints. Dockets 8, 8-1, 12, 12-1. Because
Cody’s complaint has not yet been served on defendants, this court grants
Cody’s motions to supplement. This court will now screen Cody’s complaint
under 28 U.S.C. § 1915A.
I. 	1915A Screening
A. 	Factual Background
The facts alleged in Cody’s complaint are: that several conditions at the
penitentiary violate Cody’s rights. See Docket 1 ¶¶ 23-163.
1. 	Diabetes Management Issues
Cody claims that he was diagnosed with Type 2 diabetes on May 1, 2003,
which has caused increased numbness and pain in his feet because of
peripheral neuropathy. Docket 1 ¶ 23. He claims that since 2011, he has had
increasing dizziness, and he was diagnosed with Sjögren’s Syndrome on
December 16, 2019, which can cause neuropathy. See id. ¶¶ 24-25. Cody
alleges that on February 21, 2020, he was provided a cane by his attending
physician at the penitentiary, Dr. Eugene Regier, because of his increased
dizziness. Id. ¶ 26. He alleges that his neuropathy and dizziness were also
worsened by a vitamin B12 deficiency, a lack of protein because of his diet, and
contracting COVID-19 in 2020. Id. ¶¶ 27-28. Cody states that as a result of
these ailments, he struggles to walk, stand, and even sit up straight for periods
of time, which can sometimes be as short as a few minutes. Id. ¶ 29. He also
states that he bruises his arms when he stumbles against walls or objects. Id.
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¶ 30. Cody claims that nurses at Health Services observed those bruises in
June, July, and August 2021. Id. ¶¶ 31-33.
Cody alleges that he was examined by Dr. Jeffrey W. Boyle of Avera
Neurology on September 20, 2021, who attributed his balance issues to his
various conditions. Id. ¶ 34. He alleges that Dr. Boyle reported that “[i]f [Cody]
goes from a sitting to a standing position he will have trouble.” Id. (quoting
Docket 1-1 at 10). Cody claims that an echocardiogram in October 2021
revealed calcification of the aortic valve leaflets and reduction of excursion of
the leaflets, which Dr. Regier told him was troubling and could be contributing
to his dizziness. Id. ¶ 35. He claims that later tests that month showed “a 30
point reduction in systolic blood pressure upon sitting from prone and another
30 point reduction when standing.” Id. ¶ 36.
Cody states that he has been prescribed Lyrica for neuropathic pain
caused by diabetes. Id. ¶ 37. He states he is to take Lyrica three times a day
with meals. Id. ¶ 38. He also states that medications take a minute or two to be
disbursed and that insulin injections take longer, which can result in
medication lines of up to twenty inmates. Id. ¶¶ 39-40. Cody claims that under
a new rule posted around March 2021, he was required to obtain his Lyrica
before entering the dining hall. Id. ¶ 41. He claims that waiting in long
medication lines was difficult because of his balance issues and foot pain. See
id. ¶ 48. He also claims that Unit Manager Sam Badure offered him a walker-
chair to use while waiting in the medication line, but because a walker-chair
would require him to repeatedly stand, move the walker-chair, and sit, he
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declined it. Id. ¶ 50. Cody alleges that Badure “harbored animus toward him”
because Cody helped a fellow inmate with court filings as a prisoner advocate.
Id.
Cody claims that he submitted an inmate Americans with Disabilities Act
(“ADA”) accommodation request on May 18, 2021, asking to be let out early for
meals to avoid medication lines, and that this request was denied on June 11,
2021, by former Facility ADA Coordinator Jennifer Dreiske.1 Id. ¶ 42. Cody
alleges that the two inmates in cells next to his are released every evening five
to ten minutes before Cody because they work as a laundry orderly and on the
recreation crew. Id. ¶ 43. He alleges that he has received disciplinary reports on
several occasions for leaving the dining hall before entering the medication line.
Id. ¶ 44. He also alleges that further efforts to receive an ADA accommodation
to help him receive treatment were unsuccessful. See id. ¶¶ 45, 53-55. Cody
states that he stopped taking Lyrica because further disciplinary reports would
result in fines, and his failure to take Lyrica caused him pain that often
disrupted his sleep. Id. ¶ 46. He states that he requested an ADA
accommodation to allow him to return to his cell early from recreation periods,
which Lengkeek granted on November 2, 2021. Id. ¶¶ 57-58.
1 Cody brings claims against Jennifer Dreiske, the former Facility ADA
Coordinator, in her individual and official capacity. Under Federal Rule of Civil
Procedure 25(d), “[a]n action does not abate when a public officer who is a
party in an official capacity dies, resigns, or otherwise ceases to hold office
while the action is pending. The officer's successor is automatically substituted
as a party.” Fed. R. Civ. P. 25(d). The current Facility ADA Coordinator is
Brittney Lengkeek, who is automatically substituted for Dreiske on the official
capacity claims.
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Cody alleges that he was examined by Dr. Oday Karadsheh of Avera
Medical Group Endocrinology on December 30, 2021. Docket 8-1 ¶ 2. He
alleges that Dr. Karadsheh changed his diabetes regimen because of his “body
changes and complications.” Id. ¶ 4. He states that Dr. Karadsheh
recommended 2-3 finger sticks in the morning and 1-2 in the afternoon or
evening to monitor blood sugar and a daily insulin injection. Id. He also states
that after he told Dr. Karadsheh of the difficulties he was having following his
diabetes regimen at the penitentiary, Dr. Karadsheh wrote a letter explaining
that “uncontrolled diabetes will put the patient at higher risk of medical
complication including but not limited to heart disease, stroke, and severe
infection which may lead to amputations” and that “[u]nrecognized
hypoglycemia – if not treated – could cause death.” Id. ¶¶ 7-8 (quoting Docket
8-2 at 9).
Cody states that despite Dr. Karadsheh’s recommendations and letters,
medical staff at the penitentiary did not know of his new insulin requirements
and were not tracking his blood sugar numbers. Id. ¶ 10. He states that he
received an order for blood sugar checks three times each day but that he was
still not receiving proper care because he had not received ADA
accommodations that would let him receive care, so he attempted to meet with
Dr. Regier’s replacement. Id. ¶¶ 11-14. Cody claims that Registered Nurse Liz
Townsend came to his cell on January 28, 2022, to discuss Cody’s diabetes
treatment. Id. ¶ 16. He claims that Townsend had learned that he had been
testing his blood sugar “twice per day only a few times and not even once every
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day” and that he had not received any insulin since December 30, 2021. Id.
Cody alleges that he explained to Townsend that he wanted treatment, but
because he was physically unable to stand in long medication lines, he could
not receive it. Id. He also alleges that his request to be released from his cell
earlier in order to avoid long medication lines as an ADA accommodation was
denied by Lengkeek on February 9, 2022. Docket 12-1 ¶ 5.
2. 	Dining Hall Issues
Cody claims that he has been authorized to sit in the handicapped
section of the penitentiary dining hall for the past few years and that because
he could not stand in line, inmate Norman Stumes was assigned to get Cody’s
meals and bring them to his table. Docket 1 ¶¶ 61-62. He claims that Sergeant
Jeffrey Elton issued a disciplinary report dated September 20, 2020, alleging
that Cody and Stumes did not have authorization to eat alone together, even
though Dr. Regier and penitentiary staff had in fact authorized this
arrangement. Id. ¶¶ 63-64. He also claims that he complained to Lieutenant
Perrett and that Unit Manager Cody Hanson told him that the disciplinary
report had been dismissed. Id. ¶ 65. He alleges that, despite this, on November
12, 2021, Elton still refused to allow Cody to sit in the handicapped section of
the dining room and refused to allow Stumes to help with his meals. Id. ¶¶ 66-
67.
Cody alleges that he was forced to leave the dining hall without his meal
that day, and because his age and health left him especially at risk to COVID-
19, he could not attend subsequent meals supervised by Elton because he
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could not sit at a table with three other potentially unvaccinated inmates. Id.
¶¶ 68-70, 72. Cody alleges that Elton’s treatment of him was motivated by
Cody’s disability and by the humiliation faced by Elton when his disciplinary
report was exposed as false by Perrett and Hanson. Id. ¶ 73. He also alleges
that he wrote letters complaining of this treatment to Interim Secretary of
Corrections Tim Reisch2 and Interim Warden Doug Clark,3 but the letter Cody
received in response ignored his complaints about Elton. Docket 8-1 ¶ 23.
