Landman v. Kaemingk
| Decision Date | 27 September 2019 |
| Docket Number | 4:18-CV-04175-KES |
| Parties | BURTON KENNETH LANDMAN, Plaintiff, v. DENNIS KAEMINGK, SUED IN OFFICIAL AND/OR INDIVIDUAL CAPACITY; ROBERT DOOLEY, SUED IN OFFICIAL AND/OR INDIVIDUAL CAPACITY; BRENT FLUKE, SUED IN OFFICIAL AND/OR INDIVIDUAL CAPACITY; ALEX REYES, SUED IN OFFICIAL AND/OR INDIVIDUAL CAPACITY; KARISSA LIVINGSTON, SUED IN OFFICIAL AND/OR INDIVIDUAL CAPACITY; AND JANE/JOHN DOE STAFF WORKING IN MDSP MAILROOM ON/AFTER 5/1/2018, SUED IN THEIR OFFICIAL AND/OR INDIVIDUAL CAPACITIES; Defendants. |
| Court | U.S. District Court — District of South Dakota |
ORDER DIRECTING SERVICE IN PART AND DISMISSING IN PART, GRANTING MOTION TO AMEND COMPLAINT, GRANTING MOTION FOR SERVICE, DENYING MOTION TO APPOINT COUNSEL, AND DENYING MOTION TO SUPPLEMENT COMPLAINT
INTRODUCTION
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. The court granted Landman leave to proceed in forma pauperis and Landman paid his initial partial filing fee. Dockets 5, 12. Landman moves to amend his complaint by inserting additional pages to his original complaint (Docket 1). Docket 14. Landman also moves for the appointment of counsel, to proceed in forma pauperis, to amend and supplement his amended complaint, and for the court to adopt and extend the "Brakeall single copy rule." Dockets 7, 10, 11, 16, 17. The court has now screened his amended complaint (Dockets 1, 14) under 28 U.S.C. § 1915A, and for the reasons stated below, the court directs service in part and dismisses in part.
FACTUAL BACKGROUND
According to Landman's complaint:
Landman is a disabled veteran with multiple disabilities including military-related PTSD, severe sleep apnea, and hypertension. Docket 1 ¶ 27. Since 1998, Landman has sought disability benefits from the Department of Veterans Affairs (VA) with the help of MDSP staff. Id. ¶ 29. Landman has been awarded VA service-connection benefits and is in the process of advancing various claims and appeals on these medical conditions. Id. ¶ 30. MDSP staff were aware that Landman is a veteran with VA service-connected disabilities, and were aware of the existence and treatment of his medical conditions. Id. ¶¶ 28, 34-35.
Since 1997, MDSP staff have regularly processed and delivered manila-enveloped mail addressed to Landman from a variety of agencies including mail from the VA. Id. ¶ 36. Landman frequently corresponds with the VA on pending disability benefits claims and appeals, and receives VA appellate decisions from appellate judges and federal courts. Id. ¶ 33. On January 19, 2018, MDSP posted a notice that procedures concerning incoming envelopes to the prisonwould change. Id. ¶ 16. On May 2, 2018, MDSP posted a revised policy, Inmate Correspondence Policy 1.S.D.3, which stated that "incoming envelopes must be white in color . . . [e]nvelopes that do not meet the criteria will be returned unopened to the sender[.]" Id. ¶ 20.
The day before, on May 1, MDSP mailroom staff rejected a manila envelope addressed to Landman from the VA's Board of Veterans Appeals (BVA). Id. ¶ 38. The correspondence was rejected without notice to Landman and was returned unopened to the sender. Id.; see also Docket 1-1 at 8-9. A different VA decision and order addressed to Landman was rejected by MDSP staff on May 17. Docket 1 ¶ 39; see also Docket 1-1 at 6-7. Landman alleges that Karissa Livingston and unknown mailroom staff personally rejected his incoming legal mail from the VA, returned the mail as undeliverable to the sender, and failed to notify Landman of the rejections. Docket 1 ¶ 87. Landman remained unaware of his rejected legal mail until June 11, 2018, when the VA Evidence Intake Center sent a letter to Landman alerting that his BVA decision letters were being rejected and returned to it as undeliverable. Id. ¶ 40; see also Docket 1-1 at 6-9. Landman alleges that he no longer can litigate his federal disability claim because defendants rejected his mail, and his responses to the VA decisions are now time-barred. Docket 1 ¶ 97.
