Hughbanks v. Fluke et al

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; MELISSA MAGSTADT,
Secretary South Dakota Department of
Health and Correctional Health Services
Director, All SD DOC Locations, in her
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, Former
Secretary of Corrections, All SD DOC
Locations, in his individual capacity;
4:21-CV-04167-KES
ORDER DENYING GLOBAL TEL LINK
CORPORATION N/K/A VIAPATH
TECHNOLOGIES’S MOTION TO
DISMISS AND MOTION TO STAY
DISCOVERY
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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;
PERSONAL REPRESENTATIVE OF THE
ESTATE OF DR. HERBERT SALOUM,
DECEASED, Doctor of Medicine,
Employed though Department of
Health, South Dakota State
Penitentiary, in his individual 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; THOMAS
GILCHRIST, Sex Offender Management
Program Counselor/Therapist, Mike
Durfee State Prison, in his individual
and official capacity; BRENNA
CARLSON, Sex Offender Management
Program Director, All SD DOC
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Facilities, in her 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 N/K/A VIAPATH
TECHNOLOGIES, 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
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DOC Facilities, in his individual and
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
ANDERSON, 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 against several defendants, including Global Tel Link Corporation
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(GTL)1. Dockets 5, 20. GTL moves for dismissal of the amended complaint
(Docket 20) under Rule 12(b)(6) on the grounds that the amended complaint (1)
does not establish that GTL acted under color of state law and (2) does not
allege an actual injury as a result of GTL’s actions. Dockets 69, 70. GTL also
moves to stay discovery pending a ruling on its motion to dismiss. Docket 102.
The amended complaint alleges that: GTL contracted with the
Department of Corrections to provide LexisNexis on GTL tablet computers
issued to inmates. Docket 20 at 70. The network is frequently down, and “there
are exceptionally slow processing and spooling speeds, making it difficult to
actually conduct research[.]” Id. The LexisNexis system available to inmates on
the GTL tablets “has many flaws, errors, and bugs in it which further impede
research.” Id. Hughbanks alleges that the scope of case law available to
prisoners through LexisNexis is inadequate, but this allegation is not directed
at GTL. Id. Hughbanks also alleges that LexisNexis is not available in the legal
typing room, which makes “it more difficult and time consuming to accurately
quote case law, statutes, and conduct research.” Id. Hughbanks alleges that
“[t]hese issues caused injury . . . as [they] impeded and frustrated his ability ot
[sic] file appeal to state courts denial of habeas relief and to file a federal
petition.” Id.
1 In its corporate disclosure statement, GTL advised that “GTL recently
changed its name to ViaPath Technologies[.]” Docket 57. Hughbanks requested
to amend the caption to identify defendant Global Tel Link Corporation as
Global Tel Link Corporation n/k/a ViaPath Technologies. Docket 62. The court
granted Hughbanks’s request. Docket 114. In this opinion, the court will refer
to Global Tel Link Corporation n/k/a ViaPath Technologies as GTL.
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For the following reasons, the court denies GTL’s motion to dismiss.
I. 	Legal Standard
A court may dismiss a complaint for “failure to state a claim upon which
relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). When considering a Rule
12(b)(6) motion, the court must accept as true the factual allegations in the
complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citations
omitted). All reasonable inferences from the complaint must be drawn in favor
of the nonmoving party. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986)
(citations omitted). The pleaded facts must demonstrate a plausible claim, that
is, one in which the pleader has shown more than an abstract “possibility” that
the defendant has engaged in actionable misconduct. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). While civil rights and pro se complaints must be liberally
construed, Erickson, 551 U.S. at 94 (citations omitted), “a pro se complaint
must contain specific facts supporting its conclusions.” Martin v. Sargent, 780
F.2d 1334, 1337 (8th Cir. 1985) (citation omitted).
II. 	Under Color of State Law
To state a claim under § 1983, Hughbanks must allege the violation of a
right secured by the Constitution and must show that “the alleged deprivation
was committed by a person acting under color of state law.” West v. Atkins, 487
U.S. 42, 48 (1988) (citations omitted). GTL argues that the amended complaint
fails to state a claim upon which relief can granted because it is a private entity
and was not acting under color of state law. Docket 70 at 3-5.