3. 	Health Services’ Waiting Room Conditions
Cody states that the penitentiary’s COVID-19 procedures were
insufficient, exposing him to unnecessary risk, after the penitentiary stopped
requiring masks on July 24, 2021. See Docket 1 ¶ 74. He states that
penitentiary inmates and staff were aware on November 13, 2021, that there
were active cases of COVID-19 within the penitentiary. Id. ¶ 75. He states that
he was called to Health Services that morning to discuss the kite he had sent
the previous day regarding Elton and his authorization to eat separately with
Stumes. See id. ¶ 77. Cody claims that the Health Services waiting room, which
is about 12 by 15 feet, had 13 other inmates and that Correctional Officer
Jennifer Fenolio, who escorted him to the waiting room, was responsible for the
2 Cody brings claims against Tim Reisch, the former Interim Secretary of
Corrections, in his individual and official capacity. The current Secretary of
Corrections is Kellie Wasko, who is automatically substituted for Reisch on the
official capacity claims. See Fed. R. Civ. P. 25(d).
3 Cody brings claims against Doug Clark, the former Acting South Dakota State
Penitentiary Warden, in his individual and official capacity. The current warden
is Dan Sullivan, who is automatically substituted for Clark on the official
capacity claims. See Fed. R. Civ. P. 25(d).
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overcrowding that day, as well as unknown John/Jane Does #2(b). Id. at
¶¶ 77-79. He also claims that he had previously complained about
overcrowding in the waiting room, which continues to this day, and had
refused to stay there for an extended period of time on at least two prior
occasions. Id. ¶¶ 77, 79. Cody alleges that he asked Fenolio for permission to
return to his cell, but she said that she could not escort him because she was
the only officer available. Id. ¶ 83. He alleges that he had to wait about two
hours and that he was forced to go to Health Services because of Elton’s denial
of his ADA accommodation request. See id. ¶¶ 77, 85-86.
4. 	Quarantine Conditions
Cody claims that he learned that afternoon that he was to be
quarantined because one of the people at Health Services that morning had
tested positive for COVID-19. Id. ¶¶ 88-89. He claims that he was first told that
he could stay in his own single cell in Federal Hall, but he was then told he
would be transferred to East Hall to be celled with another inmate who had
been exposed to COVID-19 that morning. See id. ¶¶ 87, 90, 93. Cody alleges
that he asked for an N95 mask but never received a response to this request.
Id. ¶ 95. He alleges that he made a list of the 17 people whom he had been in
contact with since leaving Health Services, but no one ever requested this list.
Id. ¶ 97. Cody states that he was moved into his new cell that evening and that
his new roommate had a chest tube for antibiotics for a sore on his leg. Id.
¶ 99. He states that despite the risk to him and his roommate, the officer who
visited the cell to take his roommate for medication did not wear a mask or
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gloves. Id. He also states that many inmates and staff passing near or visiting
the quarantined cells did not wear gloves or masks. Id. ¶ 103, 112, 121.
Cody alleges that the cell in which he was quarantined contained a triple
bunk that only had 13 inches of space between the mattress and the bed above
it. Id. ¶ 100. He alleges that he had to roll in and out of the bunk and often had
to sit on the toilet to drink, eat, or watch TV because the cell only had one
chair. Id. ¶ 101. He also alleges that inmates in other cells in East Hall yelled
and had their televisions on overnight and that officers did not enforce the
posted rule requiring use of headphones while watching television, making it
more difficult for him to sleep. Id. ¶ 102, 130. Cody states that his inability to
rest while supporting his head and neck caused increasing dizziness and
nausea that persist to this day. Id. ¶ 107. He states that he was not allowed
regular showers, even though other quarantined inmates showered every day,
and that he was only offered four showers during the first nine days of his
quarantine. Id. ¶¶ 111, 113, 123, 128.
Cody states that these conditions caused him to be unable to walk more
than a few feet before being too dizzy to stand, subjecting him to discipline
because he could not stand for the ten to twelve minutes required for standing
counts. Id. ¶ 117. He states that he complained about these conditions to
Deputy Warden Troy Ponto on November 18, 2021, and he was moved to a
single cell that day that he describes as “filthy, but [able to be] cleaned well
enough to become acceptable for the 5 or 6 days remaining.” Id. ¶¶ 120, 122.
Cody claims that on November 19, 2021, he was extremely dizzy when sitting
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on his bed with his feet on the floor, after resting in a supported prone position
for over two hours. Id. ¶ 127. He claims that he laid down for another hour,
then sat up, waited, stood, and tried to walk. Id. Cody alleges that he could not
walk in a straight line and sat back down in his chair. Id. He alleges that it
took over an hour for him to recover and that this condition is now “fairly
permanent[.]” Id. He also alleges that medical notes from November 23, 2021,
described “evidence of significant deterioration of diabetic control[.]” Docket 8-1
¶ 24.
Cody claims that he received a major disciplinary report as a result of
these conditions. See Docket 1 ¶ 104-105. He claims that he was “woken from
a labored sleep” the morning of November 15, 2021, by a nurse with a Lyrica
pill. Id. ¶ 104. Cody alleges that, dizzy and not fully cognizant, he rolled out of
his bed, put the pill in his mouth, took a drink of water, opened his mouth to
show the officer that he had swallowed the pill, and went back to sleep. Id. He
alleges that he received a disciplinary report for violating a major DOC rule for
“not float[ing] his meds[,]” a mistake he attributes to his condition that
morning, and that the report suggests he must be more closely monitored
when he is given Lyrica. Id. ¶ 105, 126.
5. 	Economic Impact Payment Garnishment
Cody states that he was eligible to receive Congressionally authorized
economic impact payments during the pandemic. See id. ¶¶ 138-139.
Specifically, he states that he was to receive $1,200 in Coronavirus Aid, Relief,
and Economic Security Act stimulus money, $600 in Consolidated
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Appropriations Act stimulus money, and $1,400 in American Rescue Plan Act
money. See id. ¶ 138. Cody claims that he received his entire $1,400 American
Rescue Plan Act payment on April 23, 2021, but that instead of receiving
$1,800 from the other two payments, he received $1801.04 on May 3, 2021,
and $1,550.99 of that was deducted for “obligation payments[.]” See id. ¶¶ 141,
146. He claims that the additional $1.04 was “fraudulently fabricated” by
unknown John/Jane Does #3. Id. ¶ 147. He also claims in an attached
grievance that $160 went to his spending account, $90.05 to his savings
account, and $360.21 went to his Prison Litigation Reform Act debt, but the
remaining $1,190.78 was taken for other obligations. See Docket 1-1 at 60.
Cody alleges that his debt would regularly be reduced to $100 at his
yearly classification review, and that his total debts in April 2021 were
$251.86. Docket 1 ¶ 142. He alleges that he wrote to former Warden Darin
Young,4 and he received a response from Associate Warden John Benting
denying his request to reduce his debt of $251.86 to $100. Id. ¶¶ 142-143. He
also alleges that he wrote Nyla Sprinkel, Supervisor for Inmate Accounts, about
this issue, and he received a reply from Sprinkel stating that “loans are written
off down to $100 . . . this done during summer months.” Id. ¶¶ 144, 149
(omission in original) (quoting Docket 1-1 at 55). Cody connects this procedure
to the garnishment of his economic impact payments, alleging that former
4 Cody brings claims against Darin Young, the former South Dakota State
Penitentiary Warden, in his individual and official capacity. The current warden
is Dan Sullivan, who is automatically substituted for Young on the official
capacity claims. See Fed. R. Civ. P. 25(d).
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Secretary of Corrections Mike Leidholt5 and John/Jane Does #3 in Pierre
created this procedure in order to put these payments towards the existing
debt before writing it off. See id. ¶¶ 145, 150.
Cody states that, according to Sprinkel, the payment was a “tax refund”
and not an “economic impact payment” and thus could be garnished. Id. ¶ 152.
He states that a later memo sent by the DOC stated that “[t]ax returns and
stimulus payments are not exempt from garnishment and will be processed as
a normal incoming mail deposit.” Id. ¶ 154. He also states that fellow inmate,
David Bradley, only had $750 of his first two stimulus payments totaling
$1,800 garnished. Docket 8-1 ¶ 27; Docket 12-2 at 7.
