United States District Court, D. South Dakota, Southern Division
ORDER WAIVING INITIAL PARTIAL FILING FEE, DENYING
MOTION REQUESTING ORDER, GRANTING MOTION FOR LEAVE TO FILE A
SUPPLEMENTAL COMPLAINT, DISMISSING COMPLAINT IN PART, AND
E. SCHREIER UNITED STATES DISTRICT JUDGE
Winston Grey Brakeall, is an inmate at the South Dakota State
Penitentiary (SDSP) in Sioux Falls. He filed a pro se civil
rights lawsuit under 42 U.S.C. § 1983 and requested
leave to proceed in forma pauperis under 28 U.S.C. §
1915. Docket 1; Docket 3. The court granted this request and
ordered Brakeall to pay an initial partial filing fee of
$100.70 by June 3, 2016. Docket 7. Brakeall now moves to pay
the filing fees from his frozen savings account. Docket 11.
He also moves for leave to file a supplemental complaint.
Docket 13. For the reasons below, the court waives
Brakeall’s initial partial filing fee, grants him leave
to file a supplemental complaint, screens his complaint under
28 U.S.C. § 1915A, dismisses the complaint in part, and
to his complaint, Brakeall was living with his parents in
Illinois in November 2014. Docket 1 at ¶ 27. On November
4, 2014, Brakeall was taken into custody on a warrant from
the South Dakota Board of Pardons and Paroles (the Board).
Id. He was transferred to the SDSP. Id. at
¶ 28. When he arrived at the Jameson Prison Annex (JPA)
in SDSP, he told the admitting officer that he would not be
safe in the general population. Id. He was told to
discuss it with staff in the morning and he was housed in the
Brakeall got ready for breakfast the next morning, he heard
other prisoners call him “Chomzilla, ” a
sobriquet derived from “child molester, ” a
reference to Brakeall’s crime, and “Godzilla,
” a reference to Brakeall’s immense size
(Brakeall is 6’ 9”, 330 pounds). Id. at
¶¶ 29, 54. This was an insult used against Brakeall
during the sixteen years he was incarcerated. Id. at
breakfast, Brakeall was confronted by his cellmate, a gang
member. Id. at ¶ 30. The cellmate said he had
been ordered to assault Brakeall, but had refused the order
to save his parole eligibility. Id. Brakeall’s
cellmate was beaten by the gang for refusing to assault him.
Id. at ¶ 33. Brakeall told prison staff about
the threats against him, but nothing was done. Id.
at ¶ 31. Brakeall did not want to cause trouble because
he also wanted to save his parole eligibility. Id.
He was still awaiting his parole revocation hearing at the
time. Id. at ¶ 34. Brakeall’s cellmate
told him that other prisoners were spreading rumors about
him, saying that he had been re-incarcerated because he had
committed another sex offense. Id. at ¶ 32. The
cellmate claimed the rumors were spread to encourage
prisoners to assault Brakeall. Id.
December 11, 2014, JPA staff told Brakeall he was going to be
transferred to the general population in East Hall to await
his parole revocation hearing. Id. at ¶ 34.
Brakeall told staff he would be in danger in East Hall.
Id. Staff told him he could relocate and discuss it
with staff in East Hall or go to the Segregated Housing Unit
(SHU) for refusing a transfer. Id. In order to
protect the possibility of parole, Brakeall went to East
arrived, Brakeall immediately warned staff, including Unit
Manager Tim Meirose that he was in danger. Id. at
¶¶ 35-36. Meirose told Brakeall that there were no
cells other than the one he had been assigned. Id.
at ¶ 36. He told Brakeall he could accept his cell or go
to the SHU for refusing a cell. Id. Brakeall
accepted his cell. Id. Two days later, on December
13, 2014, Brakeall was assaulted in the SDSP dining hall.
Id. at ¶ 37.
the assault, while being evaluated by health services, an
unknown correctional officer gave Brakeall three options: he
could go back to his cell, he could refuse housing, or he
could ask for protective custody. Id. at ¶ 38.
