Van Wyhe v. Reisch

• Citation: 536 F.Supp.2d 1110
• Decision Date: 13 February 2008
• Docket Number: No. CIV 07-4013.,CIV 07-4013.
• Parties: James Dean VAN WYHE, Plaintiff, v. Tim REISCH; Douglas Weber; Jennifer Wagner; Heather Veld; CBM Inc.; Troy Ponto; and Keith Ditmanson, Defendants.
• Court: U.S. District Court — District of South Dakota

536 F.Supp.2d 1110

James Dean VAN WYHE, Plaintiff, v. Tim REISCH; Douglas Weber; Jennifer Wagner; Heather Veld; CBM Inc.; Troy Ponto; and Keith Ditmanson, Defendants.

No. CIV 07-4013.

United States District Court, D. South Dakota, Southern Division.

February 13, 2008.

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James Dean Van Wyhe, Sioux Falls, SD, pro se.

James Ellis Moore, Jeffrey L. Bratkiewicz, Woods, Fuller, Shultz & Smith, PC, Sioux Falls, SD, for Defendants.

MEMORANDUM OPINION AND ORDER

LAWRENCE L. PIERSOL, District Judge.

Pending before the Court is Defendants' Motion for Summary Judgment, Doc. 33. Plaintiff submitted a response to the motion indicating that he is not able to respond to the motion without the assistance of counsel. Defendants then submitted a reply. Plaintiff filed a response to the Defendants' reply, again stating he cannot respond to the motion without the assistance of counsel and requesting that this action be set for trial. For the reasons set forth below, Defendants' Motion will be denied in part and granted in part.

I. BACKGROUND

This action was brought by Plaintiff James Van Wyhe, an inmate at the South Dakota State Penitentiary ("SDSP"), seeking preliminary relief ordering the Defendants to provide him a kosher diet. Pursuant to a South Dakota Department of Corrections' ("SDDOC") disciplinary policy, Plaintiff was not allowed to consume a kosher diet for 30 days because he was found to have consumed non-kosher food. Defendants Douglas Weber and Jennifer Wagner were directed to provide a status report to the Court in response to the allegations made by Plaintiff. After receiving the Defendants' Status Response, Doc. 8, and supporting affidavits, Does. 9 and 10, showing that Plaintiff did not lose weight during the time he contended he did not eat, the Court ruled there was no basis for a temporary restraining order in this case and directed Plaintiff to file a response to Defendants' Status Response, Plaintiff filed a response, Doc. 14. He claims to have lost seven pounds between January 18, 2007 and January 24, 2007, during which time he states he ate no food. Beginning January 25, 2007, Plaintiff began eating again by secreting kosher foods that he traded with other inmates for the non-kosher food Plaintiff received on: the SDSP's main food line.

On February 10, 2007, Defendant Wagner, the Cultural Activities Coordinator who is responsible for overseeing the provision of religious diets at the SDSP, filed a Second Affidavit, Doc. 15. She states she received Plaintiffs request to resume the kosher diet after the 30-day suspension for a disciplinary violation and she has advised the SDSP's food service of this election. Plaintiff has not since informed the Court that he has been denied a kosher diet. Wagner also informed the Court that the SDSP's disciplinary policy was changed effective February 14, 2007. An inmate who violates any of the rules, policies, or, procedures governing religious diets is still subject to disciplinary action, but removal from the diet is no longer a sanction.

An Amended Complaint, Doc. 19, was filed by Plaintiff in which he asserts the following claims: (1) Defendant Reisch enacted a religious diet policy in August 2006, which Plaintiff claims violates his religious freedoms and due process protections; (2) Plaintiff was forced to sign a form acknowledging the religious diet policy without being allowed to modify the written form to protect his constitutional rights; and (3) Plaintiff was found guilty of a disciplinary violation without being allowed to call witnesses or view evidence relied upon for the guilty disciplinary finding,"and he was removed from the kosher diet, line for 30 days as punishment for that violation. The relief sought by Plaintiff in his Amended Complaint is: (1) to declare SDDOC Religious Diet Policy 1.5.F.2 unconstitutional; (2) to declare that the current discipline policy denies prisoners due process; (3) to receive fair and equal treatment to other similarly situated prisoners; (4) to live free from the threat of punishment for his religious beliefs and practices; (5) nominal, compensatory and punitive damages; (6) equal treatment of prisoners eating kosher and non-kosher diets; and (7) protection of prisoners' religious/dietary rights statewide.