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As GTL notes, there is a presumption that private conduct does not
constitute state action sufficient to give rise to § 1983 liability. Id. at 3 (citing
Rendell-Baker v. Kohm, 457 U.S. 830, 841 (1982)). But the Eighth Circuit has
recognized that “in a few limited circumstances, a private entity can qualify as
a state actor.” Roberson v. Dakota Boys & Girls Ranch, 42 F.4th 924, 928 (8th
Cir. 2022) (internal quotation omitted). A private party engaging in an alleged
deprivation of a constitutional right may be appropriately characterized as a
state actor when the private entity performs a traditional, exclusive public
function or the government acts jointly with the private entity. Id. at 928-29
(citation omitted). If the government outsources to a private entity one of its
constitutional obligations, the private entity performs a traditional, exclusive
public function. Id. at 929 (citation omitted). Whether a private entity acts
under color of state law is a “necessarily fact-bound inquiry.” Id. at 928
(quoting Doe v. N. Homes, Inc., 11 F.4th 633, 637 (8th Cir. 2021) and Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922, 939 (1982)).
In West, 487 U.S. at 54, the Supreme Court held that a physician who
practiced privately and contracted with the state to provide medical care to
state prisoners was a state actor when treating prisoners. The Court reasoned:
It is the physician’s function within the state system,
not the precise terms of his employment, that
determines whether his actions can fairly be attributed
to the State. Whether a physician is on the state
payroll or is paid by contract, the dispositive issue
concerns the relationship among the State, the
physician, and the prisoner. Contracting out prison
medical care does not relieve the State of its
constitutional duty to provide adequate medical
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treatment to those in its custody, and it does not
deprive the State’s prisoners of the means to vindicate
their Eighth Amendment rights. The State bore an
affirmative obligation to provide adequate medical care
to West; the State delegated that function to
respondent Atkins; and respondent voluntarily
assumed that obligation by contract.
Id. at 55-56 (footnote omitted). The court finds the Supreme Court’s analysis
persuasive in this case. Hughbanks alleges that the Department of Corrections
has contracted its constitutional duty to provide meaningful access to the
courts to GTL. Thus, the amended complaint contains sufficient allegations to
find, at this stage of the proceedings, that GTL acts under color of state law
when providing tablets for legal research in the prison and can be sued under
§ 1983. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1929 n.1
(2019) (“[T]his Court has recognized that a private entity may, under certain
circumstances, be deemed a state actor when the government has outsourced
one of its constitutional obligations to a private entity.”); Roberson, 42 F.4th at
930 (finding that North Dakota “outsourced its constitutional duty to provide
medical care to a child in its custody, delegating a traditional, exclusive public
function” to a private actor).
GTL contends that this court has “recently dismissed two similar
complaints against GTL based, in part, on the plaintiffs’ failures to plead facts
alleging any sort of ‘close nexus’ between GTL and the state that would
establish GTL as a state actor.” Docket 70 at 5. The allegations against GTL in
the two previous lawsuits are not similar to Hughbanks’s allegations. To the
contrary, there were no allegations that GTL had contracted with the
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Department of Corrections to provide any devices, technology, or services
integral to inmates’ ability to exercise their right of access to the courts. In
Shaw v. Kaemingk, No. 4:17-CV-04116-KES, 2018 WL 3682502, at *1, 2018
U.S. Dist. LEXIS 129520, at *2 (D.S.D. Aug. 2, 2018), the plaintiff alleged that
GTL, a company contracted to provide internet services to inmates, had denied
him the ability to receive music, books, and games on a tablet because he is
indigent. The court found that the “complaint does not provide a factual basis
to determine whether providing internet services is a function that is typically
the exclusive prerogative of the state.” 2018 WL 3682502, at *3, 2018 U.S.
Dist. LEXIS 129520, at *7. In this case, Hughbanks is not seeking to access
digital music, games, or books. He seeks access to statutes and case law, and
he alleges that the only way he can do so is through the “GTL Inspire tablet
computers issues to inmates to research[.]” Docket 20 at 70.
In Rindahl v. Noem, No. 4:20-CV-04044-RAL, 2020 WL 6728840, at *6,
2020 U.S. Dist. LEXIS 214131, at *15 (D.S.D. Nov. 16, 2020), the plaintiff
alleged that GTL contracted with the Department of Corrections to provide
telecommunication services to inmates in custody of the Department of
Corrections. The court granted GTL’s motion to dismiss because it could not be
deemed a state actor merely by virtue of its contract with the Department of
Corrections to provide telecommunication services. 2020 WL 6728840, at *6,
2020 U.S. Dist. LEXIS 214131, at *16. In this case, Hughbanks’s allegations
are not limited to a contractual obligation GTL may have had to provide
telephone or internet services. Hughbanks’s allegations arise out of GTL’s
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alleged failure to provide tablets with sufficient networking capability for legal
research, which is the only means available to Hughbanks to conduct legal
research because libraries with legal books have been eliminated.