The officer told Brakeall that seeking protective custody
“gives you kind of a reputation as a punk.”
Id. Brakeall returned to his cell. Id.
After the assault, the assailant told the unknown
correctional officer that the threat against Brakeall from
gangs in East Hall was severe. Id. at ¶ 39. The
officer then sent Brakeall to West Hall for his protection.
Id. No photographs of Brakeall’s injuries or
statements were taken by prison staff, and no incident report
was made. Id. at ¶¶ 40, 41.
December 14, 2014, Brakeall’s arrest warrant was
dropped, and he was placed on parole. Id. at ¶
42. Two days later, he was transferred to the Unit C Trustee
facility in the Community Transition Program. Id.
Starting in January 2015, Brakeall was given time off the
unit for treatment, but otherwise confined at the prison.
Id. at ¶ 43.
March 2015, Brakeall was arrested and placed on a ninety day
administrative detainer for failing a polygraph test.
Id. at ¶ 44. There was no evidence or
allegations of any criminal activity. Id. For the
rest of March 2015, Brakeall was held in JPA. Id. at
¶ 45. He was threatened by other inmates and his
belongings were stolen. Id. Again he told prison
staff what was happening, but they did nothing. Id.
parole agent Travis Ripperda made an offer to him: if
Brakeall would pay for sixty days of GPS monitoring, new
polygraph tests, and weekly treatment, he would be put back
on parole. Id. at ¶ 46. Brakeall’s
parents paid. Id. at ¶ 47. Brakeall alleges
that these things are normally cheaper than the amount he
paid and normally subsidized or paid for by the parole
department. Id. After payment, Brakeall was returned
to CTP. Id.
policies enacted by Dennis Kaemingk, Brakeall was allowed to
leave Unit C only for weekly meetings with Ripperda,
treatment, and to search for a job. Id. at ¶
48. In September 2015, Aileen Winters was assigned as
Brakeall’s parole officer. Id. at ¶ 49.
At this time, Brakeall was confined to Unit C except for work
(he had been hired at a fast food restaurant), treatment, and
chores such as laundry. Id. at ¶ 50. Brakeall
was not allowed free time outside of the prison, even though
he was on parole. Id.
December 1, 2015, Brakeall was again arrested for failing a
polygraph test. Id. at ¶ 51. He was placed on
administrative detainer and moved to JPA. Id. The
next day, he was transferred to East Hall. Id. at
¶ 52. Brakeall warned several members of prison staff,
including Unit Manager Derrick Bieber, that he was in danger.
Id. Brakeall was again given the option of accepting
his cell in East Hall or being written up and sent to the
SHU. Id. In order to save his parole eligibility, he
chose the former. Id.
December 14, 2015, Winters came to Brakeall’s cell and
told him that she and J.C. Smith, her supervisor in the
parole department, planned to have Brakeall stay in SDSP for
90 days, take a polygraph, and if he passed, he would be
paroled back to CTP. Id. at ¶¶ 13, 53. In
January 2016, two inmates told Brakeall that the gangs in
East Hall warned them not to associate with Brakeall and that
the gangs were going to assault Brakeall or extort money from
him. Id. at ¶ 53. They explained that because
of Brakeall’s size and the fact that he would not fight
back in order to protect his parole eligibility, other
prisoners planned to attack him to “make their
bones” without fear that he would fight back.
Id. at ¶ 54.
told Bieber, who said he would “look into it.”
Id. at ¶ 56. When Brakeall told other
correctional officers, they told him that without the names
of inmates who were going to attack him, they could do
nothing to protect him. Id. at ¶ 57. Brakeall
told Winters about the threats, but she told him to tell the
prison staff. Id. at ¶ 58.