6. 	Vocal Cord Issues
Cody claims that he visited Dr. Daniel W. Wood of Midwest Ear, Nose &
Throat on October 24, 2019. Docket 1 ¶ 158. He claims that he was diagnosed
with “poor projection, raspy, and rough” voice quality that had a significant
impact on vocal function. Id. (quoting Docket 1-1 at 69). He also claims that a
flexible endoscopy revealed a “weak” left vocal cord and that Dr. Wood
recommended “a left thyroplasty[.]” Id. (quoting Docket 1-1 at 72). Cody alleges
that Dr. Regier requested this procedure and that Dr. Mary Carpenter, who had
final approval authority at Correctional Health Services, rejected Dr. Regier’s
5 Cody brings claims against Mike Leidholt, the former Secretary of
Corrections, in his individual and official capacity. The current Secretary of
Corrections is Kellie Wasko, who is automatically substituted for Leidholt on
the official capacity claims. See Fed. R. Civ. P. 25(d).
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request for this procedure because it was a benign condition and because the
surgery would only improve voice quality. Id. ¶¶ 21, 159.
Cody alleges that this condition worsened to the point that “it was
becoming increasingly difficult to yell for help or even to call to get his cell door
opened[,]” and in July 2021, he requested another evaluation from Dr. Wood.
Id. ¶¶ 160-61. Cody states that Dr. Regier submitted this request, and Dr.
Carpenter denied the request, deeming the procedure not medically necessary.
Id. ¶ 161. He alleges that Dr. Regier submitted another request for an Ear,
Nose, and Throat consultation on September 9, 2021, which Dr. Carpenter
rejected on September 28, 2021. Id. ¶ 162. He also states that his worsening
condition places more stress on his right vocal cord and risks permanent loss
of speech. Id. ¶ 163.
7. 	Noise Issues
Cody alleges that Badure was indifferent to his complaints regarding
noise issues in East Hall and then Federal Hall. Docket 8-1 ¶ 25. He alleges
that Badure has been moving inmates directly from segregated housing into
Federal Hall and failing to enforce noise rules in Federal Hall, resulting in
increased noise. Id. He also alleges that he spoke with Badure on January 26,
2022, to discuss noise issues, but she only told him to inform an officer when
there was a television on without headphones. Id. Cody states that he
continued to complain about the noise level steadily increasing and preventing
him from sleeping, but no prison officials have made any effort to address the
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issue. Id. ¶ 26; Docket 12-1 ¶¶ 8-11. He states that he brought some of these
complaints to Associate Warden Chad Rotert. Docket 12-1 ¶¶ 9-11.
Cody brings claims against Clark, Dreiske, Reisch, Young, and Leidholt6
in their individual capacities and against all other defendants in their
individual and official capacities. See Docket 1 ¶ 4; Docket 12-1 at 1.7 He seeks
several forms of declaratory and injunctive relief, money damages, and other
relief that this court deems just. Docket 1 at 43-48; Docket 8-1 at 14-15.
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.
6 Because Lengkeek has been substituted for Dreiske, Sullivan has been
substituted for Clark and Young, and Wasko has been substituted for Leidholt
and Reisch in their official capacities under Federal Rule of Civil Procedure
25(d), the claims against Dreiske, Clark, Young, Leidholt, and Reisch are in
their individual capacities only. Claims that have been brought against
Lengkeek, Sullivan, and Wasko because they have been substituted for other
defendants are brought against Lengkeek, Sullivan, and Wasko in their official
capacities only. See Fed. R. Civ. P. 25(d).
7 Cody names Wasko and Rotert as defendants in his second supplemental
complaint. Docket 12-1 ¶¶ 3-4. Although he does not indicate the capacities in
which he brings claims against Wasko and Rotert in the body of his second
supplemental complaint, he does list them as defendants “officially and in their
Individual capacities” in the caption. Id. at 1. Thus, he brings these claims
against Wasko and Rotert in their official and individual capacities.
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1985) (citation omitted); see also Ellis v. City of Minneapolis, 518 F. App’x 502,
504 (8th Cir. 2013).
A complaint “does not need detailed factual allegations . . . [but] requires
more than labels and conclusions, and a formulaic recitation of the elements of
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 of 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) (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. Official Capacity Claims for Money Damages
Cody brings claims against all defendants except Clark, Dreiske, Young,
Leidholt, and Reisch in their official capacities. See Docket 1 ¶ 4. All
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defendants were employees of the state of South Dakota at the times in
question. Id. ¶¶ 5-21; Docket 12-1 ¶¶ 3-4. “[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, Cody requests both money damages and injunctive relief. The state of
South Dakota has not waived its sovereign immunity. Thus, Cody’s claims for
money damages against all defendants except Clark, Dreiske, Young, Leidholt,
and Reisch in their official capacities are dismissed without prejudice under 28
U.S.C. §§ 1915(e)(2)(B)(iii) and 1915A(b)(2).
2. 	Official Capacity Claims for Injunctive Relief and
Individual Capacity Claims
“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff
must plead that each Government-official defendant, through the official's own
individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009).
Thus, each Government official . . . is only liable for his or her own
misconduct. As we have held, a supervising officer can be liable for
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an 	inferior 	officer's 	constitutional 	violation 	only 	if 	he 	directly
participated in the constitutional violation, or if his failure to train
or supervise the offending actor caused the deprivation.
Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010) (cleaned up). Cody’s
individual capacity claims must allege that each individual defendant either
participated in the unconstitutional conduct or caused the conduct to occur
through a failure to train or supervise the offending actor.
a. 	Medical Care Denial Claims
Cody brings claims against Sullivan, Lengkeek, and Badure in their
individual capacities and in their official capacities for injunctive relief and
against Clark and Dreiske in their individual capacities for denying him access
to prescribed pain medications, blood sugar testing, and insulin in violation of
his right to be free from discrimination because of his disability under Title II of
the ADA, his right to be free from cruel and unusual punishment under the
Eighth Amendment, and his right to equal protection of the laws under the
Fourteenth Amendment. Docket 1 ¶ 164; Docket 8-1 ¶ 29.
(1) 	ADA Claims
Cody alleges that he has been discriminated against because of his
disability in violation of the ADA. Docket 1 ¶ 164; Docket 8-1 ¶ 29. 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). There are various means
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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). To succeed on an intentional discrimination claim or a
failure to provide reasonable accommodations claim, Cody 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
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).
Here, Cody fails to allege 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)). Cody’s diabetes and mobility issues render him
a qualified individual with a disability. See 42 U.S.C. § 12102(1) (defining
“disability” under the ADA). Although he claims that he has not been provided
means to obtain pain medication, blood sugar testing, and insulin, he makes
no showing that he has been treated differently because of his disability and no
showing of discriminatory intent. See Docket 1 ¶¶ 23-58; Docket 8-1 ¶¶ 1-20.
Thus, Cody’s ADA claims for intentional discrimination against Sullivan,
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Lengkeek, and Badure in their individual capacities and in their official
capacities for injunctive relief and against Clark and Dreiske in their individual
capacities are dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(1).
Construing Cody’s complaint liberally, he also brings claims for failure to
provide reasonable accommodations in violation of the ADA. See Docket 1
¶ 164; Docket 8-1 ¶ 29. He alleges that he was excluded from obtaining
medication, and “ ‘medical services’ . . . at state prisons are benefits within the
meaning of Title II[.]” Mason, 559 F.3d at 886 (quoting 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[,]” Cody 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).
Cody alleges that he is excluded from pain medication, blood sugar
testing, and insulin because his mobility issues make him unable to wait in
line and that solutions offered by defendants, such as a walker-chair, do not
address his issues. Docket 1 ¶¶ 48, 50; Docket 8-1 ¶ 16. Thus, Cody’s ADA
claims for failure to provide reasonable accommodations against Sullivan,
Lengkeek, and Badure in their individual capacities and in their official
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capacities for injunctive relief and against Clark and Dreiske in their individual
capacities survive § 1915A screening.