On June 12, 2018, Landman filed an Informal Resolution Request (IRR), alleging that the rejection of his VA mail could cost him $2,977.86 in monthly VA disability benefits. Id. ¶ 41; see also Docket 1-1 at 10-12. That same day, MDSP responded to his IRR, stating that Docket 1 ¶ 42; see also Docket 1-1 at 13. Three days later, on June 15, Landman filed a Request for Administrative Remedy (ARR), alleging that the reply to his IRR did not reasonably respond to his issue and injury. Docket 1 ¶ 44; see also Docket 1-1 at 14. On June 19, Landman asked Alex Reyes, MDSP Associate Warden of Operations and Facility Americans with Disabilities Act (ADA) Coordinator, for an "Inmate Request for Reasonable Accommodation Form" as required by Department of Corrections (DOC) ADA Policy 1.1.E.7. Docket 1 ¶ 45. Reyes declined to respond to Landman's request. Id. Landman alleges this was in retaliation for filing his mail interference grievances because Reyes' reaction was only seven days after Landman filed his IRR and four days after his follow-up ARR. Id. ¶ 88.
Because Reyes would not give him the ADA form, Landman created his own ADA Reasonable Accommodation Form and provided it to Reyes on June 24. Id. ¶ 46; see also Docket 1-1 at 15. Reyes again did not respond. Docket 1 ¶ 46. On July 18, Landman's June 15th ARR request was denied by Brent Fluke, MDSP Warden. Id. ¶ 48. Fluke reiterated that all non-white envelopes would continue to be rejected and returned unopened to the sender without notice to inmates. Id. On July 26, Landman appealed the denial of his ARR to Dennis Kaemingk, Secretary of the South Dakota DOC. Id. ¶ 50; see also Docket 1-1 at 16.
After his VA mail issues, Landman had a chronic case exam conducted by a Physician Assistant (PA) with the DOC Medical Health Services. Docket 1¶ 52. The PA was concerned about the spike in Landman's normally well-controlled blood pressure. Id. On August 23, another exam was conducted concerning Landman's military-related PTSD, anxiety, and depression. Id. ¶¶ 52-53. Landman was given various techniques and exercises to use when distressed over the mail rejections. Id. ¶ 53; see also Docket 1-1 at 21-23. Landman alleges that the stress caused by his VA correspondence being rejected has greatly affected his sleep, his previously managed PTSD, anxiety, depression, and has increased the frequency and intensity of his panic attacks. Docket 1 ¶ 43. During this time, Fluke told Landman that the prison was looking into getting VA mail deemed privileged or legal mail, and that Fluke would personally contact the VA to re-mail the rejected decisions. Id. ¶¶ 54, 63.
Landman also alleges that the prison rejected or diverted a VA past-due benefits check of $39,073.34 that the VA released to Landman on July 27, 2018. Id. ¶¶ 69, 80; see also Docket 1-1 at 30-31. This retroactive benefits money was never released to Landman, reflected in his bank statements, or physically delivered to him by MDSP staff. Docket 1 ¶ 81. Landman was unaware that the money had been released to him until November 15, when he received a November 8th letter from the VA, informing Landman that the Department had failed to withhold 20% of attorney's fees when the VA released to Landman the entire amount of his past-due benefits, resulting in an overpayment of $7,814.67. Id. ¶ 80; see also Docket 1-1 at 30-31. To recoup the attorney's fees, the VA will garnish $136.42 monthly disability benefits until the missing $7,814.67 is paid in full. Docket 1 ¶ 84. Landman claimsLivingston, mailroom staff, or the other defendants converted this money in retaliation for submitting his grievances and ADA accommodation requests. Id. ¶¶ 82, 87. Because defendants converted and stole his $39,073.34 check, Landman cannot pay the missing $7,814.67. Id. ¶ 83.
On November 20, 2018, Landman was handed an envelope from DOC Administration addressed to Landman but not postmarked or labeled. Id. ¶ 75. The letter said Landman's request for appeal of administrative remedy was denied by Kaemingk for two reasons: "[Landman] did not provide a copy of the [IRR]," and "[t]his issue cannot be appealed to the Secretary of Corrections." Id. ¶¶ 75-76; see also Docket 1-1 at 19. Landman contends that he has exhausted all available administrative remedies. Docket 1 ¶ 14. As of the date of the complaint, Landman has not received his rejected legal mail, missing VA funds, and the DOC policy prohibiting manila envelopes has not changed. Id. ¶ 54.
LEGAL STANDARD
The court must accept "the well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor" of the non-moving party. Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014). Civil rights and pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). Even with this construction, "a pro se complaint must contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985); see also Ellis v. City of Minneapolis, 518 F. App'x 502, 504 (8th Cir. 2013). Civil rights complaints cannot be merely conclusory.Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993); Parker v. Porter, 221 F. App'x 481, 482 (8th Cir. 2007).
A complaint "does not need detailed factual allegations . . . [but] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "If a plaintiff cannot make the requisite showing, dismissal is appropriate." Abdullah v. Minnesota, 261 F. App'x 926, 927 (8th Cir. 2008); see also Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). Under 28 U.S.C. § 1915A, the court must...
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