Mesteth v. South Dakota Board of Pardons and Paroles et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
FREEMAN A. MESTETH,
Plaintiff,
vs.
SOUTH DAKOTA BOARD OF PARDONS
AND PAROLES, South Dakota State
Penitentiary, in their individual and
official capacity; KELLIE WASCO,
Secretary of Corrections, Pierre, South
Dakota, in her individual and official
capacity; DANIEL SULLIVAN, Warden,
South Dakota State Penitentiary, in his
individual and official capacity; BRAD
LOWENDOWSKI, Exe. Dir. Board of
Pardons & Paroles, South Dakota State
Penitentiary, in his individual and
official capacity; KENNETH SCHAAF,
South Dakota Parole Agent; AARON
GEORGE, Aaron George Property’s,
Defendants.
4:22-CV-04066-KES
1915A SCREENING AND ORDER
DISMISSING CASE
Plaintiff, Freeman A. Mesteth, 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 Mesteth leave to proceed in forma pauperis and ordered
him to pay an initial filing fee. Docket 5. Mesteth paid his initial filing fee on
June 24, 2022. This court will now screen Mesteth’s complaint under 28 U.S.C.
§ 1915A.
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I. 	1915A Screening
A. 	Factual Background
The facts alleged in Mesteth’s complaint are: that Mesteth was released
from prison on December 10, 2021, on a suspended sentence. Docket 1 at 4.
Mesteth claims that he was forced to rent an apartment at Aaron George
Properties because his case manager told him that his “discharge place of
residence at the Bishop Dudley Hospitality House was not approved.” Id. He
claims that his parole agent at the time was Kenneth Schaaf. See id. Mesteth
alleges that he was “reincarcerated as a detainer” on December12, 2021, and
he was released eight days later and taken back to his apartment. Id. He
alleges that when he arrived, all his property was missing and his key card no
longer worked. Id. He alleges that the property manager told him that his key
card would not work and that Aaron George1 had his property removed. Id. He
also alleges that he told Schaaf about this. Id.
Mesteth alleges that George claimed his actions were justified because he
did not receive a rental payment from Mesteth. See id. Mesteth alleges that his
sister sent a certified check for $825 to George, but George did not pick up the
check. Docket 6 at 2. He alleges that this was $500 for one month’s rent and
$325 for his security deposit. Id. He also alleges that George has an agreement
with the South Dakota Board of Pardons and Paroles. Id.
1 The court presumes that Aaron George is the owner of Aaron George
Properties.
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Mesteth states that George took his television, legal papers, photos of his
children and grandchildren, and letters from his family. Docket 1 at 4. He
states that George also took his eagle feathers and that this violates the Bald
Eagle Protection Act. Id. at 5. He states that he has “a permit to have eagle
feathers for spiritual and religious services.” Id. He also states that this permit
was in his room at Aaron George Properties. Id. Mesteth claims that “[a]ll
defendants were involved in the violation of [his] constitutional rights
concerning [his] personal property and sacred eagle feathers.” Id. He claims
that parole agents, including Schaaf, failed to pick up his property from Aaron
George Properties. Docket 6 at 2.
Mesteth brings claims against all defendants for deprivation of his
property without due process and for cruel and unusual punishment. Docket 1
at 4, 6. He also claims that all defendants have violated the Bald Eagle
Protection Act. See id.; Docket 1 at 5. He brings these claims against the South
Dakota Board of Pardons and Paroles, and against unnamed Parole Board
members,2 Secretary of Corrections Kellie Wasko,3 South Dakota State
Penitentiary Warden Daniel Sullivan, and South Dakota Board of Pardons and
2 Mesteth names “South Dakota Board of Pardons and Paroles” as a defendant
in the caption of his complaint. Docket 1 at 1. In the defendants section of his
complaint, he names “Board of Pardons and Paroles” and lists “Parole Board
Members” in the “Position and Title” field. Id. at 2. Construing his complaint
liberally, this court finds that Mesteth names the Parole Board as a defendant
and individual unnamed Parole Board members as defendants in their
individual and official capacities. See id.
3 Mesteth names Kellie Wasco as a defendant in this lawsuit. Docket 1 at 1-2.
The actual name of the Secretary of Corrections is Kellie Wasko. This court will
use Wasko’s actual name in this order.
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Paroles Executive Director Brad Lowendowski in their individual and official
capacities. See Docket 1 at 1-2. He brings these claims against Schaaf, Aaron
George Properties, and George4 in their official capacities only.5 See id. Mesteth
claims that he has suffered psychological and emotional injuries as a result of
defendants’ actions. Id. at 4. He claims that this has gone on for 139 days and
seeks $1,500 for each day that he has suffered “psychological, emotional, and
mental anguish[,]” requesting a total of $208,000. Id. at 7.
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) (per curiam); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir.
