Hughbanks v. Fluke et al

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
KEVIN LEE HUGHBANKS,
Plaintiff,
vs.
BRENT FLUKE, Warden, Mike Durfee
State Prison, in his individual and
official capacity; REBECCA
SCHIEFFER, Associate Warden of
Operations and Administrative Remedy
Coordinator, Mike Durfee State Prison,
in her individual and official capacity;
ALEJANDRO REYES, Associate Warden
of Programs and Americans with
Disabilities Act Coordinator, Mike
Durfee State Prison, in his individual
and official capacity; LAINE
SCHRYVERS, Former Ludeman and
West Crawford Unit Manager, Mike
Durfee State Prison, in their individual
capacity; TAMMY DOYLE, Barracks
Unit Manager, Mike Durfee State
Prison, in her individual and official
capacity; SECRETARY SOUTH DAKOTA
DEPARTMENT OF HEALTH, Cabinet
Secretary, in their individual and
official capacity; DIRECTOR
CORRECTIONAL HEALTH SERVICES,
Director, All SD DOC Locations, in their
individual and official capacity; CHS
JANE DOE, Nurse, Mike Durfee State
Prison, in her individual and official
capacity; MARY CARPENTER, Medical
Director, All SD DOC locations, in her
individual and official capacity;
STEPHANIE HAMILTON, Nurse, Mike
Durfee State Prison, in her individual
and official capacity; MIKE LEIDHOLT,
4:21-CV-04167-KES
ORDER ON PLAINTIFF’S PENDING
MOTIONS
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Former Secretary of Corrections, All SD
DOC Locations, in his individual
capacity; TIM REISCH, Former Interim
Secretary of Corrections, All SD DOC
Locations, in his individual capacity;
CHS JANE DOE, Nurse, South Dakota
State Penitentiary, in her individual and
official capacity; SAM BADURE, Unit
Manager and SDSP Prison Rape
Elimination Act Coordinator, South
Dakota State Penitentiary, in his
individual and official capacity; CODY
HANSON, Former Case Manager and
Current Unit Manager, South Dakota
State Penitentiary, in his individual and
official capacity; MELISSA MATURAN,
SDSP Administrative Remedy
Coordinator, South Dakota State
Penitentiary, in her individual and
official capacity; TAMMY TOP, Former
Physician’s Assistant, South Dakota
State Penitentiary, in her individual and
official capacity; JESSICA SCHRUER,
South Dakota State Penitentiary, in her
individual and official capacity; “X”
SALOUM, Doctor of Medicine, Employed
though Department of Health, South
Dakota State Penitentiary, in his/her
individual and official capacity; DARIN
YOUNG, Former Chief Warden and
Director of Operations, South Dakota
State Penitentiary, in his individual
capacity; JENNIFER DREISKE, Former
Deputy Warden, South Dakota State
Penitentiary, in her individual capacity;
CHARISSA WAREMBOURG, Mailroom
Officer, Mike Durfee State Prison, in her
individual and official capacity; CHUCK
GILCHRIST, Sex Offender Management
Program Counselor/Therapist, Mike
Durfee State Prison, in his individual
and official capacity, a/k/a Charles
Gilchrist; BRENNA CARLSON, Sex
Offender Management Program
Director, All SD DOC Facilities, in her
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individual and official capacity; MARK
STOEBNER, Former Sex Offender
Management Program
Counselor/Therapist, Mike Durfee State
Prison, in his individual and official
capacity; JAMES HENRY, Corporal and
Supervisor of Laundry, Mike Durfee
State Prison, in his individual and
official capacity; GLOBAL TEL LINK
CORPORATION, All South Dakota
Department of Corrections Facilities, in
its individual and official capacity;
SUMMIT FOOD SERVICE, LLC; Mike
Durfee State Prison, in its individual
and official capacity; UNKNOWN
CORRECTIONAL HEALTH SERVICES
EMPLOYEES, Unknown Positions, Mike
Durfee State Prison, in their individual
and official capacities; SOMP JOHN
DOE, Unknown Contractor for Sex
Offender Management Program, Mike
Durfee State Prison, in his individual
and official capacity; TIFFANY VOIGT,
Unit Coordinator, Mike Durfee State
Prison, in her individual and official
capacity; DOUG CLARK, Deputy
Secretary of Corrections, Former
Interim Secretary of Corrections and
Former Executive Director of South
Dakota Board of Pardons and Paroles,
in his individual and official capacity;
DAN SULLIVAN, Warden of South
Dakota State Penitentiary, in his official
capacity; KELLIE WASKO, Cabinet
Secretary South Dakota Department of
Corrections, All SD DOC Locations, in
their official capacity; GORDON
SWANSON, Parole Board Member, All
SD DOC Facilities, in his individual and
official capacity; KENNETH ALBERS,
Parole Board Member and Former
Sheriff, All SD DOC Facilities, in his
individual and official capacity; MARK
SMITH, Parole Board Member, All SD
DOC Facilities, in his individual and
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official capacity; MYRON RAU, Parole
Board Member, All SD DOC Facilities,
in his individual and official capacity;
PAIGE WILBUR BOCK, Parole Board
Member, All SD DOC Facilities, in her
individual and official capacity; DAVE
NELSON, Parole Board Member and
Former Prosecutor, All SD DOC
Facilities, in his individual and official
capacity; KEVIN KRULL, Parole Board
Member, All SD DOC Facilities, in his
individual and official capacity; ANNE
HAJEK, Parole Board Member, All SD
DOC Facilities, in her individual and
official capacity; ED LIGTENBERG,
Parole Board Member and Former
Executive Director of South Dakota
Board of Pardons and Paroles, All SD
DOC Facilities, in his individual and
official capacity; GREGG GASS, Parole
Board Member, All SD DOC Facilities,
in his individual and official capacity;
JODY JESSEN, Correctional Officer,
Mike Durfee State Prison, in his/her
individual and official capacity; ED
LOEWE, Lieutenant of Special
Investigative Unit, Mike Durfee State
Prison, in his individual and official
capacity; KIM HALVERSON, Summit
Food Service, LLC, Director at Mike
Durfee State Prison, in their individual
and official capacity; and JARROD “X”,
Former Summit Food Service, LLC,
Director at Mike Durfee State Prison, in
his individual capacity,
Defendants.