GTL asserts that “numerous courts around the country have specifically
held that GTL does not become a public entity simply because it contracts with
the DOC to provide services.” Docket 70 at 4. But none of these other cases
arise out of a contract to provide a device, technology, or service that is
required for inmates to have meaningful access to the courts. In fact, in one of
the cases GTL cites, the court explained that “[p]roviding services that the state
would not necessarily provide does not automatically render the acts of
privately owned enterprises attributable to the state.” Anderson v. Sposato,
2013 WL 2023229, at *3, 2013 U.S. Dist. LEXIS 69000, at *12 (E.D.N.Y. May 9,
2013) (quoting Evans v. Skolnik, 2009 WL 3763041, at *5, 2009 U.S. Dist.
LEXIS 104427 (D. Nev. Nov. 5, 2009)). In this case, based on Hughbanks’s
allegations regarding how the Department of Corrections has chosen to provide
inmates access to the courts, see Docket 20 at 70, GTL is not providing a
service that the state would not necessarily provide. Rather, GTL is providing a
service that the Department of Corrections is constitutionally required to
provide. If inmates do not have meaningful access to LexisNexis using the “GTL
Inspire tablet computers issued to inmates to research”, id., they will be unable
to conduct legal research and unable to exercise their constitutional right to
access the courts. Thus, the allegations in this case differ from the allegations
in the cases on which GTL relies. Docket 70 at 4-5. Inmates can exercise their
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right to communicate with friends, family, and counsel while in prison without
using any services GTL may contract to provide to the Department of
Corrections. But according to Hughbanks, he can exercise his right to access
the courts only by using the device and services GTL has contracted to provide
to the Department of Corrections. Docket 20 at 70.
Similarly, the court does not agree that it has previously rejected the
“exact argument” that GTL’s contractual agreement to provide tables makes
GTL a state actor. Docket 76 at 1-2. In Maday v. Dooley, No. 4:17-CV-04168-
KES, 2018 WL 4334072, at *8, 2018 U.S. Dist. LEXIS 109551, at *23 (D.S.D.
June 7, 2018), report and recommendation adopted, 2018 WL 3216126, 2018
U.S. Dist. LEXIS 107935 (D.S.D. June 28, 2018), the plaintiff alleged that GTL
had conspired with the state to deprive him access to the courts. 	Because the
magistrate judge did not find the conspiracy allegations plausible, the
magistrate judge recommended dismissal of the access-to-courts claims
against GTL. 2018 WL 4334072, at *9, 2018 U.S. Dist. LEXIS 109551, at *25-
26. This court adopted the report and recommendation, finding that the
access-to-court claim against GTL did not survive screening. 2018 WL
3216126, at *1. 2018 U.S. Dist. LEXIS 107935, at *1.
In this case, Hughbanks has not alleged a conspiracy. Rather, he asserts
that “[i]t is [GTL]’s function that determines whether they are acting under color
of state law. It is not [GTL]’s contractual agreement for movies, games,
telephone service that matters, it is their contractual agreement to provide
inmates with legal access through the Lexis-Nexis application that makes them
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state actors.” Docket 74 at 19-20. The allegations in Maday did not require that
the court consider whether GTL was a state actor because the Department of
Corrections has an obligation to provide access to the courts and has delegated
that function to the GTL, which is what Hughbanks argues. See id. at 19.
Thus, the court’s analysis in Maday is not a reason to grant GTL’s motion to
dismiss.
Finally, GTL argues that it “has no control over how legal services are
provided to inmates[]” and that the Department of Corrections Policy for Inmate
Access to the Courts, Policy 1.3.E.1, does not reference or address GTL. Docket
76 at 4 & n.2. When considering a motion to dismiss under Rule 12(b)(6), the
court generally must ignore materials outside the pleading, but may consider
materials that are part of the public record. Porous Media Corp. v Pall Corp.,
186 F.3d 1077, 1079 (8th Cir. 1999) (internal citation omitted). Under South
Dakota law, Department of Correction Policy 1.3.E.1 is a public record. SDCL
§§ 1-27-1.1, 1-15-20.
