McPeek v. Meyers et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
TRAVIS R. MCPEEK,
Plaintiff,
vs.
CO MEYERS,CORRECTIONAL OFFICER
AT MIKE DURFEE STATE PRISON,IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
CO LUCERO,CORRECTIONAL OFFICER
AT MIKE DURFEE STATE PRISON,IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
UM KLIMEK,EAST CRAWFORD UNIT
MANAGER AT MIKE DURFEE STATE
PRISON,IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; LT. DYKSTRA,
OFFICER AT MIKE DURFEE STATE
PRISON,IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; UNKNOWN MAIL
ROOM OFFICER(S), CORRECTIONAL
OFFIER(S) AT MIKE DURFEE STATE
PRISON,IN HIS/HER INDIVIDUAL AND
OFFICIAL CAPACITY; WARDEN BRENT
FLUKE, WARDEN AT MIKE DURFEE
STATE PRISON,IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; UC KELLY
TJEERDSMA,EAST CRAWFORD UNIT
COORDINATOR/OFFICER AT MIKE
DURFEE STATE PRISON,IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
CO LIVINGSTON, CORRECTIONAL
OFFICER AT MIKE DURFEE STATE
PRISON,IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; DEPUTY WARDEN
SCHIEFFER,DEPUTY WARDEN AT MIKE '
DURFEE STATE PRISON,IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
WARDEN ROBERT DOOLEY,WARDEN AT
4:20-CV-04078-RAL
1915A SCREENING DISMISSING IN PART
AND DIRECTING SERVICE IN PART
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MIKE DURFEE STATE PRISON IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
UNKOWN PROPERTY OFFICER,
CORRECTIONAL OFFICER AT MIKE
DURFEE STATE PRISON,IN HIS/HER
INDIVIDUAL AND OFFICIAL CAPACITY;
SD BOARD OF PARDONS AND PAROLEES,
CORRECTIONAL OFFICER(S)/SOUTH
DAKOTA BOARD MEMBER(S)AT SOUTH
DAKOTA DEPARTMENT OF
CORRECTIONS,IN THEIR INDIVIDUAL
AND OFFICIAL CAPACITY; WARDEN
DARIN YOUNG,WARDEN AT THE
"HILL" AND/OR
SIOUX FALLS PRISON,IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
LISA ROTHSCHADL,COUNTY ATTORNEY
AT BON HOMME COUNTY,SD,IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
MARK PAYER,JAIL
ADMINISTRATOR/OFFICER AT YANKTON
COUNTY JAIL, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; GLEN ENG,JUDGE
AT BON HOMME COUNTY COURTHOUSE,
IN HIS DIDIVIDUAL AND OFFICIAL
CAPACITY; AND KELLY YOUNG,POLICE
OFFICER AT TYNDALL POLICE
DEPARTMENT,IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY;
Defendants.
Plaintiff Travis P. McPeek filed a pro se lawsuit under 42 U.S.C. § 1983. Doc. 1. This
Court granted McPeek leave to proceed in forma pauperis. Doc. 5. McPeek timely filed his initial
partial filing fee. This Court must now screen MePeek's complaint under 29 U.S.C. § 1915A.
I. Factual Allegations of MePeek's Complaint
McPeek claims that Correctional Officer Meyers inappropriately touched his chest on
May 16, 2018. Doc. 1 at 8. He filed a grievance about the alleged oeeurrence and claims that
after he filed the grievance he was handcuffed and forced into a segregation cell while naked. Id
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While in segregation, he claims he was denied a Bible and was not allowed to call his attorney or
his mother. Id, McPeek claims that he was told that he was placed into segregation because he
filed the grievance. Id,
He alleges that his personal mail has been denied on several occasions without
notification. Id, at 10-13. McPeek asserts that his personal mail has been confiscated because the
mail policy is vague and overbroad. Id, at 13. He claims that Unit Coordinator Kelly Tjeerdsma
has taken away,his legal copies and case law as well as his phone access making McPeek unable
to contact his attorney and causing McPeek insomnia and anxiety. Id at 14, 25. McPeek claims
that at the time he was bringing a pro se lawsuit in a federal court in Arizona and that his rejected
mail—allegedly including police reports, forensic reports and photographs—and has delayed his
court filings. Id. at 15.