Plaintiff, Kevin Lee Hughbanks, filed a pro se lawsuit under 42 U.S.C.
§ 1983. Dockets 5, 20. Hughbanks alleges that his conditions of confinement at
Mike Durfee State Prison (MDSP) violate his constitutional rights. Hughbanks
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has named as defendants current and former employees of the South Dakota
Department of Corrections and Department of Health (State defendants),
Summit Food Service and its current and former employees, and Global Tel
Link Corporation. Docket 20 at 1-10. Hughbanks alleges deliberate indifference
to his serious medical needs, unsanitary conditions, and inadequate nutrition
in violation of his Eighth Amendment right to be free from cruel and unusual
punishment. He alleges lack of meaningful access to the courts in violation of
his First Amendment rights. He challenges the inmate correspondence policy,
contending it violates his First Amendment rights. He also challenges the Sex
Offender Management Program policies, contending they violate his Fourteenth
Amendment right to due process and his Fifth Amendment right to be free from
self-incrimination.
Hughbanks has filed motions seeking assistance with service,
substitution of parties, preliminary injunctive relief and additional
miscellaneous relief. Below the court outlines additional factual and procedural
background pertinent to the court’s ruling on each of the pending motions.
I. 	Motions for Assistance with Service
A. 	Department of Corrections
After the amended complaint was filed, the clerk’s office issued thirty-
seven summonses and delivered the summonses, along with the amended
complaint and the amended 1915A screening order, to the United States
Marshal Service (USMS) in Sioux Falls for service. Docket 21. The USMS was
unable to serve Jennifer Dreiske, Mike Leidholt, Tim Reisch, Laine Schryers,
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Tammy Top, and Darin Young because they are no longer employed by the
Department of Corrections. Docket 25. The USMS was also unable to serve the
summonses issued to Ed Ligtenberg, Anne Hajek, Kevin Krull, Mark Smith,
Paige Wilbur Bock, and Dave Nelson. Docket 40. Ligtenberg, Hajek, Krull,
Smith, and Wilbur Bock are auxiliary members of the South Dakota Board of
Pardons and Paroles and are not regularly at the address in the summonses.
Id. at 4, 6, 7, 9, 10, 12, 13, 15, 16, 18. Nelson is no longer at the address in the
summons. Id. at 19, 21. Hughbanks has filed motions for assistance with
service. See Dockets 62, 80, 85, 95, 110.
Hughbanks has not filed a motion to extend the time for service, but the
court construes his motion for a temporary restraining order (Docket 80) to
include a request that the court find that there is good cause to extend the time
for service. More than ninety days have elapsed since the amended complaint
was filed, but the court finds that there is good cause for extending the time for
service on the defendants who are no longer employed with the Department of
Corrections and the auxiliary members of the South Dakota Board of Pardons
and Paroles. Fed. R. Civ. P. 4(m) (“[I]f the plaintiff shows good cause . . . , the
court must extend the time for service for an appropriate period.”). After the
summonses for Dreiske, Leidholt, Reisch, Schryers, Top, Young, Ligtenberg,
Hajek, Krull, Smith, Wilbur Bock, and Nelson were returned unexecuted,
Hughbanks diligently attempted to obtain these defendants’ addresses. See
Dockets 62, 80, 85, 95, 110. But he does not have internet access, and prison
policy prohibits him from attempting to locate the addresses of the unserved
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defendants. Docket 80 at 4. Hughbanks has been unable to locate addresses
for the defendants who are no longer employed with the Department of
Corrections or the auxiliary parole board members. Docket 110 at 1. The court
extends the time for serving defendants Dreiske, Leidholt, Reisch, Schryers,
Top, Young, Ligtenberg, Hajek, Krull, Smith, Wilbur Bock, and Nelson until
March 28, 2023.
