United States District Court, D. South Dakota, Southern Division
ORDER GRANTING LEAVE TO AMEND
Lwrence L. Piersol UNITED STATES DISTRICT JUDGE
Plaintiff, Thomas Kinter, is an inmate at the Mike Durfee State Prison in Springfield, South Dakota. Plaintiff filed a pro se civil rights lawsuit pursuant to 42 U.S.C § 1983. Docket 1. The court has now screened Kinter's complaint pursuant to 28 U.S.C. § 1915A. For the reasons stated below, Kinter is granted leave to amend his complaint.
In December 2015, Kinter was incarcerated at the Jameson Annex of the South Dakota State Penitentiary (SDSP). Docket 1 at
¶ 14. On December 30, 2015, Kinter's cell was searched, and CO. Shoemaker confiscated Kinter's migraine medication. Id. at ¶15. He asked Shoemaker to give him his medication and take him to the medical department because he was having a migraine, causing him severe pain. Id. at ¶16.
He asked another corrections officer, CO. Thayer, numerous times to take him to medical and give him back his medication. Id. at ¶ 18-20. Over time, Thayer's response escalated from mocking Kinter to eventually opening the cell and handcuffing Kinter. Id. at ¶¶ 18-21. Thayer put Kinter in a holding cell. Id. at ¶ 22.
While in the holding cell, Kinter again asked to be taken to medical. Id. at ¶ 23. Thayer angrily pushed Kinter, and he fell back and hit the wall, knocking him unconscious. Id. at ¶ 23-24. Kinter was taken to the segregated housing unit (SHU), barely conscious and asking to be taken to medical the entire time. Id. at ¶ 26.
When he arrived at SHU, Kinter was stripped searched. Id. at ¶ 27. While he was being searched, he heard correctional officers saying, "[P]ut him in with Spotted Elk. [H]e will like that." Id. Kinter was celled with Spotted Elk. Id. at ¶ 28. Spotted Elk immediately began to threaten Kinter, saying that all white people are worthless. Id. Kinter could not sleep for fear of Spotted Elk, who took Kinter's food and would not allow him to get off the bunk or use the bathroom. Id. at ¶ 29. The next day, Spotted Elk began to push and slap Kinter, threatening to kill him. Id. at ¶ 30. Kinter called the correctional officers, who brought him to a holding cell. Id. at ¶ 31. When the correctional officers tried to re-cell Kinter with Spotted Elk, Kinter refused and was written up. Id. at ¶¶ 32-33.
Kinter was in the SHU for five days. Id. at ¶ 34. He was never taken to medical. Id. He was never given care for his concussion. Id. While in the SHU, Kinter's headaches were so bad that he couldn't eat, he became sick, he was dizzy, and his vision was blurred. Id. at ¶ 35.
While he was in the SHU, Kinter was given a hearing concerning his punishment. Id. at ¶ 48. Because of his injuries, he does not remember the hearing. Id. He requested that a fellow inmate named Wyrich be called as a witness. Id. at ¶ 49. Prison officials refused. Id. They merely provided a written statement from Kinter's cellmate. Id. Afterward, Kinter asked Seth Hughes, his representative at the hearing, for grievance forms, so he could complain about the hearing, but Hughes refused. Id. at ¶ 50. Hughes told Kinter it did not matter because Thayer had already been fired. Id. at ¶ 51. Hughes was the prison official who responded to Kinter's grievance. Id. at ¶ 52.
After Kinter was released from the SHU, he went to sick call. Id. at 1 38. The medical department told him there was nothing they could do and returned him to his cell. Id. at¶ 39. He went to medical at SDSP seeking treatment many more times but was never treated for his headaches. Id. at ¶ 40.
In January 2016, Kinter was transferred to Mike Durfee State Prison (MDSP). Id. at ¶ 41. He has been to sick call many times at MDSP, but has not received treatment he feels is adequate. Id. at ¶¶ 42-43, 45. He had a CAT scan taken, but was never called for the result. Id. at ¶ 42. Besides this, he was only given a cold washcloth to put on his head and Tylenol, which does not help his pain. Id. at ¶¶ 43, 45. Ever since he was knocked unconscious by Thayer, he has had problems with memory loss that have affected his school work. Id. at ¶ 47.
Kinter attempted to exhaust his administrative remedies at both SDSP and MDSP. Id. at ¶ 54. He received the forms necessary for his appeal too late, and when he tried to file his appeal, he was told he was not allowed to appeal any longer. Id. at ¶¶ 55-56, 60-62. Because of his transfer and the time it took prison officials to respond to his grievance, he could not have timely filed his appeals. Id. at ¶ 63. Tammy DeJong also told him he could not grieve issues that happened in the Jameson Annex of SDSP. Id. at ¶ 57.
On April 6, 2016, Kinter filed this complaint. Id. He alleges that defendants violated his Eighth amendment rights by denying him access to medical care, taunting him, assaulting him, and housing him with a dangerous cellmate. Id. at ¶¶ 68-70, 73. He alleges that his due process rights were violated when he was sent to the SHU without breaking a prison rule, when he was disciplined for refusing housing, when the prison did not call his witness and conducted the hearing when he was unable to understand or participate, and when Hughes responded to his grievance concerning his disciplinary hearing. Id. at ¶ 72, 74-75, 77. ...