Bird v. Mertens-Jones

Decision Date06 February 2023
Docket Number4:21-CV-04197-KES
PartiesHAROLD RUNNING BIRD, Plaintiff, v. TAMMY MERTENS-JONES, in her individual and official capacity as Administrative Remedy coordinator; DANIEL SULLIVAN, in his individual and official capacity as Warden of the South Dakota State Penitentiary; and DOUGLAS CLARK, in his individual and official capacity as Secretary of the South Dakota Department of Corrections; Defendants.
CourtU.S. District Court — District of South Dakota


TAMMY MERTENS-JONES, in her individual and official capacity as Administrative Remedy coordinator; DANIEL SULLIVAN, in his individual and official capacity as Warden of the South Dakota State Penitentiary; and DOUGLAS CLARK, in his individual and official capacity as Secretary of the South Dakota Department of Corrections; Defendants.

No. 4:21-CV-04197-KES

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

February 6, 2023



Plaintiff, Harold Running Bird, a member of the Native American Church and an inmate at the South Dakota State Penitentiary, filed a civil rights lawsuit under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and 42 U.S.C. § 1983. Docket 14. He brings claims for violations of RLUIPA, his First Amendment right to free exercise of religion, and his Fourteenth Amendment rights to substantive due process and equal protection.[1] Id. He sues all defendants in their individual and official capacities,


and he seeks a declaration “that the actions, decisions, policies and/or regulations of Defendants, so far as they prohibit [him] and other similarly situated Native American inmates of the [state penitentiary] from fully participating in family pow wows, sweats, and other religious ceremonies, violate RLUIPA, the First Amendment, and the Fourteenth Amendment[.]” Id. at 6. He asks the court to “[t]emporarily and permanently enjoin[] Defendants from continuing” with such illegal actions. Id.

Through counsel, defendants informed Running Bird that they intended to file a motion for summary judgment and a motion for stay of discovery based on qualified immunity. Docket 18 at 1. The parties attempted to reach a stipulation to amend the court's scheduling order, but they were unable to come to an agreement. Id. at 1-2. Running Bird then moved to extend the scheduling order, and defendants moved for a protective order to stay discovery pending resolution of the qualified immunity issue raised in their then-forthcoming motion for summary judgment. Dockets 18, 19. Running Bird opposes the motion for a protective order. Docket 21. Defendants then moved for summary judgment, which Running Bird opposes. Dockets 22, 32. All three motions are pending before the court.


Running Bird alleges that defendants have imposed a substantial burden on his religious exercise “by providing an inadequate space for family pow


wows.” Docket 14 ¶ 24. Specifically, he alleges that the room in which the family pow wows are hosted is “too small to allow for all of the families to join and restricts the ability of the participants to dance[,]” while other religious groups are allowed “to have religious ceremonies in larger spaces,” such as the gym or recreation yard. Id. ¶¶ 12-13, 36.

On June 26, 2020, Running Bird submitted a Project Application in which he requested that Native Americans be allowed to have 3-day pow wows in the recreation yard, with family and other guests allowed to attend. Docket 23-1. According to Running Bird, pow wows like this used to be allowed, and other religious organizations are currently allowed to have gatherings like this. Id. He explained that this kind of pow wow would “give relatives more chance[s] to sing, dance, eat, [and] visit” with one another. Id. His application was denied on August 27, 2020, by then-Unit Manager/Cultural Activities Coordinator Tammy Mertens-Jones and then-Associate Warden, whose signature appears to be that of Jennifer Dreiske. Id. No explanation for the denial was provided, only a comment that the “pow wows will continue in the REC [building] or visit room in the current time allowed.” Id.

On June 17, 2021, Running Bird filed an Informal Resolution Request again requesting that the facility allow for pow wows in the gym or outside because the visit room is “a small space” that “cannot hold very many [people] at all.” Docket 4-1 at 4. He claimed that “many cannot come to dance or sing and also feast with others because of” limitations on the number of people in the visit room at one time. Id. The Department of Corrections denied this


request on June 25, 2021, saying that “it has been determined [t]hat this has been resolved on a separate informal request.” Id. at 3. In a handwritten note on this denial, Running Bird noted that “nothing has been resolved, last week we were packed in the visit room so small the dancers couldn't sit down[.] Many sat on the floor to eat.” Id.