In his motion for names and service addresses (Docket 62), Hughbanks
requests that counsel for the State defendants provide an address at which the
summons and amended complaint can be served on defendants Ligtenberg,
Hajek, Krull, Smith, and Wilbur Bock. Docket 62 at 3. The State defendants
have not opposed Hughbanks’s motion. In his motion for aid with service,
Hughbanks requests that the USMS and the Clerk of Court assist him in
locating addresses for the defendants who have not yet been served. Docket
110 at 1. The State defendants have not opposed this motion.
The court grants in part Hughbanks’s motion for names and service
addresses (Docket 62). The court orders counsel who has appeared on behalf of
the State defendants to provide the last known addresses for defendants
Ligtenberg, Hajek, Krull, Smith, and Wilbur Bock to the USMS for service by
February 28, 2023. See Cody v. Clark, No. 4:22-CV-04010-KES, 2023 WL
112695, at *7, 2023 U.S. Dist. LEXIS 3380, at *19 (D.S.D. Jan. 5, 2023) (citing
Hansen v. S.D. Dep’t of Corr., 4:19-CV-04019-KES, Docket 44 at 4)). The Clerk
of Court is directed to redact these defendants’ addresses from the returns of
service before they are filed and to provide redacted copies to Hughbanks. See,
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e.g., Allen v. Siddiqui, 2008 WL 2217363, at *1, 2008 U.S. Dist. LEXIS 41923,
at *3-4 (W.D. Ky. May 27, 2008) (recognizing that when the USMS is directed to
effect service the court can have the agency that previously employed the
defendant file his last known address under seal); Skinner v. Beemer, 2007 WL
2982419, at *1, 2007 U.S. Dist. LEXIS 75531, at *2 (E.D. Mich. Oct. 11, 2007)
(“Although the Court is disinclined to provide Defendant[’s] . . . home address
to the Plaintiff, it would be appropriate to direct [his former employer] to
provide his last known address to the Court in camera, subject to a protective
order that it will not be provided to the Plaintiff himself.”); Kowalski v. Stewart,
220 F.R.D. 599, 600 (D. Ariz. 2004) (stating that releasing a former correctional
officer’s personal information to an inmate would jeopardize his personal
safety). In addition to requesting that the court order counsel who has
appeared on behalf of the State defendants to provide the last known addresses
for auxiliary members of the South Dakota Board of Pardons and Paroles,
Hughbanks requests that the court order the State defendants’ counsel to
provide additional information regarding the South Dakota Board of Pardons
and Paroles. Docket 62 at 3. To the extent Hughbanks seeks information other
than the last known addresses for defendants Ligtenberg, Hajek, Krull, Smith,
and Wilbur Bock, his motion is denied.
The court denies Hughbanks’s motion requesting that the USMS and the
Clerk of Court assist him in locating addresses for the unserved defendants.
Docket 110. Instead, the court orders that counsel for the State defendants
provide the last known addresses for defendants Dreiske, Leidholt, Reisch,
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Schryers, Top, Young, and Nelson to the USMS for service by February 28,
2023. The Clerk of Court is directed to redact these defendants’ addresses from
the returns of service before they are filed and to provide redacted copies to
Hughbanks.
B. 	“X” Saloum
The amended complaint includes as a defendant “X” Saloum, a doctor of
medicine employed through the Department of Health, in his individual and
official capacity. Docket 20 at 5. The summons to “X” Saloum was returned
unserved because “X” Saloum is an unknown person. Docket 40 at 1, 3. When
the State defendants answered the amended complaint, the answer clarified
that Dr. Herbert Saloum is deceased. Docket 50 at 4, n.3. Hughbanks moves to
substitute the estate or personal representative of Dr. Herbert Saloum as a
defendant for the claims against “X” Saloum in his individual capacity and Dr.
Saloum’s successor for the claim against “X” Saloum in his official capacity.
Docket 62 at 2. The State defendants have not objected to Hughbanks’s motion
to substitute.