McPeek also claims that Bon Homme County Attorney Lisa Rothschadl filed a motion to
remove the law library from the Yankton County Jail and that Judge Glen Eng granted the
motion. Id at 27. McPeek asserts that the actions of Rothschadl and Judge Eng have caused the
dismissal of his federal and state cases because he was "unable to follow court rules properly"
and that the outcome of his underlying state court criminal conviction could have been different.
Id At his underlying criminal trial, McPeek alleges that the jury was biased and he was denied a
change of venue. Id at 28-29. He also claims that the evidence used to convict him was illegally
obtained in violation of his Fourth Amendment rights. Id McPeek-wants to "preserve his right"
to file a § 1983 complaint after he exhausts the post-conviction process in state and federal
courts. Id
McPeek claims that his property has been confiscated from him and he has not been
reimbursed for his losses. Id at 16—20,26. McPeek asserts that his Fourteenth Amendment right
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to due process has been violated by defendants when they took his property: a money transfer of
$10.00, soeks, $8.00 in tokens, a fraudulent charge for a "capacitor," $25.00 for a fine, and a
confiscated cable cord taken during shakedown. Id.
McPeek asserts that Warden Brent Fluke and the South Dakota Board ofParole are
abusing their discretion with his parole eligibility. Id at 24. McPeek also challenges the
calculation of his parole eligibility date and claims that he was transferred to the South Dakota
State Penitentiary(SDSP)as retaliation for challenging his parole. Id. at 21. He claims that
during this transfer he was required to wear shackles, leg irons, and a belly chain in violation of
the Eighth Amendment. Id. He alleges that he was placed in a tiny cell with another inmate and
the space was so small he could not do a pushup. Id. at 22. McPeek claims that being in such a
small cell was torture and that he suffered severe anxiety attacks while in the cell. Id He also
claims that there was prison construction so loud that he may have suffered ear damage. Id. at 23.
McPeek claims that this is in violation ofthe Eighth Amendment and the standards set forth by
the Occupational Safety and Health Administration(OSHA).Id MePeek brings nineteen
different "Counts" in his complaint. See Doc. 1. He sues defendants in their individual and
official capacities and seeks monetary damages and injunctive relief on all claims except 18 and
19 where he reserved the right to sue. S^ id at 2-4, 31-34.
II. Discussion
A. Screening and Dismissal Standards
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). Civil rights and pro se 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
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specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1334, 1337(8th Cir.
1985); see also Ellis v. City of Minneapolis. 518 F. App'x 502, 504(8th Cir. 2013). Civil rights
eomplaints cannot be merely conclusory. Davis v. Hall, 992 F.2d 151, 152(8th Cir. 1993);
Parker v. Porter. 221 F. App'x 481,482(8th Cir. 2007).
A complaint"does not need detailed factual allegations ...[but] requires more than
labels and eonclusions, and a formulaic recitation of the elements of a eause of action will not
do." Bell Atl. Com,v. Twomblv. 550 U.S. 544, 555(2007). If it does not eontain these bare
essentials, dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657,663 (8th Cir. 1985).
Twomblv requires that a eomplaint's faetual allegations be "enough to raise a right to relief
above the speculative level on the assumption that all the allegations in the complaint are true.
550 U.S. at 555; see also Abdullah v. Minnesota, 261 F. App'x 926, 927(8th Cir. 2008)(noting
that a eomplaint must contain either direct or inferential allegations regarding all material
elements necessary to sustain recovery under some viable legal theory). Under 28 U.S.C. §
1915A,the court must screen prisoner eomplaints and dismiss them ifthey are "(1)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 eaeh individual elaim under 28 U.S.C. § 1915A.