On June 27, 2021, Running Bird filed a Request for Administrative Remedy, reiterating that nothing had been resolved and that they were “still denied family pow wow[s] in the gym or recreation yard,” despite other religious groups using those spaces for religious activities. Id. at 2. He described the current space for pow wows as providing only a “small 6x10 area to dance[,] packing families [and] kids in [ ] like sardines.” Id. The Department of Corrections denied this request on July 1, 2021, because Running Bird “made no clear request.” Id. at 1.

Running Bird also claims that his free exercise of religion is substantially burdened by the prison's failure to ensure that religious ceremonies, such as sweats, are safe for all participants. Docket 14 ¶ 24. He alleges that by “mixing certain groups together,” such as gang members and their victims, the ceremonies are “not safe” and are a “dangerous situation.” Id. ¶¶ 17, 19.

On March 18, 2021, Running Bird, who has never been housed in West Hall, submitted a Project Application for “separate ceremonies for West Hall [protective custody] and other [Native American] individual[s] that cannot interact with gangs.” Docket 23-2; Docket 28 ¶ 120; Docket 31 ¶ 120. He claimed that Mertens-Jones “let[s] gangs run 1 pipes, 1 [Native American]


Church, 1 ties, so none of West hall will go to, to pray.” Docket 23-2. Running Bird also asserted that the involvement of sundancers, like himself, could help in alleviating the safety concerns at these ceremonies. See Id. Mertens-Jones and then-Associate Warden Dreiske denied this application on May 19, 2021. Id.

On June 27, 2021, Running Bird submitted a Request for Administrative Remedy, in which he again asked for separate ceremonies for pipe ceremonies, sweats, Native American Church, and tobacco ties. Docket 4-2 at 2. He again claimed that some West Hall inmates do not attend the ceremonies because of threats of violence, and he stated that having everyone in a single ceremony “create[s] animosities [and] anger during the ceremonies.” Id. The Department of Corrections denied this request on July 1, 2021, writing that Running Bird “made no clear request and raise[d] too many issues.” Id. at 1.


Summary judgment is appropriate if the movant “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party can meet its burden by presenting evidence that there is no dispute of material fact or that the nonmoving party has not presented evidence to support an element of its case on which it bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party must inform the court of the basis for its motion and identify the portions of the record that show there is no


genuine issue in dispute. Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citation omitted).

To avoid summary judgment, “[t]he nonmoving party may not ‘rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.' ” Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). Summary judgment is precluded if there is a genuine dispute of fact that could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The underlying substantive law identifies which facts are “material” for purposes of a motion for summary judgment. Anderson, 477 U.S. at 248. When considering a summary judgment motion, the court views the facts and the inferences drawn from such facts “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).


I. Running Bird Has Standing to Pursue His Claims Related to the Family Pow Wows and the Sweat Ceremonies

A. Legal Standard

The court must first address defendants' argument that Running Bird does not have standing. Bernbeck v. Gale, 829 F.3d 643, 646 (8th Cir. 2016) (“Standing . . . is a ‘jurisdictional prerequisite' and thus a ‘threshold issue that we are obligated to scrutinize[.]' ” (quoting Curtis Lumber Co. v. La. Pac. Corp., 618 F.3d 762, 770 & n.2 (8th Cir. 2010))). Standing has three elements: (1)


“the plaintiff must have suffered an injury in fact . . . [that] is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;” (2) “the injury has to be fairly traceable to the challenged action of the defendant;” and (3) “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (cleaned up). A concrete injury is one that “actually exist[s].” Spokeo, Inc. v. Robbins, 578 U.S. 330, 340 (2016). It must be “real, and not abstract,” but “intangible injuries can nevertheless be concrete.” Id. (internal quotations omitted). “[P]articularized . . . mean[s] that the injury must affect the plaintiff in a personal...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT