Landman v. Kaemingk, 4:18-CV-04175-KES

• Decision Date: 02 July 2020
• Docket Number: 4:18-CV-04175-KES
• Parties: BURTON KENNETH LANDMAN, Plaintiff, v. DENNIS KAEMINGK, in his individual and official capacity, ROBERT DOOLEY, in his individual and official capacity, BRENT FLUKE, in his individual and official capacity, ALEX REYES, in his individual and official capacity, KARISSA LIVINGSTON, in her individual and official capacity, and JANE/JOHN DOE STAFF WORKING IN MDSP MAILROOM ON/AFTER 5/1/2018, in their individual and official capacities, Defendants.
• Court: U.S. District Court — District of South Dakota

BURTON KENNETH LANDMAN, Plaintiff, v. DENNIS KAEMINGK, in his individual and official capacity, ROBERT DOOLEY,in his individual and official capacity, BRENT FLUKE, in his individual and official capacity,ALEX REYES, in his individual and official capacity,KARISSA LIVINGSTON, in her individual and official capacity, and

JANE/JOHN DOE STAFF WORKING IN MDSP MAILROOM ON/AFTER 5/1/2018,

in their individual and official capacities, Defendants.

4:18-CV-04175-KES

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

July 2, 2020

ORDER DENYING PLAINTIFF'S MISCELLEANEOUS MOTIONS

Plaintiff, Burton Kenneth Landman, is an inmate at Mike Durfee State Prison (MDSP). Landman filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Docket 1. This court screened Landman's complaint under 28 U.S.C. § 1915A and directed service in part and dismissed in part. Docket 18.¹

Defendants answered the complaint on December 30, 2019. Docket 34. On January 30, 2020, Landman moved the court to clarify the screening order, for appointment of counsel, and for leave to amend his complaint after the court has ruled on his "motion to clarify[.]" Docket 36. He also moves to strike the denials and affirmative defenses set forth in defendants' answer. Docket 37.

I. Motion to Amend/Motion to Clarify

In his unopposed motion (Docket 36), Landman claims that this court failed to acknowledge his section 504 Rehabilitation Act claims and that his South Dakota Human Rights Act (SDHRA) claim, Equal Protection claim, Eighth Amendment claim, and state-law tort claims should not have been dismissed. Docket 36 at 2-13. He asserts that he is not asking to amend his complaint but would like the court to clarify why his claims were dismissed. Id. After review of the motion, this court liberally construes the pleading in Landman's favor and believes that Landman is trying to amend claims that were dismissed in this court's screening order because he alleges different facts and legal arguments.

Federal Rule of Civil Procedure 15 governs amendments of pleadings. See Fed. R. Civ. P. 15. Under the rule, a party may amend a pleading once as a matter of right within 21 days after serving the pleading. Fed. R. Civ. P. 15(a)(1). Thereafter, the party may amend only with the written consent of the opposing party or the court's permission. Fed. R. Civ. P. 15(a)(2). "The court should freely give leave [to amend] when justice so requires." Id. Even under this generous standard, a court may deny a request to amend for " 'compellingreasons such as undue delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or futility of the amendment.' " Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008) (quoting Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir. 2005)).

"A liberal amendment policy, however, is in no way an absolute right to amend. Where an amendment would likely result in the burdens of additional discovery and delay to the proceedings, a court usually does not abuse its discretion in denying leave to amend." Popp Telcom v. Am. Sharecom, Inc., 210 F.3d 928, 943 (8th Cir. 2000) (internal citation omitted). "When late tendered amendments involve new theories of recovery and impose additional discovery requirements, appellate courts are less likely to hold a district court abused its discretion." Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008). Further, a "[d]enial of a motion for leave to amend on the basis of futility means the district court has reached the legal conclusion that the amended complaint could not withstand a motion to dismiss under Rule 12(b)(6)." Moody v. Vozel, 771 F.3d 1093, 1095 (8th Cir. 2014) (internal quotation omitted). Under Rule 12(b)(6), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court will now address each claim Landman asked the court to clarify.

A. Section 504 of the Rehabilitation Act

Landman claims that this court failed to acknowledge his Section 504 of the Rehabilitation Act claim when it addressed his ADA claims in its screeningorder. Docket 36 at 2. The Rehabilitation Act states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. "The Rehabilitation Act does not authorize individual liability." Brotherton v. Hill, 2013 WL 122698, at *1 (E.D. Ark. Jan. 9, 2013) (citing Damron v. N.D. Comm'r of Corr., 299 F. Supp. 2d 960, 979 (D.N.D. 2004)). Because the Rehabilitation Act does not authorize individual liability and Landman's defendants are all individuals, allowing him to amend his complaint to add Section 504 Rehabilitation Act claims would be futile. Therefore, the motion to amend the Section 504 Rehabilitation Act claim is denied.

