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Dale v. Ketcher

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

March 17, 2016

JAMES IRVING DALE, Plaintiff,
v.
JAMES ROBERT KETCHER, TRAVIS TJEERDSMA, TAMMY DEJONG, JOSHUA KLIMEK, COREY TYLER, DARIN YOUNG, MARY CARPENTER, UNKNOWN DEPARTMENT OF CORRECTIONS EMPLOYEES, UNKNOWN DEPARTMENT OF HEALTH EMPLOYEES, Defendants.

OPINION AND ORDER DIRECTING SERVICE

ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE

Plaintiff James Irving Dale ("Dale") filed this lawsuit pursuant to 42 U.S.C. § 1983. Doc. 1. Dale is an inmate at the South Dakota State Penitentiary in Sioux Falls. This Court has screened his complaint pursuant to 28 U.S.C. § 1915A. For the following reasons, Dale's claims survive screening.

I. FACTS ALLEGED IN THE COMPLAINT[1]

On September 17, 2015, while Dale was incarcerated at Mike Durfee State Prison, his cellmate, Rex Gard, told him that Travis Tjeerdsma and Tammy Dejong were in Tjeerdsma's office complaining about extra work they had to do because of Dale's pending lawsuit, Dale v. Dejong 14-CV-4102. Doc. 1 at ¶ 14. Dale asked Gard to swear to this in an affidavit. Id. at ¶ 15.

On September 23, 2015, Dale was reassigned to a different cell. Id. at ¶ 16. James Robert Ketcher, one of Dale's new cellmates, told Dale two days later that Tjeerdsma and Dejong were again complaining about the extra work they had to do because of Dale's case. Id. at ¶ 17. Ketcher squabbled with Dale, saying that he did not want any extra trouble from prison staff because Ketcher was a transferee under protective custody. Id. at ¶¶ 17, 18.

On September 28, 2015, another inmate entered the cell while Dale and Ketcher were inside. Id. at ¶ 19. Dale alleges that the other inmate began kissing Ketcher and fondling his genitals. Id. Dale confronted both men, telling them to go elsewhere. Id. at ¶ 20. After the other inmate left, Ketcher got mad and told Dale to mind his own business. Id. at ¶ 21. Dale explained that while Ketcher could do what he pleased elsewhere, he could not do that in front of Dale because "homosexuality is an abomination in the eyes of God." Id.

The next day, Ketcher allegedly took a homemade knife, a "shank, " made of plexiglass and turned it into Tjeerdsma, telling him that it belonged to Dale. Id. at ¶ 22. Because Gard and Stan Maday were Dale's previous roommates, Tjeerdsma called them into his office to ask them whether they had ever seen Dale with a shank. Id. at ¶ 23. Dale was told about this and went to see Tjeerdsma. Id. at ¶ 24. Dale asked Tjeerdsma if he had asked Gard and Maday about the shank. Id. Tjeerdsma told Dale that he received the shank from a confidential informant and put Dale in the segregated housing unit ("SHU"). Id. at ¶ 25.

While Dale was in the SHU, Unit Manager Joshua Klimek visited him and asked what happened. Id., at ¶ 26. Dale explained the situation to Klimek, saying that he knew nothing about the shank. Id. Klimek told Dale that he did not believe Dale's story and that Dale would be transferred to the South Dakota State Penitientiary ("SDSP").

Prison officials levied an M-3 contraband charge against Dale. Id. at ¶ 27. The major disciplinary report, written by Tjeerdsma, states that Gard, Maday, and Ketcher all claimed they saw Dale with the shank. Id.

Dale's hearing was led by Disciplinary Hearing Officer Corey Tyler, a defendant in Dale's pending lawsuit. Id. at ¶ 28. Dale alleges that Tyler already had the commissary slip filled out when Dale entered the hearing, meaning the outcome was never in question. Id. At the hearing, Gard and Maday testified that they had never seen Dale with the shank. Id. at ¶ 29. Dale also introduced evidence that the shank came from the prison repair shop to which Ketcher has access. Id. at ¶¶ 22, 29. Dale argued that Ketcher was the only person who had allegedly seen him with the shank and explained to Tyler the events that led to Dale and Ketcher's fight. Id. at ¶ 30. Nevertheless, Dale was found guilty. Id. at ¶ 31. He was sentenced to thirty days in the SHU and a fine of $99. Id.

Returning to his cell after the hearing, Dale found his possessions already packed. Id. at ¶ 32. The next day he was transferred to SDSP. Id. at ¶ 33. Because he believes that orders to transfer prisoners take a certain amount of time to go through the prison system, Dale alleges that the order was signed and approved before his hearing. Id. at ¶ 34.

Upon his arrival at SDSP, Dale was immediately placed in the SHU. Id. at ¶ 33. After he was released to the general population, Dale received his personal property from MDSP. Id. at ¶ 36. Dale alleges that some of his possessions were missing including affidavits related to his pending lawsuit, his only copy of the complaint in his pending lawsuit, an affidavit for his habeas petition, and an affidavit related to the present lawsuit. Id. at ¶ 37. Dale claims that he needs these materials in order to respond to a motion for summary judgment and prepare for trial, and the fact that he does not have them interfered with his ability to litigate his lawsuit. Id. at ¶¶ 39, 40.

In December 2015, Dale had a parole hearing and was denied parole. Id. at ¶ 42. His disciplinary report concerning the shank at MDSP was raised, and Dale alleges that it was the deciding factor in the board's decision to deny him parole. Id.

Dale has Hepatitis C. Id. at ¶ 43. He alleges that a cure for Hepatitis C exists which includes taking the drug Harvoni. Id. To be prescribed Harvoni, Dale must first see a hepatology specialist. Id. at ¶ 44. On January 22, 2014, Michael Joe Hanvey, a physician's assistant at MDSP, requested that Dale be sent to a specialist for Hepatitis C treatment. Id. at ¶ 45. This request was allegedly denied by Mary Carpenter. Id. at ¶ 46.

Dale is Jewish and follows a kosher diet. Id. at ¶ 48. After he was fined for the shank incident, he was forced to order indigent supplies, including soap, from the SDSP commissary. Id. The commissary offers two brands of soap, one which contains animal fat and one which does not and is therefore kosher. Id. at ΒΆΒΆ 49, 50. Dale alleges that indigent Muslims at SDSP are allowed to order kosher soap from the commissary list but he is ...


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