2004) (citation omitted). Even with this construction, “a pro se complaint must
contain specific facts supporting its conclusions.” Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985) (citation omitted); see also Ellis v. City of
4 Although Aaron George Properties is a private entity and George is not a
public official, Mesteth alleges that they have an agreement with the Parole
Board regarding the residential placement of individuals who are released on
parole. See Docket 6 at 2. Because Mesteth alleges that Aaron George
Properties and George have contracted with the state, the court construes
Mesteth’s complaint as alleging that they act under color of state law and can
be sued under § 1983. See West v. Atkins, 487 U.S. 42, 56 n.14 (1988). The
Court will treat Aaron George Properties and George as acting under state law
for screening purposes.
5 If a plaintiff does not specify the capacity in which he or she sues a
defendant, the suit is treated as only including official capacity complaints.
Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995); Nix v.
Norman, 879 F.2d 429, 431 (8th Cir. 1989). Thus, Mesteth sues Schaaf, Aaron
George Properties, and George in their official capacities only.
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Minneapolis, 518 F. App’x 502, 504 (8th Cir. 2013) (per curiam) (citation
omitted).
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) (citation omitted) (explaining that a district court does not err when it
dismisses a claim based on vague allegations or unsupported generalizations).
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” (citing Twombly, 550 U.S. at 553-61)). 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
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1. 	Claims Against the South Dakota Board of Pardons and
Paroles
Mesteth brings claims against the South Dakota Board of Pardons and
Paroles. Docket 1 at 1-2. The Eleventh Amendment bars suit against a state
entity, as opposed to a state official, regardless of whether money damages or
injunctive relief is sought. Cory v. White, 457 U.S. 85, 90-91 (1982). In
determining whether an entity is entitled to Eleventh Amendment immunity,
the court examines the powers and characteristics of the entity that was
created by state law to determine if it in reality is acting as the state, the degree
of local autonomy and control exercised by the entity, and whether the funds to
pay an award are derived from the state treasury. Greenwood v. Ross, 778 F.2d
448, 453 (8th Cir. 1985) (citing Laje v. R.E. Thomason Gen. Hosp., 665 F.2d
724, 727 (5th Cir. 1982)).
The Parole Board is a division of the Department of Corrections. See
SDCL § 24-13-3. The Department of Corrections was created by the state
legislature. See SDCL § 1-15-1.2. The Parole Board is an arm of the state of
South Dakota and, as such, is not subject to suit under § 1983. See Cory, 457
U.S. at 90-91. Mesteth’s claims against the Parole Board are dismissed without
prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(iii) and 1915A(b)(2).
2. 	Official Capacity Claims for Money Damages
Mesteth brings claims against all individual defendants in their official
capacities. See Docket 1 at 1-2. All individual defendants are employees of the
state of South Dakota or have contracted with the state of South Dakota. See
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id. “[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 “[s]ection 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) (citing County of Sacramento v. Lewis,
523 U.S. 833, 841 n.5 (1998)). Here, Mesteth only requests money damages.
Docket 1 at 7. The state of South Dakota has not waived its sovereign
immunity. Thus, Mesteth’s claims 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).
3. 	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).
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Thus, each Government official . . . is only liable for his or her own
misconduct. As we have held, a supervising officer can be liable for
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). Mesteth’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. 	Fourteenth Amendment Due Process Claim
Mesteth brings a claim for violation of his Fourteenth Amendment due
process rights against the unnamed Parole Board members, Wasko, Sullivan,
and Lowendowski in their individual capacities. Docket 1 at 2, 4-5. Specifically,
he alleges that these defendants deprived him of his property without due
process when they caused his belongings to be taken from his rental unit. See
id. at 4-5.
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. But even an intentional deprivation of property does not state a due
process claim under the Fourteenth Amendment if there is an adequate post-
deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984). SDCL § 21-3-
3 recognizes a cause of action for wrongful conversion of personal property.
Thus, even if the unnamed Parole Board members, Wasko, Sullivan, and
Lowendowski intentionally deprived Mesteth of his property, they would not
have violated his right to due process. See Palmer, 468 U.S. at 534-35. Further,
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Mesteth makes no claims that the unnamed Parole Board members, Wasko,
Sullivan, and Lowendowski directly participated in the alleged conduct or failed
to train or supervise an offending actor. See Docket 1 at 4-5; Parrish, 594 F.3d
at 1001. Thus, Mesteth’s Fourteenth Amendment due process claim against
the unnamed Parole Board members, Wasko, Sullivan, and Lowendowski in
their individual capacities is dismissed without prejudice under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
b. 	Eighth Amendment Cruel and Unusual Punishment
Claim
Mesteth brings a claim for violation of his Eighth Amendment right to be
free from cruel and unusual punishment against the unnamed Parole Board
members, Wasko, Sullivan, and Lowendowski in their individual capacities.
Docket 1 at 2, 6. Construing his complaint liberally, Mesteth brings a
conditions of confinement claim in violation of his Eighth Amendment right to
be free from cruel and unusual punishment. 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 v. Brennan, 511 U.S. 825, 832 (1994)). 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
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safety[.]” Helling v. McKinney, 509 U.S. 25, 32 (1993) (internal quotation
omitted).