B. SDHRA Claim

Landman argues that he meant to cite to the statute more generally and not just to the employment section in his complaint. Docket 36 at 3. He now seeks to amend his complaint and alleges that defendants have violated SDCL § 20-13-24. Id. at 4. Section 20-13-24 covers public services and unfair or discriminatory practices:

It is an unfair or discriminatory practice for any person engaged in the provision of public services, by reason of . . . disability . . . to fail or refuse to provide to any person access to the use of and benefit thereof, or to provide adverse or unequal treatment to any person in connection therewith.

SDCL § 20-13-24. Landman claims that defendants have not made a good faith effort to accommodate him as an individual with a disability. Docket 36 at 4. A person who claims to be "aggrieved by a discriminatory or unfair practice mayfile with the Division of Human Rights . . . . The charge shall set forth the facts upon which it is based, and shall contain any other information required by the division." SDCL § 20-13-29.

The South Dakota Supreme Court has interpreted "the word 'may' in [SDCL § 20-13-29] to mean that administrative exhaustion with the Division is required with all claims that fall within its jurisdiction." O'Brien v. W. Dakota Tech. Inst., 670 N.W.2d 924, 928 (S.D. 2003) (citing Montgomery v. Big Thunder Gold Mine, Inc., 531 N.W.2d 577, 579 (S.D. 1995)). "Any charging party or respondent claiming to be aggrieved by a final order of the Commission of Human Rights, . . . may obtain judicial review thereof under chapter 1-26." SDCL § 20-13-47. Under the South Dakota Administrative Procedures Act (chapter 1-26), "[f]ailure to exhaust administrative remedies where required is a jurisdictional defect." S.D. Bd. of Regents v. Heege, 428 N.W.2d 535, 539 (S.D. 1988).

Landman asserts that "he was only required to exhaust his disability related 'administrative remedies' under the SDHRA via prison [South Dakota Department/agency] level and not required to exhaust administratively within the state beyond DOC exhaustion." Docket 36 at 5 (alteration in original). Landman claims that his "SDHRA claims are so intertwined with his ADA Title II claims and § 504 RA claims that the Supremacy Clause absolutely excuses him from exhausting beyond prison grievance requirements on disability-related issues." Id.

The Supremacy Clause of the United States Constitution preempts state law and state constitutional law that conflicts with federal law. U.S. Const. art. VI, cl. 2. State law is " 'pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.' " S.D. Min. Ass'n, Inc. v. Lawrence Cty., 155 F.3d 1005, 1009 (8th Cir. 1998) (quoting Cal. Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 581 (1987)).

In South Dakota Farm Bureau v. Hazeltine, this court held that an amendment of the South Dakota Constitution was in violation of the Supremacy Clause because there was no way for the plaintiffs to follow the amendment without violating the ADA. 202 F. Supp. 2d 1020, 1042-43 (D.S.D. 2002). Here, Landman argues that he does not have to exhaust his SDHRA claims because they are "intertwined" with his section 504 Rehabilitation Act and ADA claims. Docket 36 at 5. But Landman has not alleged facts to show that the exhaustion requirements for the SDHRA are in direct conflict with or frustrate the federal statutes.

Next, Landman argues that he is excused from exhausting administrative remedies (before the Commission of Human Rights) because he falls into three (of five) exceptions set forth in Heege. Id. Landman claims the exceptions 2, 3, and 5 apply to him. Id. Heege established that under exception 2, "[e]xhaustion is not required where the agency fails to act." Heege, 428 N.W.2d at 539 (citing Weltz v. Bd. of Educ. of Scotland, 329 N.W.2d 131, 132 n.1 (S.D. 1983) (holdingthat because the school board failed to notify the plaintiff that her contract was not going to be renewed, there was no decision for the plaintiff to appeal, making exhaustion unnecessary)). Here, Landman claims that the South Dakota Attorney General's office did not respond to his "Notice of Claim" on October 26, 2018. Docket 36 at 5. Under SDCL § 20-13-29, the claim must be filed with the Division of Human Rights. Because Landman did not file his claim with the Division of Human Rights, he has not shown that the Division of Human Rights failed to act and therefore exception 2 does not apply.

Exception 3 states that "[e]xhaustion is not required where the agency does not have jurisdiction over the subject matter or parties." Heege, 428 N.W.2d at 539 (citing Johnson v. Kolman, 412 N.W.2d 109, 112 (S.D. 1987)). Landman...