B. MePeek's Causes of Action
1. Claims against the State of South Dakota
McPeek sues the South Dakota Board ofPardon and Paroles. Doc. 1 at 4. The Eleventh
Amendment bars suit against a state entity, as opposed to a state official, regardless of whether
money damages or injunctive relief is sought. Corv v. White,457 U.S. 85,90(1982). In
determining whether an entity is entitled to Eleventh Amendment immunity, the court examines
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whether its powers were created by state law, the degree ofits autonomy and control, and
whether it is funded by the state treasu^. Greenwood v. Ross, 778 F.2d 448, 453 (8th Cir. 1985).
According to South Dakota statutes, the Parole Board is a division of the Department of
Corrections. SDCL § 24-13-3. The Department of Corrections was created by the state
legislature, SDCL § 1-15-1.2, as was the Parole Board. SDCL § 24-13-1. Each member of the
Board is appointed "with the advice and consent of the Senate," SDCL § 24-13-1, and their
salaries are paid from the state budget. SDCL §§ 24-13-5; 4-7-10.4. The Board controls and
supervises all parolees in the State. The Parole Board is an arm of the State of South Dakota and,
as such, is not subject to suit under § 1983. McPeek's claims against the South Dakota Board of
Pardons and Paroles are dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and 1915A(b)(l).^
2. Judicial Immunity
McPeek names Judge Glen Eng(a now-retired judge for the First Judicial Circuit for the
state of South Dakota) as a defendant and sues him in his individual and official capacity. Doc. 1
at 4. McPeek asserts that Judge Eng allowed for illegally seized evidence to be used to convict
him during his underlying criminal conviction. Id at 28-29. Judges are generally immune from
suit if the judge had jurisdiction over the partv. See Stump v. Sparkman. 435 U.S. 349, 356-57
^ Because the South Dakota Parole Board is dismissed as a defendant, this Court will not address
the claims specifically alleged against it (Counts XI and XIV). Doc. 1 at 21, 24. McPeek claims
that that a South Dakota Government Official and Warden Fluke have abused their discretion in
retaliations when ealculating his parole eligibility. Id The Eighth Circuit has held that parole board
members are absolutely immune from suit for considering and deciding parole questions, whether
the decision is based on lawful or unlawful eonsiderations. S^ Patterson v. Von Rieson. 999 F.2d
1235,1239 (8th Cir. 1993). Because members of the parole board are also protected, his claims
(Counts XI and XIV)against a South Dakota Government Official and Warden Fluke(to the extent
that McPeek's claims relate to parole eligibility before the parole board) are also dismissed under
28 U.S.C. §§ I9I5(e)(2)(B)(i-ii) and 1915A(b)(l).
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(1978)("[T]he necessary inquiry in determining whether a defendant judge is immune from suit
is whether at the time he took the challenged action he had jurisdiction over the subject matter
before him.")."A judge will not be deprived ofimmunity because the action he took was in
error, was done maliciously, or was in excess of his authority; rather, he will be subject to
liability only when he has acted in the 'clear absence of all jurisdiction.'" Ifr at 357-58 (quoting
Bradlev v. Fisher. 80 U.S. 335, 351 (1871)).
Judges are immune from suit with two narrow exceptions. See Schottel v. Young. 687
F.3d 370, 373 (8th Cir. 2012).'"First, a judge is not immune from liability for nonjudicial
actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for
actions, though judicial in nature, taken in the complete absence of all jurisdiction.'" Id.(quoting
Mireles v. Waco. 502 U.S. 9, 11-12(1991)). These exceptions do not apply here. Judge Eng had
jurisdiction over McPeek when he was being criminally prosecuted by the state of South Dakota,
and his actions were taken within his judicial capacity. Thus, McPeek's claims against Judge Eng
are dismissed under 28 U.S.C. §§ 1915(e)(B)(i-ii) and 1915A(b)(l).