(2) 	Eighth Amendment Claims
Cody claims violations of his Eighth Amendment right to be free from
cruel and unusual punishment. Docket 1 ¶ 164; Docket 8-1 ¶ 29. Construing
his complaint liberally, he brings claims for deliberate indifference to his
serious medical needs in violation of the Eighth Amendment. See Docket 1
¶ 164; Docket 8-1 ¶ 29. “[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. See Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (citing
Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)).
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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
recognize the necessity for a doctor’s attention.” Coleman, 114 F.3d at 784
(citation and internal quotation omitted). 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, Cody’s allegations meet both the objective and subjective
components of the standard set by the Eighth Circuit Court of Appeals. See
Dulany, 132 F.3d at 1239. His diabetes and mobility issues constitute
objectively serious medical needs, and he claims that defendants were all
aware of these needs and, although he has been prescribed Lyrica for his
neuropathy and blood sugar testing and insulin for his diabetes, have failed to
provide him a means by which he can obtain his prescribed treatment. See
Docket 1 ¶¶ 48, 50; Docket 8-1 ¶¶ 4, 16. Thus, Cody’s Eighth Amendment
claims for deliberate indifference to serious medical needs against Sullivan,
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Lengkeek, and Badure in their individual capacities and in their official
capacities for injunctive relief and against Clark and Dreiske in their individual
capacities survive § 1915A screening.
(3) 	Fourteenth Amendment Claims
Cody alleges violations of his Fourteenth Amendment right to equal
protection of the laws. Docket 1 ¶ 164; Docket 8-1 ¶ 29. The equal protection
clause of the Fourteenth Amendment requires the government to “treat
similarly situated people alike,” a protection that applies to prisoners. Murphy
v. Mo. Dep't of Corr., 372 F.3d 979, 984 (8th Cir. 2004) (quoting Rouse v.
Benton, 193 F.3d 936, 942 (8th Cir. 1999)). The Eighth Circuit reviews equal
protection claims on disability grounds under a rational basis standard. See
More v. Farrier, 984 F.2d 269, 271 & n.4 (8th Cir. 1993). The plaintiff must
show that “(1) [he is] similarly situated with persons who are treated differently
by [the penitentiary], and (2) [the penitentiary] has no rational basis for the
dissimilar treatment.” Id. (citing Moreland v. United States, 968 F.2d 655, 660
(8th Cir. 1992) (en banc). “In determining whether a disabled inmate is
similarly situated to nondisabled inmates, [the Eighth Circuit] has examined
whether the disabled plaintiff is equally capable for the purpose at issue.”
Hansen v. Rimel, 104 F.3d 189, 190 (8th Cir. 1997).
Cody alleges sufficient facts to state a claim for violation of his
Fourteenth Amendment equal protection rights. He alleges that he is treated
differently than other inmates who need medical treatment. Docket 8-1 ¶ 17. In
Hansen, the Eighth Circuit found that a hearing-impaired inmate was not
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“equally capable of accessing a standard telephone” and thus “not similarly
situated to hearing inmates for the purpose of using a telephone.” 104 F.3d at
190. Here, Cody seeks access to medical treatment, and he is as equally
capable of needing and receiving that medical treatment as other inmates.
While Cody has been offered medical treatment, he alleges that the means by
which treatment is offered effectively denies him access to it. See Docket 8-1
¶¶ 11-17. Although the penitentiary may have a rational basis for the
dissimilar treatment, this court cannot evaluate that basis without defendants’
response to these claims. Thus, Cody’s Fourteenth Amendment equal
protection claims against Sullivan, Lengkeek, and Badure in their individual
capacities and in their official capacities for injunctive relief and against Clark
and Dreiske in their individual capacities survive § 1915A screening.
b. 	Claims Against Sergeant Jeffrey Elton
Cody brings claims against Elton in his individual capacity and in his
official capacity for injunctive relief for denying him his accommodated seating
in the dining hall in violation of his right to be free from discrimination because
of his disability under Title II of the ADA, his Eighth Amendment right to be
free from cruel and unusual punishment, his Fourteenth Amendment right to
equal protection of the laws, and his First Amendment right to be free from
retaliation. Docket 1 ¶ 165.
(1) 	ADA Claims
Cody alleges that Elton has discriminated against him in violation of the
ADA. Id. He claims that Elton was made aware of his disability and still refused
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him his accommodations, forcing him to miss meals supervised by Elton. Id.
¶¶ 65-72. He further claims that these actions were motivated by his disability.
Id. ¶ 73. Cody alleges facts sufficient to state a claim for intentional
discrimination under the ADA, and his intentional discrimination claim against
Elton in his individual capacity and in his official capacity for injunctive relief
survives § 1915A screening.
Construing Cody’s complaint liberally, he also brings claims against
Elton for failure to provide reasonable accommodations in violation of the ADA
and for retaliation in violation of the ADA. Id. ¶ 165. Cody alleges that he was
excluded from meals because Elton refused him his accommodations. Id.
¶¶ 66-72. Thus, Cody has alleged facts sufficient to state a claim for failure to
provide reasonable accommodations against Elton in his individual capacity
and in his official capacity for injunctive relief, and this claim 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.]” 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 protected activity.” Rinehart, 964 F.3d at 689.
Here, Cody alleges facts sufficient to state a claim for ADA retaliation against
Elton. He claims that Elton refused him his accommodations in the dining hall
and that Elton did so because of prior conflicts between him and Elton
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regarding his accommodations in the dining hall. Docket 1 ¶¶ 66-73. Thus,
Cody’s ADA retaliation claim against Elton in his individual capacity and in his
official capacity for injunctive relief survives § 1915A screening.
(2) 	Eighth Amendment Claims
Cody claims that Elton violated his Eighth Amendment right to be free
from cruel and unusual punishment. Id. ¶ 165. Construing his complaint
liberally, he claims that Elton was deliberately indifferent to conditions of
confinement that violated his Eighth Amendment rights. See id.
“[T]he Constitution ‘does not mandate comfortable prisons’; it prohibits
‘inhumane ones.’ ” Williams v. Delo, 49 F.3d 442, 445 (8th Cir. 1995) (quoting
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) (citation 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
inmate health or safety. Simmons v. Cook, 154 F.3d 805, 807 (8th Cir. 1998)
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(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, Cody alleges sufficient facts to state claims for deliberate
indifference to conditions of confinement in violation of his Eighth Amendment
rights. He claims that Elton knowingly deprived him of food, a basic human
need. See Docket 1 ¶¶ 66-72; Helling, 509 U.S. at 32. Thus, Cody’s Eighth
Amendment conditions of confinement claim against Elton in his individual
capacity and in his official capacity for injunctive relief survives § 1915A
screening.
(3) 	Fourteenth Amendment Claims
Cody claims that Elton violated his Fourteenth Amendment right to equal
protection of the laws. Id. ¶ 165. He claims that Elton has treated him
differently than similarly situated nondisabled inmates by refusing him dining
hall accommodations. See id. ¶¶ 66-72. Cody is similarly situated to
nondisabled inmates because he is as equally capable of eating as they are. See
Hansen, 104 F.3d at 190. As above, this court cannot evaluate Elton’s basis for
the dissimilar treatment without defendants’ response to these claims. Thus,
Cody’s Fourteenth Amendment equal protection claim against Elton in his
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individual capacity and in his official capacity for injunctive relief survives
§ 1915A screening.
(4) 	First Amendment Claims
Cody alleges that Elton retaliated against him in violation of his First
Amendment rights. Docket 1 ¶ 165. 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.
Here, Cody alleges facts sufficient to state claims for retaliation in
violation of his First Amendment rights. Cody alleges that after Elton denied
him his dining hall accommodations, he complained to Perrett about the issue.
Docket 1 ¶ 65. The Eighth Circuit has held that “[t]he right to be free from
retaliation for availing one's self of the prison grievance process [is] clearly
established[.]” Santiago v. Blair, 707 F.3d 984, 991 (8th Cir. 2013) (citing
Nelson v. Shuffman, 603 F.3d 439, 449-50 (8th Cir. 2010)). Although Cody did
not file a formal grievance, he alerted a penitentiary officer to the problem with
Elton in hopes of resolving it. Docket 1 ¶ 65. Thus, he engaged in
constitutionally protected speech. Elton’s actions in denying Cody access to
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food would chill a person of ordinary firmness from continuing in the protected
activity, and Cody alleges that Elton was motivated by the results of Perrett
and Hanson’s investigation, which was spurred by Cody’s complaint. See id.