Federal Rule of Civil Procedure 25(a)(1) provides that “[i]f a party dies and
the claim is not extinguished, the court may order substitution of the proper
party.” Because the Civil Rights Act “does not deal expressly with the question
of survivorship[,]” federal courts look to state law in determining whether
§ 1983 claims against an official in his individual capacity survive the death of
the defendant. Pritchard v. Smith, 289 F.2d 153, 155-59 (8th Cir. 1961) (citing
42 U.S.C. § 1988). In Moor v. County of Alameda, 411 U.S. 693, 702 n.14
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(1973), the Supreme Court cited Pritchard with approval and recognized that
“pursuant to § 1988 state survivorship statutes which reverse the common-law
rule may be used in the context of actions brought under § 1983.” Under South
Dakota law, a cause of action survives notwithstanding the death of the
defendant. “All causes of action shall survive and be brought, notwithstanding
the death of the person entitled or liable to the same. Any such action may be
brought by or against the personal representative or successors in interest of
the deceased.” SDCL § 15-4-1. 	Because Hughbanks’s § 1983 claim against “X”
Saloum in his individual capacity was not extinguished upon Dr. Saloum’s
death, Hughbanks’s motion to substitute the personal representative of Dr.
Saloum’s estate as a defendant for his claim against “X” Saloum is granted. See
SDCL § 29A-3-703(c) (“[A] personal representative . . . has the same standing to
sue and be sued in the courts of this state and the courts of any other
jurisdiction as the decedent had immediately prior to death.”).
Hughbanks seeks injunctive relief from “X” Saloum in his official capacity
through the issuance of an apology letter for the physical, emotional and
mental trauma, and pain Hughbanks alleges he has experienced due to the
deliberate indifference to his serious medical needs. Docket 20 at 21. The
injunctive relief Hughbanks seeks against “X” Saloum in his official capacity is
not a cognizable form of relief in a § 1983 action. “An apology for past
wrongdoing is not prospective injunctive relief and is not the type of relief that
is cognizable in a § 1983 action against a state official in his official capacity.”
Kesterson v. Kent State Univ., 345 F. Supp. 3d 855, 886 (N.D. Ohio 2018).
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Hughbanks’s claim against “X” Saloum in his official capacity is dismissed
without prejudice and his motion to substitute Dr. Saloum’s successor as the
defendant for his official capacity claim against “X” Saloum is denied.
Hughbanks requests that the USMS and the Clerk of Court assist him in
locating the address for the personal representative of the estate of Dr. Saloum.
Docket 110. The court denies this request but orders that counsel for the State
defendants provide the last known address for the personal representative of
the estate of Dr. Saloum to the USMS for service by February 28, 2023. The
Clerk of Courts is directed to redact the address from the return of service
before it is filed and to provide a redacted copy to Hughbanks.
C. 	Jarrod “X”
In his amended complaint, Hughbanks named Jarrod “X”, the former
Summit Food Service director at Mike Durfee State Prison as an additional
defendant. Docket 20 at 10. Counsel for Summit Food Service entered an
appearance and identified Jarrod “X” as Jarrod Anderson. Docket 34. But the
summons issued to Jarrod Anderson was returned unexecuted because
Anderson is no longer at the address in the summons. Docket 40 at 22, 24.
Hughbanks requests that counsel for Summit Food Service provide an address
at which the summons and amended complaint can be served on Jarrod
Anderson. Docket 62 at 3. Summit Food Service objects to Hughbanks’s
motion, arguing that the allegations in the amended complaint fail to state a
plausible claim for relief against Anderson. Docket 64 at 2. Because Anderson
was not a defendant when the court screened the complaint under 28 U.S.C.
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§ 1915A, the court will consider whether the amended complaint states a claim
against Anderson upon which relief may be granted.
In the amended complaint, Hughbanks brings claims against Anderson
in his individual capacity for unsanitary conditions in the dietary building at
MDSP and inadequate nutrition that violate his Eighth Amendment right to be
free from cruel and usual punishment. Docket 20 at 10, 29-35, 38-41, 73-77.
The complaint (Docket 5 at 25-26, 29, 33-35, 65-68) included the same
conditions of confinement claims against Summit Food Service, which the
court determined survive § 1915A screening. Docket 11 at 28-30. “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). To state a claim upon which relief can be granted, Hughbanks’s
individual capacity claims against Anderson must allege that he either
participated in the unconstitutional conduct or caused the conduct to occur
through a failure to train or supervise an offending officer. Parrish v. Ball, 594
F.3d 993, 1001 (8th Cir. 2010).
The amended complaint alleges that Anderson participated in the
conduct giving rise to the allegedly unsanitary conditions and inadequate
nutrition. Docket 20 at 31, 35, 40, 73, 76. At this stage of the proceedings, the
court must assume as true all facts well pleaded in the amended complaint.
Estate of Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995). Further, pro se
and civil rights complaints must be liberally construed. Erickson v. Pardus, 551
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U.S. 89, 94 (2007) (per curiam) (citation omitted); Bediako v. Stein Mart, Inc.,
354 F.3d 835, 839 (8th Cir. 2004) (citation omitted). The court finds that the
amended complaint states a claim upon relief can be granted against Anderson
and orders that the caption in future filings shall identify defendant Jarrod “X”
as Jarrod Anderson, former Summit Food Service Director at Mike Durfee State
Prison, in his individual capacity.