Plaintiff seeks declaratory and injunctive relief regarding SDDOC Policy 1.5.F.2, which was in effect when this action was filed. Before the policy was changed, SDDOC Policy 1.5.F.2 provided that:

[A]n inmate who violates the rules governing religious diets may be removed from the religious diet program, lose commissary privileges, or both, as follows:

1, The first violation will result in a written warning.

2. The second violation will result in removal from the religious diet program for thirty (30) days and a loss of commissary food privileges for thirty (30) days.

3. The third violation will result in removal from the religious diet program for sixty (60) days and a loss of commissary food privileges for sixty (60) days.

4. The fourth or subsequent violation will result in removal from the religious diet program for ninety (90) days and a loss of commissary food privileges for ninety (90) days.

(Third Affidavit of Jennifer Wagner, Doc. 37, Ex. A.) These sanctions are the basis for Plaintiffs challenge to Policy 1.5.F.2. Effective February 14, 2007, Policy 1.5.F.2 was changed to eliminate removal from the religious diet program as a sanction for violating the rules governing religious diets. Plaintiff is, therefore, no longer subject to removal from a kosher diet for violating SDSP's rules governing religious diets and he does not allege the revised rule violates his rights.

Defendants seek summary judgment on all of Plaintiffs claims. Defendant Tim Reisch is the Secretary of the SDDOC. Defendant Douglas Weber is the Warden of the SDSP. As mentioned above, Defendant Jennifer Wagner is the Cultural Activities Director at the SDSP. CBM, Inc., is a company holding the contract with the SDDOC to supply meals to SDSP inmates. Defendants Troy Ponto and Keith Ditmanson are two SDSP officials that Weber assigned to investigate and propose a response to Plaintiffs administrative grievances Weber was required to answer. Defendants contend all of Plaintiffs claims for declaratory and injunctive relief regarding the disciplinary sanction of being removed from a kosher diet are moot because the policy was changed effective February 14, 2007 and Plaintiff is receiving a kosher diet. Defendants further claim Plaintiffs request for monetary damages is barred by qualified immunity because he does not allege violation of a constitutional right. Finally, Defendants assert Plaintiff has failed to allege and he cannot prove that SDDOC policies or the Defendants' action violated federal statutory or constitutional law.

The Court previously denied two motions for appointment of counsel in this action and Plaintiff now contends he is unable to respond to Defendants' summary judgment motion without the assistance of counsel. "Indigent civil litigants do not have a constitutional or statutory right to appointed counsel." Edgington v. Missouri Dep't of Corrections, 52 F.3d 777, 780 (8th Cir.1995). The factors relevant to evaluating a request for appointment of counsel include "whether both the plaintiff and the court will benefit from the appointment of counsel, taking into account the factual and legal complexity of the case, the presence or absence of conflicting testimony, and the plaintiffs ability to investigate the facts and present his claim." Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996). The Court earlier concluded that: (1) this case is not factually complex; (2) Plaintiff has demonstrated sufficient knowledge of the legal issues regarding his rights to a religious diet to enable him to pursue his claims without the appointment of counsel; (3) it appears there will be some conflicting testimony regarding whether Plaintiff lost weight due to the disciplinary sanction of being removed from the kosher diet, but Plaintiff has demonstrated an ability to procure documents and affidavits in support of his claims; and (4) Plaintiff has demonstrated he has the ability to investigate the facts and present evidence in support of his claims. Having considered all of the relevant factors, the Court denied Plaintiffs requests for appointment of counsel. Plaintiff has not submitted any additional information to alter the Court's earlier rulings regarding the appointment of counsel and the Court finds Plaintiff had the ability to respond to the summary judgment motion. That Plaintiff is proceeding prose See does not excuse him from complying with the Federal Rules of Civil Procedure, See Ackra Direct Marketing Corp. v. Fingerhut Corp., 86 F.3d 852, 856-57 (8th Cir. 1996).

II. DISCUSSION

In considering a motion for summary judgment, the Court asks the question whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED.R.Crv.P. 56(c). "Once the motion for summary judgment is made and supported, it places an affirmative burden on the non-moving party to go beyond the pleadings and `by affidavit or otherwise' designate `specific facts showing that there is a genuine issue for trial.'" Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 271 (8th Cir.1992) (quoting FED.R.Cm.P. 56(e)). Simply creating a factual dispute cannot defeat a motion for summary judgment; rather, there must be a genuine dispute over those facts that could actually affect the outcome of the lawsuit. See, e.g., Ghane v. West, 148 F.3d 979, 981 (8th Cir.1998). "A plaintiffs verified ... Complaint is the equivalent of an affidavit for purposes of, summary judgment, and a complaint signed and dated as true under penalty of...