¶¶ 67-73. Cody’s First Amendment retaliation claim against Elton in his
individual capacity and in his official capacity for injunctive relief survives
§ 1915A screening.
c. 	Health Services Waiting Room COVID-19 Protocol
Claims
Cody brings claims against Fenolio and John/Jane Does #2(b) in their
individual capacities and in their official capacities for injunctive relief for
failing to impose masking or social distancing requirements in the Health
Services waiting room in violation of his right to be free from discrimination
because of his disabilities under Title II of the ADA, his Eighth Amendment
right to be free from cruel and unusual punishment, and his Fourteenth
Amendment right to equal protection of the laws. Id. ¶ 166.
(1) 	ADA Claims
Cody alleges discrimination in violation of Title II of the ADA. Id. Cody
makes no showing that he was treated differently than nondisabled inmates
while at the Health Services waiting room, only that the lack of COVID-19
protocols in the waiting room endangered him. See id. ¶¶ 77-83. Construing
his complaint liberally, Cody also claims that Fenolio and John/Jane Does
#2(b) failed to provide reasonable accommodations in violation of the ADA. Id.
¶ 166. Although Cody may have desired waiting room accommodations that
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put him less at risk of contracting COVID-19, he does not allege that he was
excluded from any “services, programs, or activities” through the waiting
room’s lack of COVID-19 protocols, only that they put him at risk. See id.
¶¶ 77-83. Thus, his ADA claims for intentional discrimination and for failure to
provide reasonable accommodations against Fenolio and John/Jane Does #2(b)
in their individual capacities and in their official capacities for injunctive relief
are dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1).
(2) 	Eighth Amendment Claims
Cody claims violations of his Eighth Amendment right to be free from
cruel and unusual punishment. Id. ¶ 166. Construing his complaint liberally,
he brings claims for deliberate indifferent to conditions of confinement in
violation of his Eighth Amendment rights. See id. Under Helling, reasonable
safety is a basic human need. 509 U.S. at 32. An Eighth Amendment remedy
was required when inmates were held in small cells where some inmates had
infectious diseases, even though not all of those exposed to the disease became
infected. Hutto v. Finney, 437 U.S. 678, 682-83, 687-88 (1978). Again, this
court must examine the totality of the circumstances when considering an
Eighth Amendment challenge to conditions of confinement. Villanueva, 659
F.2d at 854.
Here, Cody alleges facts sufficient to state claims for deliberate
indifference to conditions of confinement in violation of his Eighth Amendment
rights. Cody alleges that Fenolio and John/Jane Does #2(b) knew of the risk
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posed to Cody by COVID-19 and did not take reasonable efforts to mitigate that
risk. Docket 1 ¶¶ 77-83. Given the totality of the circumstances, including
Cody’s medical conditions, the lack of masking and social distancing could
have posed a substantial risk of serious harm to Cody. See id. Thus, his Eighth
Amendment conditions of confinement claim against Fenolio and John/Jane
Does #2(b) in their individual capacities and in their official capacities for
injunctive relief survives § 1915A screening.
(3) 	Fourteenth Amendment Claims
Cody claims violations of his Fourteenth Amendment right to equal
protection of the laws. Id. ¶ 166. Cody does not allege that he was treated
differently than similarly situated inmates, only that the conditions in the
Health Services waiting room put him at risk. See id. ¶¶ 77-83. Thus, his
Fourteenth Amendment equal protection claim against Fenolio and John/Jane
Does #2(b) in their individual capacities and in their official capacities for
injunctive relief is dismissed without prejudice under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
d. 	Quarantine Conditions Claims
Cody brings claims against Sullivan, Ponto, and John/Jane Does #2(c) in
their individual capacities and in their official capacities for injunctive relief,
against Clark and Reisch in their individual capacities, and against Wasko in
her official capacity for injunctive relief for imposing quarantine conditions in
violation of his right to be free from discrimination because of his disabilities
under the ADA, his Eighth Amendment right to be free from cruel and unusual
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punishment, and his Fourteenth Amendment right to equal protection of the
laws. Id. ¶ 167.
(1) 	ADA Claims
Cody alleges discrimination in violation of Title II of the ADA. Id. Cody
makes no showing that he was treated differently than nondisabled inmates
while quarantined, only that the quarantine protocols endangered him. See id.
¶¶ 87-136; Docket 8-1 ¶ 24. Construing his complaint liberally, Cody also
claims that Clark, Sullivan, Ponto, Reisch, and John/Jane Does #2(c) failed to
provide reasonable accommodations in violation of the ADA. Docket 1 ¶ 167.
Cody alleges that the conditions of his quarantine worsened his health issues,
but he does not allege that he was excluded from any “services, programs, or
activities” by the quarantine conditions. See id. ¶¶ 87-136; Docket 8-1 ¶ 24.
Thus, Cody’s ADA claims for intentional discrimination and for failure to
provide reasonable accommodations against Sullivan, Ponto, and John/Jane
Does #2(c) in their individual capacities and in their official capacities for
injunctive relief, against Clark and Reisch in their individual capacities, and
against Wasko in her official capacity for injunctive relief are dismissed without
prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
(2) 	Eighth Amendment Claims
Cody claims violations of his Eighth Amendment right to be free from
cruel and unusual punishment. Id. ¶ 167. Construing his complaint liberally,
he brings claims for deliberate indifference to conditions of confinement in
violation of his Eighth Amendment rights. See id. Here, Cody alleges facts
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sufficient to state claims for deliberate indifference to conditions of confinement
in violation of his Eighth Amendment rights. Cody alleges that, given his
medical issues, the conditions of his quarantine posed serious risks to his
health and that Clark, Sullivan, Ponto, Reisch, and John/Jane Does #2(c)
ignored these risks despite his efforts to bring the risks to their attention. See
id. ¶¶ 87-136; Docket 8-1 ¶ 24. Thus, Cody’s Eighth Amendment conditions of
confinement claim against Sullivan, Ponto, and John/Jane Does #2(c) in their
individual capacities and in their official capacities for injunctive relief, against
Clark and Reisch in their individual capacities, and against Wasko in her
official capacity for injunctive relief survives § 1915A screening.
(3) 	Fourteenth Amendment Claims
Cody claims violations of his Fourteenth Amendment right to equal
protection of the laws. Id. ¶ 167. Cody does not allege that he was treated
differently than similarly situated inmates, only that the conditions of his
quarantine caused him harm. See id. ¶¶ 87-136; Docket 8-1 ¶ 24. Thus, his
Fourteenth Amendment equal protection claim against Clark, Sullivan, Ponto,
Reisch, and John/Jane Does #2(c) in their individual capacities and in their
official capacities for injunctive relief is dismissed without prejudice under 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
e. 	Economic Impact Payment Garnishment Claims
Cody brings claims against Wasko, Sullivan, Benting, Sprinkel, and
John/Jane Does #3 in their individual capacities and in their official capacities
for injunctive relief and against Clark, Young, Leidholt, and Reisch in their
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individual capacities for garnishing his economic impact payments in violation
of the Consolidated Appropriations Act, the Fifth Amendment’s protections
against the taking of private property for public use, his Fourteenth
Amendment due process rights, and his Fourteenth Amendment right to equal
protection of the laws. Docket 1 ¶ 168; Docket 8-1 ¶ 31; Docket 12-1 ¶ 13.
(1) 	Consolidated Appropriations Act Claims
Cody alleges that the economic impact payment garnishment violates the
Consolidated Appropriations Act. Docket 12-1 ¶ 13. In order to bring a claim
under § 1983 for violation of a federal statute, a plaintiff must show that the
statute “confer[s] rights on a particular class of persons.” Gonzaga Univ. v. Doe,
536 U.S. 273, 285 (2002) (alteration in original) (quoting California v. Sierra
Club, 451 U.S. 287, 294 (1981)). “Once a plaintiff demonstrates that a statute
confers an individual right, the right is presumptively enforceable by § 1983.”
Id. at 284.
Cody cites § 272 of the Consolidated Appropriations Act, which provided
economic impact payments. See Docket 12-1 ¶ 13. In a note to 26 U.S.C.