For the same reasons that the court finds that there is good cause for
extending the time for service on the defendants who are no longer employed
with the Department of Corrections, the court finds that there is good cause for
extending the time for service on Anderson, who is no longer employed with
Summit Food Service. The court extends the time for serving Anderson until
March 28, 2023. The court grants in part Hughbanks’s motion for names and
service addresses (Docket 62) and orders counsel who has appeared on behalf
of Summit Food Service and Anderson to provide to the USMS the last known
address for Anderson by February 28, 2023. The Clerk of Court is directed to
redact Anderson’s address from the return of service before it is filed and to
provide a redacted copy to Hughbanks.
D. 	Additional Requests for Relief to Related to Service of Process
Hughbanks moves for a temporary restraining order restraining
“Defendants Wasko, Fluke, Stoebner, Loewe, Voigt and their officers and
agents, from refusing to allow Plaintiff to use a computer with internet
capabilities for fourteen days.” Docket 80 at 2. Hughbanks contends that he
will be irreparably harmed if he is not provided means to locate the addresses
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of the defendants who are no longer employed with the Department of
Corrections and Summit Food Service so that he can perfect service. Id. at 2-5.
Hughbanks’s motion for temporary restraining order (Docket 80) is denied as
moot. Similarly, Hughbanks’s motion for a private investigator to assist with
service (Docket 85) is denied as moot. Finally, the court liberally construes
Hughbanks’s September 21, 2022, letter to the Clerk of Court (Docket 95) as a
motion for substituted service by publication, which is denied as moot.
II. 	Motion for Appointment of Counsel and Preliminary Injunctive
Relief
A. 	Motions for Appointment of Counsel
Hughbanks moves for appointment of counsel. Dockets 41, 65. “A pro se
litigant has no statutory or constitutional right to have counsel appointed in a
civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998). The court
“may request an attorney to represent any person unable to afford counsel.” 28
U.S.C. § 1915(e)(1). When determining whether to appoint counsel to a pro se
litigant, the court considers the “factual complexity of the case, the ability of
the indigent to investigate the facts, the existence of conflicting testimony, the
ability of the indigent to present his claim and the complexity of the legal
issues.” Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991) (citation
omitted). Hughbanks’s claims do not appear to be factually or legally complex,
and his filings, including the complaint (Docket 5) and the amended complaint
(Docket 20), clearly set forth his claims. Because the court believes that
Hughbanks can adequately present his claims at this time, his motions for
appointment of counsel (Dockets 41, 65) are denied.
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B. 	Motions for Preliminary Injunctive Relief
Hughbanks seeks a preliminary injunctive order requiring defendant
Fluke to provide him a laptop computer, without internet access or wi-fi
capability, or desktop computer to use in his cell to type legal documents.
Dockets 41, 46, 65. He contends that using a specialized laptop or desktop
computer in his cell would not pose a security threat and would protect his
right of access to the courts. Docket 46 at 2-3; Docket 65 at 3. Defendants
oppose Hughbanks’s motions and contend that inmates are not permitted to
have computers in their cells due to security concerns. Docket 92 at 3.
According to defendants, MDSP has protocols in place to protect Hughbanks’s
right of access to the courts without providing him a laptop or desktop
computer. Id. at 3-5, 7.
A preliminary injunction is an “extraordinary and drastic remedy[.]”
Munoz v. Geren, 553 U.S. 674, 689 (2008) (internal quotation omitted).
Hughbanks, the party seeking preliminary relief, bears the burden of
establishing the elements necessary for relief. Watkins, Inc. v. Lewis, 346 F.3d
841, 844 (8th Cir. 2003) (citation omitted). Whether a preliminary injunction
should issue is decided by weighing the four Dataphase factors: (1) the threat
of irreparable harm to the movant; (2) the state of balance between this harm
and the injury that granting the injunction will inflict on the other parties; (3)
the probability that the movant will succeed on the merits; and (4) the public
interest. Dataphase Sys. v. C.L. Sys., 640 F.2d 109, 114 (8th Cir. 1981). In a
prison setting, a request for a preliminary injunction “must always be viewed
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with great caution because judicial restraint is especially called for in dealing
with the complex and intractable problems of prison administration.” Goff v.
Harper, 60 F.3d 518, 520 (8th Cir. 1995) (internal quotation omitted).
Since Dataphase, the Eighth Circuit has “observed that the ‘likelihood of
success on the merits is the 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)). But the Eighth Circuit has also held
that “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, 2014 U.S. Dist. LEXIS 118740, at *3 (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.” Id. (quoting Travelers Express Co. v.
Transaction Tracking Techs., Inc., 305 F. Supp. 2d 1090, 1095 (D. Minn. 2003)).
“[F]or 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.’ ” Goff, 60 F.3d at 521 (quoting
Rogers, 676 F.2d at 1214).
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Typically, a preliminary injunction is “prohibitory” and “merely freezes
the positions of the parties until the court can hear the case on the merits.”