3. Official Capacity Claims
a. Employees of the South Dakota Department of Corrections
McPeek sues Correctional Officer("CO") Meyers, CO Lucero, Unit Manager("UM")
Klimek, Lieutenant("Lt.") Dykstra, Unknown Mail Room Officers at Mike Durfee State Prison
("MDSP"), Unknown Property Officer at MDSP,Warden Darin Young, Warden Brent Fluke,
Warden Schieffer, Warden Robert Dooley, Unit Coordinator("UC") Kelly Tjeerdsma, and CO
Livingston in their individual and official capacities. Doc. 1 at 2-4.^ McPeek notes that these
^ These defendants will be collectively referred to as South Dakota Department of Corrections
("SDDOC")defendants.
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individuals work for the South Dakota Department of Corrections. Id As the Supreme Court has
stated,"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 But when an official capacity
claim is asserted for injunctive relief against a state officer, the defense of qualified immunity
does not apply. See Pearson v. Callahan. 555 U.S. 223, 242-43 (2009). Here, McPeek seeks to
recover money damages. Doc. 1 at 31-34, through suing SDDOC defendants in their official
capacities, and thus, McPeek has effectively asserted a claim for money damages against the
state of South Dakota. The state of South Dakota has not waived its sovereign immunity. Thus,
to the extent McPeek seeks to hold SDDOC defendants liable in their official capacities for
money damages, the SDDOC defendants are protected by sovereign immunity and are entitled to
judgment as a matter oflaw.
b. Employee of the Tyndall Police Department
McPeek sues Kelly Young, a police officer for the Tyndall Police Department in her
individual and official capacity. Doc. 1 at 4. Claims against the Tyndall Police Department are
the equivalent of a lawsuit against the City of Tyndall. See Veatch v. Bartels Lutheran Home.
627 F.3d 1254, 1257(8th Cir. 2010). A municipal government may only be sued "when
execution of a government's policy or custom, whether made by its lawmakers or by those
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whose edicts or acts may fairly be said to represent official policy," deprives a plaintiff of a
federal right. Monell v. Dept. of Soc. Servs., 436 U.S. 658,694(1978). McPeek does not allege
that the City of Tyndall has unconstitutional policies or customs; thus, his claims against Kelly
Young in her official capacity are dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and
1915A(b)(l).
c. Employee of Bon Homme County
McPeek sues Lisa Rothschadl, a Bon Homme County State's Attorney, in her individual and
official capacity. Doc. 1 at 4. Claims against Rothschadl in her official capacity are the
equivalent of a lawsuit against Bon Homme County. See Veatch, 627 F.3d at 257. A county may
only be sued "when execution of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy,"
deprives a plaintiff of a federal right. Monelk 436 U.S. at 694. McPeek does not allege that Bon
Homme County has unconstitutional policies or customs; thus, his claims against Rothschadl, in
her official capacity, are dismissed under.28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and 1915A(b)(l).
d. Employee of the Yankton County Jail
McPeek sues Mark Payer, the Office Administrator at the Yankton County Jail, in his
individual and official capacity. Doc. 1 at 4. Claims against Payer in his official capacity are the
equivalent of a lawsuit against Yankton County Jail. S^ Veatch,627 F.3d at 257. The Eighth
Circuit has held that "county jails are not legal entities amenable to suit." Owens v. Scott Countv
Tail. 328 F.3d 1026, 1027(8th Cir. 2003)(citing De La Garza v. Kandivohi Countv Jail, 18 Fed.
Appx. 436, 437(8th Cir. 2001)). Thus, McPeek's claims against Payer, in his official capacity
are dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and 1915A(b)(l).