Although the policy does not specifically mention GTL, the policy
provides that “[t]he DOC will provide access to legal reference materials via
offender tablets and kiosks, which shall be made available to offenders at all
DOC facilities.” DOC Policy 1.3.E.1 Inmate Access to the Courts, available at
https://doc.sd.gov/documents/1.3.E.1%20Offender%20Access%20to%20the%
20Courts%20(10.01.22).pdf (last visited Feb. 10, 2023). Hughbanks alleges
that the Department of Corrections has outsourced to GTL its constitutional
obligation to provide legal reference materials. This allegation, if true, means
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that GLT may be appropriately characterized as a state actor because it is
performing a traditional, exclusive public function. See Roberson, 42 F.4th at
929. Although the policy also provides that inmates can purchase soft cover
legal reference books and legal materials, the court does not agree that this
alternative provides indigent inmates meaningful access to the courts.
Construing the amended complaint liberally and giving Hughbanks the
benefit of all favorable inferences, which the court must do, the court finds that
Hughbanks has alleged that GTL acts under color of state law.
III. 	Actual Injury
To prevail on an access-to-courts claim, an inmate must show an actual
injury. Lewis v. Casey, 518 U.S. 343, 351 (1996). When bringing an access-to-
court claim, an inmate cannot merely allege a denial of access to a law library
or adequate attorney, even if the denial is systemic. Id. The inmate must show
the alleged inadequacy of the prison’s law library or legal assistance program
hindered the inmate’s efforts to proceed with a legal claim in a criminal appeal,
postconviction matter, or civil rights action seeking to vindicate basic
constitutional rights. Id. at 355. GTL argues that Hughbanks alleges only that
network and connectivity issues make it “difficult to actually conduct
research.” Docket 70 at 7 (quoting Docket 20 at 70). The court disagrees. The
court construes the amended complaint to allege that all the issues outlined in
the “Legal Access to Case Law and statutes” section of the amended complaint
have “caused injury . . . [and] impeded and frustrated [Hughbanks’s] ability ot
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[sic] appeal to state courts denial of habeas relief and to file a federal petition.”
Docket 20 at 70.
GTL contends that Hughbanks’s allegations of actual injury are “nearly
identical” to the plaintiff’s allegation in Bell v. Young, 2021 WL 3809363, 2021
U.S. Dist. LEXIS 161723 (D.S.D. Aug. 25, 2021). Docket 70 at 7. In Bell, the
plaintiff alleged only that “the prison tablets’ frequent failures impeded his legal
research.” 2021 WL 3809363, at *7, 2021 U.S. Dist. LEXIS 161723, at *20.
Contrary to Hughbanks’s amended complaint, Bell did not allege that “any
legal claim he has brought or sought to bring has been hindered or stymied by
a lack of access to the courts[.]” 2021 WL 3809363, at *7, 2021 U.S. Dist.
LEXIS 161723, at *21. At this stage, the court must accept as true
Hughbanks’s allegation that he has been unable to appeal the denial of a state
court request for habeas relief or to file a federal petition for habeas relief. Any
argument that Hughbanks will be unable to come forward with competent,
admissible evidence to support these allegations is premature.
In Waff v. South Dakota Department of Corrections, the complaint alleged
that the plaintiffs’ efforts to pursue legal claims had been hindered, and the
plaintiffs submitted affidavits “referring to the hindrance of habeas corpus
litigation and a pending court action.” 51 F. App’x 615 (8th Cir. 2002) (per
curiam). Although the actual injury allegations in the complaint were
somewhat conclusory, because of the added detail in the affidavits, the Eighth
Circuit reversed the pre-service dismissal of the access to courts claim. Id.
Because Hughbanks’s allegations of actual injury are similar to the allegations
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in Waff, the court finds that Hughbanks has alleged an actual injury. GTL’s
motion to dismiss (Docket 69) is denied.
IV. 	Motion to Stay Discovery
GTL moves to stay discovery pending a ruling on its motion to dismiss.
Docket 102. GTL’s motion to stay discovery is denied as moot.
Thus, IT IS ORDERED:
1. That GTL’s motion to dismiss (Docket 69) is denied. Pursuant to
Federal Rule of Civil Procedure 12(a)(4)(A), GTL must serve its answer
to the amended complaint (Docket 20) no later than 14 days after
entry of this order.
2. That GTL’s motion to stay discovery (Docket 102) is denied as moot.
Pursuant to Federal Rule of Civil Procedure 33, GTL must respond to
the Interrogatories to Viapath, dated August 14, 2022 (Docket 103-1
at 3) within 30 days after entry of this order.
Dated February 14, 2023.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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