Heckler v. Lopez, 463 U.S. 1328, 1333 (1983). In other words, a preliminary
injunction is usually meant only to “preserve the relative positions of the
parties until a trial on the merits can be held.” Ahmad v. City of St. Louis, 995
F.3d 635, 641 (8th Cir. 2021) (quoting Univ. of Tex. v. Camenisch, 451 U.S.
390, 395 (1981)). Here, Hughbanks has not requested that the court preserve
the status quo. Rather, Hughbanks seeks a mandatory injunction. Mandatory
injunctions should be granted sparingly, Heckler, 463 U.S. at 1333-34 (citation
omitted), and only if the movant has shown that “the balance of other factors
tips decidedly toward the movant[.]” United Indus. Corp. v. Clorox, Co., 140 F.3d
1175, 1179 (8th Cir. 1998) (internal quotation omitted).
In this case, Hughbanks is not likely to succeed on the merits of his
claim that his First Amendment right of access to the courts has been violated
because he is not permitted to have a laptop or desktop computer. Prisoners do
not have a constitutional right to possess or use typewriters or computers. See,
e.g., Am. Inmate Paralegal Assoc. v. Cline, 859 F.2d 59, 61 (8th Cir. 1988) (per
curiam) (“Prison inmates have no constitutional right of access to a
typewriter[.]”); Roberts v. Cohn, 63 F. Supp. 2d 921, 924 (N.D. Ind. 1999) (“It is
well established that prison inmates do not have a constitutional right to use or
possess typewriters and word processors.” (citations omitted)).
In his reply to the defendants’ response to his motions for preliminary
injunctive relief, Hughbanks argues that he could lose earned discharge credits
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and “could also be fired from his job and terminated from programming” if he is
not permitted to have a laptop or desktop computer in his cell. Docket 101 at
6-7. Because inmates are permitted to use the legal typing room only during
specific times that overlap with his work and programming schedule,
Hughbanks contends that he will be penalized if he misses work or programing
to complete legal typing. Id. at 6-9. Defendants dispute that Hughbanks is
penalized if he misses work to complete legal typing. Docket 93. Even if the
court accepts Hughbanks’s contention, however, his allegations are insufficient
to establish irreparable harm. Hughbanks is not legally required to type his
submissions to prosecute this case or any other claim challenging his
conditions of confinement or attacking his sentence. Hughbanks’s First
Amendment right of access to the courts is “satisfied by providing basic
materials, such as ink pens and paper, for the preparation of legal materials.”
Roberts, 63 F. Supp. 2d at 924-25 (citations omitted). In this case, Hughbanks
submitted a handwritten response to defendants’ response to his motions for
preliminary injunctive relief (Docket 101) as well as other handwritten
pleadings. Hughbanks’s claimed harm is speculative. He has failed to meet his
burden of proving harm that is “certain, great and of such imminence that
there is a clear and present need for equitable relief.” Gard, 2014 WL 4243586
at *1, 2014 U.S. Dist. LEXIS 118740, at *3 (quoting Packard Elevator, 782 F.2d
at 115). See Nicolaison v. Brown, 2005 WL 8163346, at*1, 2005 U.S. Dist.
LEXIS 54693, at *2-4 (D. Minn. Sept. 26, 2005) (denying motion for word
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processor because the plaintiff could not demonstrate that he could not
prosecute his § 1983 action without access to a word processor).
Finally, because of the security concerns posed by permitting inmates to
have computers in their cells and the potential impact on prison
administration, the court finds that the balance of harms does not weigh in
favor of granting Hughbanks’s request for preliminary injunctive relief.
Hughbanks’s motion for a preliminary injunctive order requiring defendant
Fluke to provide him a laptop computer (Document 41) and supplemental
motion for a desktop computer to use in his cell to type legal documents
(Document 65) are denied.
C. 	Motion for Default Judgment
Hughbanks has filed a motion, pursuant to Federal Rule of Civil
Procedure 55, for a default judgment in his favor on his motion and
supplemental motion for preliminary injunctive relief. Docket 96. Hughbanks
contends that defendants’ responses to his motions were not timely because
they were not served and filed within 21 calendar dates after service of the
motions, as required by D.S.D. Civ. LR 7.1.B. Docket 112 at 2. Rule 55(a)
requires the clerk to enter a default “[w]hen a party against whom a judgment
for affirmative relief is sought has failed to plead or otherwise defend[.]” In this
case, the Clerk declined to enter a default under Rule 55(a) of the Federal Rules
of Civil Procedure because defendants timely filed responsive pleadings to the
amended complaint. Docket 97.
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Failing to timely respond to a motion is not a basis for entry of a default
judgment for failing “to plead or otherwise defend.” See Fed. R. Civ. P. 55(a).