In order to prevail on an Eighth Amendment conditions of confinement
claim, a prisoner must prove that (1) objectively, the deprivation was
sufficiently serious to deprive him of the minimal civilized measures of life's
necessities, or to constitute a substantial risk of serious harm to his health or
safety; and (2) subjectively, the defendants were deliberately indifferent to the
risk of harm posed by the deprivation. Simmons v. Cook, 154 F.3d 805, 807
(8th Cir. 1998) (citing Farmer, 511 U.S. at 834). An Eighth Amendment
challenge to conditions of confinement must examine the totality of the
circumstances. Villanueva v. George, 659 F.2d 851, 854 (8th Cir. 1981) (en
banc). 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) (en banc).
Here, Mesteth fails to state a claim for violation of his Eighth Amendment
rights. Deprivation of his property is not sufficiently serious as to deprive him
of the minimal civilized measures of life’s necessities, and he makes no claim
that he faced a substantial risk of serious harm to his health or safety. See
Simmons, 154 F.3d at 807 (citing Farmer, 511 U.S. at 834). He also makes no
claim that the unnamed Parole Board members, Wasko, Sullivan, and
Lowendowski were deliberately indifferent to the risk of harm. See id. Thus,
Mesteth’s Eighth Amendment cruel and unusual punishment claim against the
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unnamed Parole Board members, Wasko, Sullivan, and Lowendowski in their
individual capacities is dismissed without prejudice under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
c. 	Bald and Golden Eagle Protection Act Claim
Mesteth brings a claim for violation of the Bald Eagle Protection Act
against the unnamed Parole Board members, Wasko, Sullivan, and
Lowendowski in their individual capacities. Docket 1 at 2, 5. Construing his
complaint liberally, Mesteth alleges that these defendants have violated the
Bald and Golden Eagle Protection Act, 16 U.S.C. §§ 668-668d. See id.
“[W]here the text and structure of a statute provide no indication that
Congress intends to create new individual rights, there is no basis for a private
suit, whether under § 1983 or under an implied right of action.” Gonzaga Univ.
v. Doe, 536 U.S. 273, 286 (2002). The Eighth Circuit Court of Appeals has
explained that the Bald and Golden Eagle Protection act does not “contain
provisions for private rights of action.” Defs. of Wildlife v. Adm’r, EPA, 882 F.2d
1294, 1301 (8th Cir. 1989); see also Jaeger v. Cellco P’ship, 2010 U.S. Dist.
LEXIS 24394, at *30 (D. Conn. Mar. 15, 2010) (“The statutes that implement
. . . the [Bald and Golden Eagle Protection Act] are criminal statutes setting
forth a scheme of strict liability for parties responsible for the death of
protected birds.”). Thus, Mesteth cannot bring a claim under the Bald and
Golden Eagle Protection Act. Mesteth’s Bald and Golden Eagle Protection Act
claim against the unnamed Parole Board members, Wasko, Sullivan, and
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Lowendowski in their individual capacities is dismissed without prejudice
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
II. 	Strike Under 28 U.S.C. § 1915(g)
The court finds that Mesteth’s complaint fails to state a claim upon
which relief may be granted. Section 1915(g) states as follows:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner has,
on 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States
that was dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). The Eighth Circuit has explained that “[d]ismissals based
on immunity are not among the types of dismissals listed as strikes in
[§] 1915(g)[.]” Castillo-Alvarez v. Krukow, 768 F.3d 1219, 1220 (8th Cir. 2014)
(per curiam) (citing Byrd v. Shannon, 715 F.3d 117, 125-27 (3d Cir. 2013)). In
Byrd, the Third Circuit Court of Appeals explained that § 1915(g) “requires that
a prisoner’s entire action or appeal be dismissed on enumerated grounds in
order for the dismissal to count as a strike.” 715 F.3d at 125. Thus, because
Castillo-Alvarez cites Byrd with approval, this court will follow the rule set out
in Byrd. See Castillo-Alvarez, 768 F.3d at 1220 (citing Byrd, 715 F.3d at 125-
27).
Mesteth’s complaint is dismissed in part for failure to state a claim upon
which relief may be granted and in part because it seeks monetary relief
against a defendant who is immune from such relief. See 28 U.S.C.
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§ 1915(e)(2)(B)(ii)-(iii); 28 U.S.C. § 1915A(b)(1)-(2). Under Castillo-Alvarez and
Byrd, this does not constitute a strike.
Thus, it is ORDERED:
1. 	That Mesteth’s complaint (Docket 1) is dismissed without prejudice
under 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii) and 1915A(b)(1)-(2).
2. 	That judgment is entered in favor of the South Dakota Board of
Pardons and Paroles, the unnamed Parole Board members, Kellie
Wasko, Dan Sullivan, Brad Lowendowski, Kenneth Schaaf, Aaron
George Properties, and Aaron George and against Mesteth.
Dated October 19, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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