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4. Individual Capacity Claims
a. Access to the Courts
In Counts I, IV, V,XV,and XVII, McPeek alleges that his First Amendment right to
aecess the courts has been violated. Doe. 1 at 9, 14, 15, 25, 27."The Constitution guarantees
prisoners a right to access the courts." White v. Kautzky, 494 F.3d 677,679(8th Cir. 2007). To
succeed on a claim for denial of access to the courts, a plaintiff must show that he suffered actual
injury as a result ofthe defendants' actions. Lewis v. Casey. 518 U.S. 343, 347,(1996). In order
to satisfy the actual injury requirement, a plaintiff must "demonstrate that a nonfrivolous legal
claim had been ftustrated or was being impeded." Johnson v. Missouri. 142 F.3d 1087, 1089 (8th
Cir. 1998)(quoting Lewis, 518 U.S. at 353)."The right of access to the courts is satisfied if the
prisoner has the capability of bringing contemplated challenges to sentences or conditions of
confinement before the courts." Zink v. Lombardi. 783 F.3d 1089, 1108 (8th Cir. 2015).
An actual injury cannot be established if the law library or legal assistance
program is merely "subpar," but the inmate:
must go one step further and demonstrate that the alleged shortcomings in the
library or legal assistance program hindered his efforts to pursue a legal claim. He
might show,for example, that a complaint he prepared was dismissed for failure to
satisfy some technical requirement which, because of deficiencies in the prison's
legal assistance facilities, he could not have known. Or that he had suffered
arguably actionable harm that he wished to bring before the courts, but was so
stymied by inadequacies of the law library that he was unable even to file a
complaint.
Lewis, 518 U.S. at 351. In Count I, MePeek vaguely references his right to access to the courts
when he claims that he was in a segregation cell and was not allowed to call his attorney. Doc. 1
at 8. McPeek does not allege an actual injury that occurred firom not being able to call his
attorney; thus, his access to the courts claim in Count I is dismissed under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
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In Count IV, McPeek alleges that Tjeerdsma took his copies of case law and what he
refers to as "legal work" and that this has caused him insomnia and mental anguish. Doc. 1 at 14.
In Count XV,McPeek claims that Tjeerdsma took away his phone privileges and he was unable
to call his attorney to talk about pending legal matters. Id at 25. In both Counts VI and XV,
McPeek fails to allege that a non-frivolous legal claim had been frustrated or impeded; thus, his
access to courts claims in Count IV and XV against Tjeerdsma are dismissed under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
In Count V, McPeek claims that Livingston and Fluke rejected his inmate mail (allegedly
containing police and forensic reports) that he needed for a federal pro se lawsuit in Arizona.
Doc. I at 15. McPeek argues that the rejection of this mail has caused him delays in his court
filings. Id This Court has previously addressed that a delay in filing without more does not give
rise to an actual injury. See Codv v. McDonald. No. 4:14-CV-04155-RAL, 2016 U.S. Dist.
LEXIS 32121, at *9-10(D.S.D. March 14, 2016)fciting Johnson v. Barczak, 338 F.3d 771, 773
(7th Cir. 2003))(finding that a one-year delay caused by prison officials did not affect plaintiffs
ability to pursue the case because "a delay becomes an injury only if it results in 'actual
substantial prejudice to specific litigation'")^ Purkev v. Green,28 F. App'x 736, 742(10th Cir.
2001)(finding that because plaintiff was able to file his claims that "[a]t worst, defendants'
misconduct temporarily, hut not fatally, delayed, and did not unreasonably hinder, the filing of
[plaintiffs] claims"). Thus, McPeek's access to the courts claim in Count V against Livingston
and Fluke is dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
In Count XVII, McPeek claims that Bon Homme County Attorney Rothschadl and Jail
Administrator Payer through their actions—Rothschadal allegedly filed a motion to remove the
law library and Payer acted on the granted motion—have removed the law library from the
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Yaiikton County Jail. Doc. 1 at 27. McPeek alleges that because of these actions his state and
federal cases were dismissed because he was unable to properly follow court rules and if he
would have had access, it could have produced a possible different outcome in his criminal
matters. Id At this stage, the Court must assume the facts alleged are true. A complete removal
of the law library at the Yankton County Jail cannot be considered merely a "subpar" library, but
a complete denial of McPeek's ability to litigate his claims as a pro se party. See Lewis. 518 U.S.