Entry of default for failure to plead or other defend is limited to the pleadings
listed in Rule 7(a). 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane,
Fed. Prac. & Proc. Civ. § 2682 (4th ed. 2016). A motion for preliminary
injunction is not one of the pleadings listed in Rule 7(a). Moreover, defendants’
response to Hughbanks’s motions were timely. The court ordered the Warden
or other Department of Corrections officials to respond to Hughbanks’s motions
by September 23, 2022. Docket 87. In accordance with the court’s order,
defendants responded to the motions on September 23, 2022. Dockets 92, 93.
Because defendants’ response was timely, Hughbanks’s motion for default
judgment (Docket 96) is denied.
III. 	Additional Requests for Relief
A. 	Motion to Compel Answers
Hughbanks seeks an order compelling defendants to fully respond to the
amended complaint. Docket 611. As previously noted, all defendants timely
filed responsive pleadings to the amended complaint. Docket 97. Hughbanks’s
motion to compel answers is denied.
B. 	Motion to Substitute
Hughbanks moves to substitute “Proper Parties[.]” Docket 62.
Specifically, he moves to substitute Thomas Gilchrist in place of defendant
1 In this motion, Hughbanks also requests addresses for defendants who have
not been served which is the same relief Hughbanks requested in his motion
for addresses (Docket 62).
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“Chuck aka Charles Gilchrist”, Joan Adam, in her individual and official
capacity as the Secretary of the Department of Health and Director of
Correctional Health Services in place of the unnamed Secretary and Director
referenced in the amended complaint, and ViaPath in place of defendant Global
Tel Link Corporation. Id.
1. 	Thomas Gilchrist
The answer filed on behalf of the State defendants correctly identifies
defendant Chuck aka Charles Gilchrist as Thomas Gilchrist. Docket 50 at 3.
Defendant Thomas Gilchrist admits that “he is a Sex Offender Management
Program Counselor employed at the Mike Durfee State Prison.” Docket 50 at 7.
Therefore, the court will construe the motion to substitute as a motion to
correct the caption, which is granted. The court orders that the caption in
future filings identify defendant Gilchrist as “THOMAS GILCHRIST, Sex
Offender Management Program Counselor/Therapist, Mike Durfee State Prison,
in his individual and official capacity.”
2. 	Joan Adam
In his amended complaint, Hughbanks named the Secretary of the South
Dakota Department of Health and the Director of Correctional Health Services
as additional defendants. Docket 20 at 2. When the State defendants answered
the amended complaint, the answer identified Joan Adam as the Secretary of
the Department of Health and Director of Correctional Health Services. Docket
50 at 3. Hughbanks moves to substitute as a defendant Joan Adam, in her
individual and official capacity as the Secretary of the Department of Health
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and Director of Correctional Health Services. The current Secretary of the
Department of Health and Director of Correctional Health Services is Melissa
Magstadt, who is automatically substituted for the official capacity claims. Fed.
R. Civ. P. 25(d). Hughbanks’s motion to substitute Joan Adam, in her
individual capacity, is denied. Hughbanks executed the proposed amended
complaint on March 3, 2022 (Docket 20), and the proposed amended complaint
was filed, along with Hughbanks’s motion to amend complaint, on March 11,
2022. But Adam did not become the Secretary of the Department of Health
until March 29, 2022, after Hughbanks filed the proposed amended complaint.
Joan Adam cannot be individually liable for any alleged violation of
Hughbanks’s constitutional rights that may have occurred before she became
the Secretary of the Department of Health.
3. 	ViaPath
Hughbanks alleges that Global Tel Link Corporation (GTL) contracted
with the Department of Corrections to provide LexisNexis on GTL tablet
computers issued to inmates. Docket 5 at 62; Docket 20 at 70. Network
outages, slow processing, and “flaws, errors, and bugs” in the system,
according to Hughbanks, impede his ability to conduct legal research in
violation of his right of access to the courts. Docket 5 at 62, Docket 20 at 70. In
its corporate disclosure statement, GTL advised that “GTL recently changed its
name to ViaPath Technologies[.]” Docket 57. Hughbanks moves to substitute
ViaPath as a defendant in place of GTL. Docket 62. GTL does not oppose
substituting ViaPath Technologies as the named defendant in place of GTL.
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The court construes Hughbanks’s motion as a motion to amend the
caption, which is granted. The court orders that the caption in future filings
identify defendant Global Tel Link Corporation as “Global Tel Link Corporation
n/k/a ViaPath Technologies.”
C. 	Partial Motion to Dismiss Amended Complaint
Hughbanks filed a motion to dismiss his claims for injunctive relief
against Summit Food Service and Kim Halverson. Docket 94. The motion to
dismiss was premised upon Hughbanks’s understanding that Summit Food
Services’s contract to provide meals for inmates at MDSP had been terminated.