§ 6428A, the Consolidated Appropriations Act included the following language:
“[N]o applicable payment shall be subject to, execution, levy, attachment,
garnishment, or other legal process, or the operation of any bankruptcy or
insolvency law.” Consolidated Appropriations Act of 2021, Pub. L. No. 116-260,
134 Stat. 1182, 1972 (Dec. 27, 2020). Cody argues that the application of his
economic impact payments to his debts violated the Consolidated
Appropriations Act. See Docket 12-1 ¶ 13.
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Cody also argues that his Coronavirus Aid, Relief, and Economic Security
Act and Consolidated Appropriations Act payments were mislabeled by the
penitentiary as a tax refund, rendering them subject to garnishment, and that
he could not have received a tax refund because he has not paid income taxes
since before 1977. Docket 1-1 at 64. In a response to a letter written by Cody
on this issue, a DOC official explained that “If an inmate did not receive an
[economic impact payment] in the form of a check from the United States
Treasury with a memo line containing ‘Economic Impact Payment,’ the inmate
had the option to file a 2020 tax return and claim the Recovery Rebate
Credit[.]” Id. at 65. The letter included a page from the IRS website explaining
that “the 2020 Recovery Rebate Credit can be reduced to pay debts owed to
other Federal government agencies . . . as well as to state agencies.” Id. at 66.
The Western District of Michigan has found that § 272 of the
Consolidated Appropriations Act “would seem to fairly imply the right to a
private cause of action.” Beal v. Davids, 2021 WL 2934835, at *5-6 (W.D. Mich.
July 13, 2021). The Beal court allowed a similar claim to go forward for
purposes of screening. See id. This court finds Beal instructive and finds that
Cody states a claim for which relief can be granted under § 1983 and the
Consolidated Appropriations Act. The Consolidated Appropriations Act grants a
property interest in economic impact payments and provides safeguards that
protect that property interest from garnishment, as well as reduction or offset
under certain federal statutes. See Consolidated Appropriations Act of 2021,
134 Stat. at 1972. Thus, Cody’s Consolidated Appropriations Act claim against
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Wasko, Sullivan, Benting, Sprinkel, and John/Jane Does #3 in their individual
capacities and in their official capacities for injunctive relief and against Clark,
Young, Leidholt, and Reisch in their individual capacities survives § 1915A
screening.
(2) 	Fifth Amendment Takings Clause Claims
Cody alleges that the garnishment of his economic impact payments
violated the takings clause of the Fifth Amendment. Docket 1 ¶ 168. Under the
Fifth Amendment, “private property [shall not] be taken for public use, without
just compensation.” U.S. Const. amend. V. The Supreme Court has explained
that “[a]s long as an adequate provision for obtaining just compensation exists,
there is no basis to enjoin the government's action effecting a taking.” Knick v.
Township of Scott, 139 S. Ct. 2162, 2176 (2019). “[C]onsideration other than
cash . . . may be counted in the determination of just compensation.”
Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 151 (1974) (citing Bauman
v. Ross, 167 U.S. 548, 584 (1897)). “Such compensation means the full and
perfect equivalent in money of the property taken. The owner is to be put in as
good [a] position pecuniarily as he would have occupied if his property had not
been taken.” United States v. Winnebago Tribe of Neb., 542 F.2d 1002, 1006
(8th Cir. 1976) (quoting United States v. Miller, 317 U.S. 369, 373 (1943)).
An Eastern District of Arkansas court recently considered the application
of the takings clause to the garnishment of economic impact payments. Hayes
v. Graves, 2022 WL 822881, at *5-6 (E.D. Ark. Mar. 16, 2022). The Hayes
court found that “prisoners are provided with a dollar-for-dollar benefit when
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their stimulus funds are used to pay off their existing court fines, fees, costs, or
restitution.” Id. at *5 (citation and internal quotation omitted). But when
garnished stimulus funds are “diverted to an inmate welfare fund or the
Division of Correction Inmate Care and Custody Fund Account[,]” the takings
clause is violated. Id. at *6.
This court finds Hayes instructive in holding that prisoners receive just
compensation when stimulus funds are put towards existing court fines, fees,
costs, or restitution. Id. Further, this principle applies when stimulus funds are
put towards debts owed to the penitentiary, because the prisoner receives a
reduction in debt owed. See id. Here, Cody alleges that $1,550.99 was
garnished from his economic impact payments as “obligation payments[.]” See
Docket 1 ¶ 146. An account balance attached to Cody’s complaint shows that
obligation payments were applied to a commissary loan, an inmate charges
loan, and two medical co-pay loans. Docket 1-1 at 57-58. The account balance
also shows a Prison Litigation Reform Act payment, $720.42 paid towards
“costs incurred in DOC[,]” and $218.50 paid towards “cost of incarceration.” Id.
This court cannot determine whether the payments made to “costs
incurred in DOC” and “cost of incarceration” reflect a reduction in debt owed.
The account balance lists “unlimited” as the amount owed for “cost of
incarceration[,]” suggesting that the amount Cody could pay for “cost of
incarceration” has no limit and that these payments would not reduce the debt
owed. Id. at 57. Because this court cannot say with certainty that all obligation
payments made from Cody’s economic impact payments provided him with a
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dollar-for-dollar benefit, Cody’s Fifth Amendment takings clause claim against
Wasko, Sullivan, Benting, Sprinkel, and John/Jane Does #3 in their individual
capacities and in their official capacities for injunctive relief and against Clark,
Young, Leidholt, and Reisch in their individual capacities survives § 1915A
screening.
(3) 	Fourteenth Amendment Due Process Claims
Cody alleges that the garnishment of his economic impact payments
violated his Fourteenth Amendment right to due process. Docket 1 ¶ 168.
Under the Fourteenth Amendment, a “state [cannot] deprive any person of life,
liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1.
An intentional deprivation of property does not violate due process if there is an
adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533
(1984). But when “the property deprivation is effected pursuant to an
established state procedure[,]” a post-deprivation state remedy does not satisfy
due process. Id. at 534 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422
(1982)).
In Mahers v. Halford, the Eighth Circuit addressed whether a prison’s
“across-the-board policy of deducting twenty percent from money received by
inmates from outside sources” and paying that money towards criminal
restitution violated inmates’ procedural due process rights. 76 F.3d 951, 954
(8th Cir. 1996). Because the Eighth Circuit found that inmates had a property
interest in the money, it considered the following factors to determine the
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process that was due before the money could be applied to restitution
obligations:
1) the private interest that will be affected by the official action; 2)
the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value of additional or substitute
procedures; and 3) the government's interest, including the function
involved 	and 	the 	fiscal 	and 	administrative 	burdens 	that 	the
additional or substitute procedural requirement would entail.
Id. (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). After balancing
these factors, the Mahers court held that there was no violation of the due
process clause. Id. at 956. Hayes analyzed the garnishment of economic impact
payments under due process protections and found that Mahers “is
authoritative as to restitution and highly persuasive as to court fines, fees, and
costs.” Hayes, 2022 WL 822881, at *6 (citation omitted). The Hayes court
followed its ruling on the takings clause issue, finding that procedural due
process was satisfied for confiscated economic impact payments put towards
restitution, court fines, fees, and costs but not for payments put towards other
funds. Id.
This court again finds Hayes instructive. Cody alleges that the
penitentiary followed an established state procedure in deducting money from
his economic impact payments, and thus a post-deprivation state remedy, such
as a state-law claim for conversion under SDCL § 21-3-3, does not satisfy due
process. See Docket 1-1 at 65 (explaining that Cody’s economic impact
payment was “appropriately processed by the Finance Office per DOC
policy[.]”). To the extent that Cody claims a due process violation for economic
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impact payments put towards restitution, court fines, fees, and costs, he fails
to state a claim. But because this court cannot determine that all deducted
economic impact payments went towards restitution, court fines, fees, and
costs, Cody’s Fourteenth Amendment due process claim against Wasko,
Sullivan, Benting, Sprinkel, and John/Jane Does #3 in their individual
capacities and in their official capacities for injunctive relief and against Clark,
Young, Leidholt, and Reisch in their individual capacities survives § 1915A
screening.