at 351. Thus, McPeek has alleged enough facts to support a denial of access to the courts claim
in Count XVII against Payer because he claims the complete removal of the law library caused
his lawsuits to be dismissed. However, McPeek's claim that Bon Home County Attomey bears
responsibility for removal of the Yankton County Jail's library is too far afield to survive
screening. McPeek's access to courts claim in Count XVII against Payer in his individual
capacity survives §1915A screening.
c. Fourteenth Amendment Due Process Clause Claims
McPeek claims that certain defendants have violated his Fourteenth Amendment due
process rights because he has allegedly been deprived of property without due process. See Doc.
1. McPeek alleges that:(1)his money transfer of$10.00 was never refunded by Schieffer(Claim
VI);(2)Tjeerdsma and Fluke confiscated socks that he had purchased and never reimbursed him
for the confiscation(Count Vll);(3)Tjeerdsma and Fluke confiscated $8.00 worth of tokens
from him (Count VIII);(4) Warden Dooley and the Unknown Property Officer fraudulently
charged him for a "capacitor" for a rental television(Count IX);(5)Tjeerdsma sanctioned him a
$25.00 fine for receiving a tattoo even though there allegedly was no proof that McPeek was
getting a tattoo (Count X); and(6)Tjeerdsma confiscated a cable cord during a shakedown
(Count XVI). Id at 16-19, 20, 26.
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It is well established that if there is an adequate state postdeprivation remedy, then there
is no due proeess violation for even the intentional deprivation of a prisoner's property. Hudson
V. Palmer. 468 U.S. 517, 533 (1984). Because state law provided the prisoner in Hudson with
adequate state remedies after the deprivation of his property, the Court held that no due process
violation occurred in that case. Ift at 535. Here, SDCL § 21-3-3 provides an adequate
postdeprivation remedy. This statute provides a cause of action for wrongful conversion of
personal property. See SDCL § 21-3-3. Section 21-3-3 provides a description of the damages
available for conversion, but the tort of conversion is a common law tort not defined in the
statute. Rensch v. Riddle's Diamonds of Rapid Citv. Inc.. 393 N.W.2d 269, 271 (S.D. 1986).
"Conversion is the unauthorized exercise of control or dominion over personal property in a way
that repudiates an owner's right in the property or in a manner inconsistent with such right."
Chem-Age Indus.. Inc. v. Glover, 652 N.W.2d 756, 766(S.D. 2002). The common law and
SDCL § 21-3-3 provide McPeek with an adequate postdeprivation remedy for the conversion of
his property. Thus, there is no due process violation. Hudson,468 U.S. at 535. MePeek's due
process claims(Counts VI, Vll, Vlll, IX,X,XVI)are dismissed under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(l), and he is free to address those alleged deprivations in
state court under state statutes.
c. Eighth Amendment Conditions of Confinement
In Counts Xll and Xlll, McPeek mentions the Eighth Amendment and claims that the
conditions of his cell were unconstitutional. Doc. 1 at 22—23. "[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 v. Brennan, 511 U.S. 825, 83 (1994)). The Supreme Court has
clarified that only "extreme deprivations" that deny "the minimal civilized measure of life's
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necessities are sufficiently grave to form the basis" of an Eighth Amendment violation. Hudson v.
McMillian,503 U.S. 1,9(1992)(internal quotation marks omitted). The Supreme Court has listed
as basic human needs "food, clothing, shelter, medical care, and reasonable safety." Helling v.