Id. But Hughbanks has informed the court that his understanding was
mistaken and moves to withdraw his partial motion to dismiss his claims for
injunctive relief against Kim Halverson. Docket 100. Although Hughbanks did
not specifically request to withdraw his motion to dismiss his claims for
injunctive relief against Summit Food Service, the court will liberally construe
his request. In his request, Hughbanks alleges that he was provided “false
information about staff changes regarding meal/food service company[.]” Id.
Summit Food Service is the meal/food service company, so the court interprets
Hughbanks’s request to include Summit Food Service. Hughbanks’s request to
withdraw his partial motion to dismiss (Docket 94) is granted, and the claims
in the amended complaint for injunctive relief against Summit Food Service
and Kim Halverson are not dismissed.
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D. 	Motion to Seal
As further support for his motion for preliminary injunctive relief,
Hughbanks submitted a letter to the court, dated October 3, 2022, which he
requested be filed under seal to avoid “severe penalties” and to protect his Fifth
Amendment right against self-incrimination. Docket 100-1. The court has
reviewed Hughbanks’s letter and does not find that its content will cause
severe penalties to him or infringe upon his Fifth Amendment rights. The
motion to seal (Docket 100) is denied.
Thus, it is ORDERED:
1. That there is good cause for extending the time for serving defendants
Dreiske, Leidholt, Reisch, Schryers, Top, Young, Ligtenberg, Hajek,
Krull, Smith, Wilbur Bock, Nelson, and Anderson. The time for serving
these defendants is extended until March 28, 2023.
2. That Hughbanks’s motion for names and service addresses (Docket
62) is granted in part and denied in part. Counsel who has appeared
on behalf of the State defendants shall provide the last known
addresses for defendants Ligtenberg, Hajek, Krull, Smith, Wilbur
Bock, Dreiske, Leidholt, Reisch, Schryers, Top, Young, Nelson, and
the personal representative of the Estate of Dr. Herbert Saloum to the
USMS for service by February 28, 2023. Counsel who has appeared
on behalf of Summit Food Service shall provide the last known
address for defendant Jarrod Anderson to the USMS for service by
February 28, 2023. The Clerk of Court shall redact these defendants’
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addresses from the returns of service before they are filed and provide
redacted copies to Hughbanks. To the extent Hughbanks seeks
information other than the last known addresses for defendants
Ligtenberg, Hajek, Krull, Smith, and Wilbur Bock, his motion for
names and service addresses (Docket 62) is denied.
3. That the caption in future filings will identify defendant Jarrod “X” as
Jarrod Anderson, former Summit Food Service Director at Mike
Durfee State Prison, in his individual capacity.
4. That Hughbanks’s motion requesting that the USMS and the Clerk of
Court assist him in locating addresses for the unserved defendants
(Docket 110) is denied.
5. That Hughbanks’s motion for temporary restraining order (Docket 80),
motion for a private investigator (Docket 85), and motion for
substituted service by publication (Docket 95) are denied as moot.
6. That Hughbanks’s motions for appointment of counsel (Dockets 41,
65) are denied.
7. That Hughbanks’s motion for a preliminary injunctive order requiring
defendant Fluke to provide him a laptop computer (Document 41) and
supplemental motion for a desktop computer to use in his cell to type
legal documents (Document 65) are denied.
8. That Hughbanks’s motion for a default judgment (Docket 96) is
denied.
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9. That Hughbanks’s motion to substitute (Docket 62) is granted in part
and denied in part. Hughbanks’s motion to substitute the personal
representative of Dr. Saloum’s estate as a defendant for his claim
against “X” Saloum in his individual capacity is granted. Hughbanks’s
claim against “X” Saloum in his official capacity is dismissed without
prejudice and his motion to substitute Dr. Saloum’s successor as the
defendant for his official capacity claim against “X” Saloum is denied.
The caption in future filings will identify defendant “X” Saloum as the
Personal Representative of the Estate of Dr. Herbert Saloum,
deceased. Melissa Magstadt is substituted for Hughbanks’s official
capacity claims against the Secretary of the Department of Health and
Director of Correctional Health Services and the caption in future
filings will reflect this substitution. Hughbanks’s motion to substitute
Joan Adam, in her individual capacity, is denied
10. 	That Hughbanks’s request to amend the caption regarding
defendant Gilchrist and defendant Global Tel Link (Docket 62) is
granted. The caption in future filings will identify defendant Gilchrist
as “THOMAS GILCHRIST, Sex Offender Management Program
Counselor/Therapist, Mike Durfee State Prison, in his individual and
official capacity” and defendant Global Tel Link Corporation as
“Global Tel Link Corporation n/k/a ViaPath Technologies.”
11. 	That Hughbanks’s motion to compel answers (Docket 61) is denied.
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12. 	That Hughbanks’s partial motion to dismiss (Docket 94) is
withdrawn and his claims for injunctive relief against Summit Food
Service and Kim Halverson are not dismissed.
13. 	That Hughbanks’s motion to seal (Docket 100) is denied.
Dated February 10, 2023.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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