(4) 	Fourteenth Amendment Equal Protection
Claims
Cody alleges that his right to equal protection of the laws under the
Fourteenth Amendment has been violated by the garnishment of his economic
impact payments. Docket 1 ¶ 168. Specifically, he alleges that smaller amounts
have been deducted from other inmates’ economic impact payments, including
only $750 from fellow inmate David Bradley. Docket 8-1 ¶ 27; Docket 12-2 at
7. Again, the government is required to “treat similarly situated people alike”
under the equal protection clause. Murphy, 372 F.3d at 984 (quoting Rouse,
193 F.3d at 942).
Here, Cody fails to claim that he has been treated differently than
similarly situated inmates. Although he claims that other inmates have had
different amounts deducted from their economic impact payments, he makes
no showing that they have similar financial obligations. See Docket 8-1 ¶ 27;
Docket 12-2 at 7. Because deductions are based on the various financial
obligations that a prisoner has incurred, Cody must show that he has similar
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debts to other prisoners in order to claim that they are similarly situated. See
Murphy, 372 F.3d at 984 (requiring plaintiff to “identify the characteristics of
the class he claims to be similarly situated to”). Thus, Cody’s Fourteenth
Amendment equal protection claim against Wasko, Sullivan, Benting, Sprinkel,
and John/Jane Does #3 in their individual capacities and in their official
capacities for injunctive relief and against Clark, Young, Leidholt, and Reisch
in their individual capacities is dismissed without prejudice under 28 U.S.C.
§§ 1915(e)(2)(B)(iii) and 1915A(b)(2).
f. 	Claims Against Dr. Mary Carpenter
Cody brings claims against Dr. Carpenter in her individual capacity and
in her official capacity for injunctive relief for denying him medical care in
violation of his Eighth Amendment right to be free from cruel and unusual
punishment. Docket 1 ¶ 169. Construing his complaint liberally, he claims that
Dr. Carpenter has been deliberately indifferent to his serious medical needs in
violation of the Eighth Amendment. See id. Again, a 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.”
Dulany, 132 F.3d at 1239 (citing Coleman, 114 F.3d at 784)). Allegations of
negligence and mere disagreement with treatment decisions are not deliberate
indifference. See Jolly, 205 F.3d at 1096 (citing Estate of Rosenberg, 56 F.3d at
37).
Here, Cody alleges facts sufficient to state a claim for deliberate
indifference to his serious medical needs in violation of the Eighth Amendment.
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His worsening vocal cord condition, as alleged, is a serious medical need.
Although his claim may be mere disagreement with treatment decisions, he
alleges that Dr. Carpenter is aware of his serious medical need and refuses to
address it. See Docket 1 ¶¶ 159, 161-162. Thus, Cody’s Eighth Amendment
claim for deliberate indifference to serious medical needs against Dr. Carpenter
in her individual capacity and in her official capacity for injunctive relief
survives § 1915A screening.
g. 	Noise Claims
Construing his complaint liberally, Cody brings claims against Badure,
Rotert, and Sullivan in their individual capacities and in their official capacities
for injunctive relief for noise levels at Federal Hall that deprive him of sleep in
violation of his rights under Title II of the ADA, his Eighth Amendment right to
be free from cruel and unusual punishment, and his Fourteenth Amendment
right to equal protection of the laws. See Docket 8-1 ¶ 30; Docket 12-1 ¶¶ 8-
11.8
(1) 	ADA Claims
Cody alleges that Badure, Rotert, and Sullivan violated his rights under
Title II of the ADA, but he does not explain under which theories of
8 Cody does not indicate which claims he brings against Rotert, but he alleges
Rotert is responsible for the noise issues. See Docket 12-1 ¶¶ 9-11. Further, he
names Rotert in the caption of his second supplemental complaint. Id. at 1.
Construing Cody’s complaint liberally, this court considers all noise claims
brought against Badure to be brought against Rotert as well. Because Cody
alleges that he brought these claims to Sullivan’s attention at the penitentiary,
this court also considers these claims to be brought against Sullivan. Id. ¶¶ 10-
11.
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discrimination he brings these claims. See Docket 8-1 ¶ 30; Docket 12-1 ¶¶ 8-
11. Construing his complaint liberally, Cody brings claims against Badure,
Rotert, and Sullivan for intentional discrimination and for failure to provide
reasonable accommodations. See Docket 8-1 ¶ 30; Docket 12-1 ¶¶ 8-11.
Cody fails to allege facts sufficient to state claims for either intentional
discrimination or failure to provide reasonable accommodations. An intentional
discrimination claim requires Cody to show that he was treated differently than
similarly situated nondisabled individuals. See Peebles, 354 F.3d at 766. Cody
makes no showing of disparate treatment, only that his medical conditions
have been exacerbated by the noise in Federal Hall. See Docket 8-1 ¶ 26;
Docket 12-1 ¶ 8. To state a claim for failure to provide reasonable
accommodations, Cody must show that he has been excluded from
penitentiary “services, programs, or activities . . . by reason of his disability.”
Baribeau, 596 F.3d at 484. Cody does not allege that he has been excluded
from penitentiary services, programs, or activities by the failure to enforce
noise rules in Federal Hall. See Docket 8-1 ¶¶ 25-26; Docket 12-1 ¶¶ 8-11.
Thus, Cody’s ADA claims against Badure, Rotert, and Sullivan in their
individual capacities and in their official capacities for injunctive relief are
dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(iii) and
1915A(b)(2).
(2) 	Eighth Amendment Claims
Cody alleges that Badure, Rotert, and Sullivan violated his Eighth
Amendment right to be free from cruel and unusual punishment. Docket 8-1
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¶ 30; Docket 12-1 ¶¶ 8-11. Construing his complaint liberally, he claims that
Badure, Rotert, and Sullivan were deliberately indifferent to conditions of
confinement that violated his Eighth Amendment rights. See Docket 8-1 ¶ 30;
Docket 12-1 ¶¶ 8-11. Again, the plaintiff must show that the conditions rise
above mere discomfort and are inhumane. Williams, 49 F.3d at 445 (citing
Farmer, 511 U.S. at 832). 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.” McMillian, 503 U.S. at 9 (citation and internal
quotation omitted).
Here, Cody fails to allege facts sufficient to state a conditions of
confinement claim. Noisy televisions do not rise above discomfort to inhumane
conditions. Further, although Cody may not be satisfied with Badure’s
recommendation that he speak with an officer when televisions are too loud,
this shows that Badure has not been deliberately indifferent to the issue. See
Docket 8-1 ¶ 25. Similarly, Rotert assured Cody that he had not heard
escalating noise in Federal Hall late at night and that he would discuss the
issue with Badure, and Sullivan told Cody that he had delegated this issue to
Rotert. Docket 12-1 ¶ 11. Thus, Cody’s Eighth Amendment conditions of
confinement claims against Badure, Rotert, and Sullivan in their individual
capacities and in their official capacities for injunctive relief are dismissed
without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(iii) and 1915A(b)(2).
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(3) 	Fourteenth Amendment Claims
Cody alleges that Badure, Rotert, and Sullivan violated his Fourteenth
Amendment right to equal protection of the laws. See Docket 8-1 ¶ 30; Docket
12-1 ¶¶ 8-11. To bring an equal protection claim on the basis of disability, the
plaintiff must show that “(1) [he is] similarly situated with persons who are
treated differently by [the penitentiary], and (2) [the penitentiary] has no
rational basis for the dissimilar treatment.” More, 984 F.2d at 271 (citing
Moreland, 968 F.2d at 660). Here, Cody fails to show that he has been treated
differently than similarly situated persons because other inmates in Federal
Hall are exposed to the same noise of which he complains. See Docket 8-1
¶¶ 25-26. Thus, Cody’s Fourteenth Amendment equal protection claims against
Badure, Rotert, and Sullivan in their individual capacities and in their official
capacities for injunctive relief are dismissed without prejudice under 28 U.S.C.
§§ 1915(e)(2)(B)(iii) and 1915A(b)(2).
II. 	Motion for Temporary Restraining Order and Preliminary Injunction
Cody filed a motion for a preliminary injunction. Docket 4. “A preliminary
injunction is an extraordinary remedy[.]” Roudachevski v. All–American Care
Ctrs., Inc., 648 F.3d 701, 705 (8th Cir. 2011); see also Hughbanks v. Dooley,
788 F. Supp. 2d 988, 992 (D.S.D. 2011). “The burden of proving that a
preliminary injunction should be issued rests entirely with the movant.” Goff v.