McKinnev- 509 U.S. 25, 32(1993)(internal quotation marks 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 ofthe minimal civilized measures of life's
necessities, or to constitute a substantial risk of serious harm to his health or safety; and (2)
subjectively, the defendants were deliberately indifferent to the risk of harm posed by the
deprivation. Revels v. Vincenz. 382 F.3d 870, 875 (8th Cir. 2004); Simmons v. Cook. 154 F.3d
805, 807 (8th Cir. 1998). An Eighth Amendment challenge to conditions of confinement must
examine the totality ofthe 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. Villanueva,659 F.2d at 854; see
also Tvler v. Black, 865 F.2d 181, 183 (8th Cir. 1989). In Burks v. Teasdale, the Eighth Circuit
noted that "[w]e do not hold categorically that putting two men in a cell with a floor space no
larger than 65 square feet either'is or is not constitutionally permissible. We think that a good deal
may depend on the type of institution involved, the nature of the inmates, and the nature of the
confinement itself." 603 F.2d 59,63 (8th Cir. 1979).
In Count XII, McPeek claims that when he was transferred to SDSP, he was assigned to a
small cell with another inmate. Doc. 1 at 22. MePeek claims that the cell was so small he could
not do a pushup in the cell and there was nowhere to write. Id. He claims that he suffered severe
anxiety attacks due to the limited space and claims that being placed in such a small space is
torture. Id Next,in Count XIII, MePeek alleges that there was construction going on at SDSP and
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the noise ofpower tools caused him ear pain and a headache. Id at 23. McPeek claims that Young
is responsible for and caused the alleged violations and that he submitted complaints to the staff
about the conditions. Id At this time, McPeek has alleged sufficient facts to show that the
cumulative effect ofhis confinement while at SDSP was unconstitutional and that Young allegedly
knew about the conditions. Thus, his Eighth Amendment conditions of confinement claims
(Counts XII and XIII) against Young survive § 1915A screening.
d. Mail Policies
In Counts II and III, McPeek alleges that Fluke (through making the mail policy) and the
Unknown Mail Officers have violated his First Amendment right offreedom of expression and
association as well as the Fourteenth Amendment due process clause. Doc. 1 at 10-13. McPeek
claims that his mail was denied without anyone giving him notice because the mail had pencil,
ink, or highlighter on it. Id McPeek claims that the mail policy is overbroad and vague. Id At
this time, this Court cannot say that these claims are wholly without merit and McPeek's First
Amendment and Fourteenth Amendment claims(Counts II and III) regarding the mail policy
against Fluke and the Unknown Mail Officers survive § 1915A screening.
e. Retaliation
In Count I, McPeek asserts a retaliation claim. Doc. 1 at 8, asserting that he was retaliated
against for filing a grievance about Meyers inappropriately touching his chest. Id McPeek
alleges that after he filed his grievance, he was handcuffed, forced to get naked, and placed in a
segregation cell. Id He was allegedly told by Klimek that he was placed there because ofthe
grievance he had filed. Id He brings this claim against defendants Klimek, Meyers, Dykstra, and
Lucero. Id To establish a prima facie case of retaliation, McPeek is required to allege that:(1)he
was engaged in constitutionally protected conduct;(2) an official took actions against him that
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would deter a similarly situated individual from exercising his constitutional rights; and(3)the
official's retaliatory actions were motivated by McPeek's constitutionally-protected conduct.
Carroll 262 F.3d at 850. Normally, a prison grievance procedure is merely a procedural right
and does not rise to a protected constitutional right. See Bucklev v. Barlow, 997 F.2d 494,495
(8th Cir. 1993).
A plaintiff must allege more than a defendant's failure to process the grievances to bring
an action under § 1983. Ifr Because McPeek has alleged facts that his grievance was connected
to a constitutionally protected activity—his right to be free from cruel and unusual punishment in
the form of alleged sexual assault by a prison guard—his retaliation claim (Count I) against
Klimek, Meyers, Dykstra, and Lucero survives § 1915A screening.