Harper, 60 F.3d 518, 520 (8th Cir. 1995) (citation omitted).
When ruling on a preliminary injunction, the court considers “(1) the
threat of irreparable harm to the movant; (2) the state of the balance between
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this harm and the injury that granting the injunction will inflict on other
parties litigant; (3) the probability that movant will succeed on the merits; and
(4) the public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113
(8th Cir. 1981) (en banc). Since Dataphase, the Eighth Circuit has “observed
that the ‘likelihood of success on the merits is most significant.’ ” Barrett v.
Claycomb, 705 F.3d 315, 320 (8th Cir. 2013) (quoting S.J.W. ex rel. Wilson v.
Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012)).
Further, The Eighth Circuit has held that “the failure to show irreparable
harm is, by itself, a sufficient ground upon which to deny a preliminary
injunction[.]” Adam–Mellang v. Apartment Search, Inc., 96 F.3d 297, 299 (8th
Cir. 1996) (quoting Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th
Cir. 1987)). “To demonstrate irreparable harm, a plaintiff must show that the
harm is ‘certain, great and of such imminence that there is a clear and present
need for equitable relief.’ ” Gard v. Dooley, 2014 WL 4243586, at *1 (D.S.D.
Aug. 26, 2014) (quoting Packard Elevator v. Interstate Com. Comm’n, 782 F.2d
112, 115 (8th Cir. 1986)). A “plaintiff must make a showing of actual,
substantial harm resulting from the alleged infringement.” Gard, 2014 WL
4243586, at *1 (quoting Travelers Express Co. v. Transaction Tracking Techs.,
Inc., 305 F. Supp. 2d 1090, 1095 (D. Minn. 2003)).
Moreover, “in the prison context, a request for injunctive relief must
always be viewed with great caution because ‘judicial restraint is especially
called for in dealing with the complex and intractable problems of prison
administration.’ ” Goff, 60 F.3d at 520 (quoting Rogers v. Scurr, 676 F.2d 1211,
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1214 (8th Cir. 1982)). And “for an injunction to issue ‘a right must be violated’
and . . . ‘the court must determine’ whether ‘a cognizable danger of future
violation exists and that danger must be more than a mere possibility.’ ” Id.
(quoting Rogers, 676 F.2d at 1214).
Here, it is too early in the case to determine that Cody is likely to prevail
on the merits. Cody’s allegation that he has been denied medication and
treatment, which expose him to risk of serious harm, are serious allegations.
But at this stage, they are supported only by his complaint. As a result, his
motion for a preliminary injunction is denied at this time, but the court will
reconsider it upon motion of Cody after defendants respond to Cody’s
complaint.
Cody also moves for a temporary restraining order. Docket 4. Under the
Federal Rules of Civil Procedure, a court may issue a temporary restraining
order without notice to the adverse party only if “specific facts . . . clearly show
that immediate and irreparable injury, loss, or damage will result to the
movant before the adverse party can be heard in opposition[.]” Fed. R. Civ. P.
65(b)(1)(A). This court denies Cody’s motion for a temporary restraining order
for the same reason it has denied the motion for preliminary injunction.
Thus, it is ORDERED:
1. 	That 	Cody’s 	claims 	for 	money 	damages 	against 	all 	individual
defendants 	in 	their 	official 	capacities 	are 	dismissed 	without
prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(iii) and 1915A(b)(2).
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2. 	That 	Cody’s 	denial 	of 	medical 	care 	claims 	against 	Sullivan,
Lengkeek, and Badure in their individual capacities and in their
official capacities for injunctive relief and against Clark and Dreiske
in 	their 	individual 	capacities 	for 	failure 	to 	provide 	reasonable
accommodations in violation of Title II of the ADA, for deliberate
indifference to serious medical needs in violation of the Eighth
Amendment, and for violation of his Fourteenth Amendment right to
equal protection of the laws survive § 1915A screening.
3. 	That Cody’s claims against Elton in his individual capacity and in
his official capacity for injunctive relief for intentional discrimination
and failure to provide reasonable accommodations in violation of
Title II of the ADA, for retaliation in violation of Title V of the ADA,
for deliberate indifference to conditions of confinement in violation
of 	the 	Eighth 	Amendment, 	for 	violation 	of 	his 	Fourteenth
Amendment right to equal protection of the laws, and for retaliation
in violation of the First Amendment survive § 1915A screening.
4. 	That Cody’s claims against Fenolio and John/Jane Does #2(b) in
their 	individual 	capacities 	and 	in 	their 	official 	capacities 	for
injunctive 	relief 	for 	deliberate 	indifference 	to 	conditions 	of
confinement in violation of the Eighth Amendment survive § 1915A
screening.
5. 	That Cody’s quarantine conditions claims against Sullivan, Ponto,
and John/Jane Does #2(c) in their individual capacities and in their
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official capacities for injunctive relief, against Clark and Reisch in
their individual capacities, and against Wasko in her official capacity
for 	injunctive 	relief 	for 	deliberate 	indifference 	to 	conditions 	of
confinement in violation of the Eighth Amendment survive § 1915A
screening.
6. 	That Cody’s economic impact payment garnishment claims against
Wasko, Sullivan, Benting, Sprinkel, and John/Jane Does #3 in their
individual capacities and in their official capacities for injunctive
relief 	and 	against 	Clark, 	Young, 	Leidholt, 	and 	Reisch 	in 	their
individual capacities for violation of the Consolidated Appropriations
Act, for violation of the takings clause of the Fifth Amendment, and
for 	violation 	of 	his 	due 	process 	rights 	under 	the 	Fourteenth
Amendment survive § 1915A screening.
7. 	That Cody’s claims against Dr. Carpenter in her individual capacity
and 	in 	her 	official 	capacity 	for 	injunctive 	relief 	for 	deliberate
indifference to serious medical needs in violation of the Eighth
Amendment survive § 1915A screening.
8. 	That 	all 	of 	Cody’s remaining 	claims 	against 	all 	defendants 	are
dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1).
9. 	That the Clerk shall send blank summons forms and Marshal
Service Forms (Form USM-285) to Cody so that he may cause the
complaint 	to 	be 	served 	upon 	defendants 	Sullivan, 	Dreiske,
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Lengkeek, Badure, Clark, Elton, Fenolio, John/Jane Does #2(b),
Ponto, John/Jane Does #2(c), Reisch, Wasko, Benting, Sprinkel,
John/Jane Does #3, Young, Leidholt, and Dr. Carpenter.
10. 	That Cody shall complete and send the Clerk of Court a separate
summons and USM-285 form for defendants Sullivan, Dreiske,
Lengkeek, Badure, Clark, Elton, Fenolio, John/Jane Does #2(b),
Ponto, John/Jane Does #2(c), Reisch, Wasko, Benting, Sprinkel,
John/Jane Does #3, Young, Leidholt, and Dr. Carpenter. 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.
11. 	The 	United 	States 	Marshal 	Service 	shall 	serve 	the 	completed
summons, together with a copy of the complaint (Docket 1), the
supplemental complaints (Dockets 8-1 and 12-1), and this order,
upon defendants Sullivan, Dreiske, Lengkeek, Badure, Clark, Elton,
Fenolio, 	John/Jane 	Does 	#2(b), 	Ponto, 	John/Jane 	Does 	#2(c),
Reisch, 	Wasko, 	Benting, 	Sprinkel, 	John/Jane 	Does 	#3, 	Young,
Leidholt, and Dr. Carpenter.
12. 	Defendants 	Sullivan, 	Dreiske, 	Lengkeek, 	Badure, 	Clark, 	Elton,
Fenolio, 	John/Jane 	Does 	#2(b), 	Ponto, 	John/Jane 	Does 	#2(c),
Reisch, 	Wasko, 	Benting, 	Sprinkel, 	John/Jane 	Does 	#3, 	Young,
Leidholt, 	and 	Dr. 	Carpenter 	will 	serve 	and 	file 	an 	answer 	or
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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).
13. 	Cody 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.
14. 	Cody’s motion to amend/supplement complaint and motion for
second supplemental complaint (Dockets 8 and 12) are granted.
15. 	Cody’s motion for a preliminary injunction and for a temporary
restraining order (Docket 4) is denied.
Dated May 18, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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