f. Free Exercise of Religion
McPeek vaguely mentions his freedom ofreligion in Count I when he claims that when
he was denied access to the Bible when held in the segregation cell. Doc. 1 at 8. In order to state
a First Amendment claim, McPeek must allege facts tending to show that prison officials have
substantially burdened the free exercise of his religion. See Patel v. U.S. Bureau of Prisons, 515
F.3d 807, 813 (8th Cir. 2008). Substantially burdening one's free exercise of religion means that
the regulation "must significantly inhibit or constrain conduct or expression that manifests some
central tenet of a [person's] individual religious beliefs; must meaningfully curtail a [person's]
ability to express adherence to his or her faith; or must deny a [person's] reasonable
opportunities to engage in those activities that are fundamental to a [person's] religion." Murphv
V. Mo. Dep't of Corr.. 372 F.3d 979, 988 (8th Cir. 2004)(internal quotation marks omitted).
Here, McPeek does not point to a prison regulation that he claims violated his First Amendment
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rights, but complains about a single occurrence. Doc. 1 at 8. Thus, McPeek's First Amendment
claim in Count I is dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
g. Claims Barred by Heck v. Humphrey
McPeek claims that the jury at his state trial was not impartial and that he was improperly
denied a change of venue. Doc. 1 at 28. He alleges that Officer Young conducted an illegal
search and seizure and that Judge Eng allowed the illegally seized evidence into trial. Id. at 29. In
short, McPeek claims that his state conviction was unconstitutional. Under Heck v. Humphrev.
"in order to recover damages for [an] allegedly unconstitutional conviction or .. . for other harm
caused by actions whose unlawfulness would render a conviction or sentence invalid," a plaintiff
must show that the "conviction or sentence [was] reversed, expunged, invalidated, or impugned
by the grant of a writ of habeas corpus." 512 U.S. 477, 486-87,489(1994). McPeek has not
claimed that his conviction has been reversed, expunged, declared invalid or impugned by the
granting of a writ. Thus, McPeek's claims(Counts XVIII and XIC) are barred by Heek and
dismissed under 28 U.S.C. §§ I9I5(e)(2)(B)(ii) and 1915A(b)(l).
HI. Order
Accordingly, it is
ORDERED that McPeek's retaliation claim against Klimek, Meyers, Dykstra, and Lueero
(Count I) in their individual capacities and official capacities (only for injunctive relief) survives
28 U.S.C. § 1915A screening. It is further
ORDERED that McPeek's access to the courts claim (Count XVI) against Payer
(in his individual capacity) survives 28 U.S.C. § 1915A screening. It is further
ORDERED that McPeek's mail policies claims(Counts II and III) against Fluke and the
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Unknown Mail Officers in their individual capaeities and offieial eapacities (only for injunetive
relief) survive 28 U.S.C. § 1915A screening. It is further
ORDERED that McPeek's conditions ofconfinement claims(Counts XII and XIII) against
Young in his individual capacity and official capacity (for injunetive relief) survive 28 U.S.C.
§ 1915A review. It is further
ORDERED that all elaims against defendants Tjeerdsma, Livingston, Schieffer, Dooley,
Unknown Property Officer, South Dakota Board ofPardons and Paroles, Judge Eng, and Attorney
Rothschadl are dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l). It is further
ORDERED that the Clerk shall send blank summons forms and U.S. Marshals Service
Form (Form USM-285) to McPeek so that he may cause the complaint to he served upon
defendants(Meyers, Lucero, Klimek, Dykstra, Unknown Mail Room Officers, Fluke, Young, and
Payer). It is further
ORDERED McPeek shall eomplete and send the Clerk of Courts a separate summons and
USM-285 form for each defendant. Upon receipt ofthe completed summons and USM-285 forms,
the Clerk of Court will issue the summons. If the completed summons and USM-285 form are not
submitted as directed, the complaint may be dismissed. It is further
ORDERED that the United States Marshals Service shall serve the completed summonses,
together with a copy of the eomplaint. Doc. 1, and this order upon the defendants. It is further
ORDERED that the defendants will serve and file an answer or responsive pleading to the
amended complaints and supplement on or before 21 days following the date of service or 60 days
if the defendant falls under Fed. R. Civ. P. 12(a)(2) or (3). It is finally
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ORDERED that McPeek 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 Civil Local Rules while
this case is pending.
DATED August 31 2020.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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