February 2, 2016, Brakeall was assaulted. Id. at
¶¶ 59, 60. He was in the recreation building,
playing cards with another inmate when he was struck from
behind and knocked to the floor. Id. at ¶¶
60-61. Because there were no correctional officers in the
card room, Brakeall was beaten by three inmates for at least
one minute, the assailants punching and kicking him in the
head, back, and torso. Id. at ¶¶ 62-63.
The attack did not stop until the assailants left on their
own accord. Id. at ¶ 67. By that time, Brakeall
was bleeding profusely from his nose and head, and his
friend, a fellow inmate, worried that his skull had been
fractured. Id. at ¶¶ 67, 68.
the assault, Brakeall, covered in blood and still bleeding,
found a correctional officer and told him about the attack.
Id. at ¶ 72. The officer called for an escort
to take Brakeall to health services. Id. at ¶
73. After several minutes, Lieutenant Ryan Vanderaa escorted
Brakeall to health services. Id. at ¶¶
73-74. Brakeall told Vanderaa that he wanted the attackers to
be criminally charged because he was a parolee on an
administrative detainer, not an inmate. Id. at
¶ 74. Vanderaa said that the attackers would be charged
and that pictures of Brakeall’s wound would be taken as
would statements about the attack. Id.
services bandaged Brakeall’s wounds. Id. at
¶ 75. His injuries included:
[A] deep trauma nose bleed; right temple laceration; left
temple abrasion; extensive bruising and swelling of the left
ear; extensive bruising to both forearms; abrasions on his
right elbow; “goose eggs, ” pain and swelling at
impact points across both temples, across the back and crown
of his skull, at the base of the skull where the spine
enters; muscular trauma to the neck, jaw, and torso; and
bruising which reached Plaintiffs lower back.
Id. at ¶ 71. While being seen by health
services, Brakeall complained of dizziness and nearly fell
over multiple times. Id. at ¶ 75.
Brakeall was seen by health services, Vanderaa handcuffed him
and brought him to the SHU for investigative purposes.
Id. at ¶ 76. When they got to the SHU, Vanderaa
was told that the inmates who attacked Brakeall were being
taken to the SHU, so Vanderaa took Brakeall to the SHU main
gate and put him in a holding cell. Id. at
¶¶ 77-79. Brakeall was still bleeding and asked
prison staff for help, but they did nothing. Id. at
¶¶ 80-81. Forty minutes later, SHU Case Manager
Lana Jackson came to the holding cell and told Brakeall that
he was going back to East Hall. When she saw he was still
bleeding, she took him to health services first. Id.
at ¶ 82.
leaving health services, Brakeall dressed and went to lunch.
Id. at ¶ 85. His nose started bleeding again
and correctional officer J. Zoss ordered him to eat by
himself. Id. at ¶ 85. Because he was still
bleeding, Brakeall abandoned his lunch. Id. Brakeall
was taken to health services in order to go to the emergency
room at the Avera trauma center. Id. at ¶ 86.
He was escorted by correctional officers William Allen and
and Zoss told the medical staff that the video from the
recreation building showed that three inmates attacked
Brakeall. Id. at ¶ 87. They also said that one
attacker was a parolee on a 60 day administrative detainer
and that the assault was gang related. Id. After
numerous attempts, the doctor was able to stop
Brakeall’s nose bleed. Id. at ¶ 90.
Brakeall believes he lost more than a pint of blood.
Id. at ¶ 91. The doctor ordered a CAT scan
because Brakeall could not remember whether he was hit in the
face, but the scan showed no fractures or internal
hemorrhages. Id. at ¶¶ 92, 96.
they waited for the results of the scan, Allen and Zoss
discussed overtime work at the prison. Id. at ¶
94. Allen said he expected to do over twenty hours of
overtime that week. Id. They also discussed
“stealing” correctional officers from recreation,
when correctional officers who are supposed to be monitoring
the recreation building are taken to transport an inmate.
Id. at ¶ 95. The correctional officers stated
that the group assigned to the recreation building would not
be enough even before some were “stolen.”
Id. Inmates later told Brakeall that SDSP was
operating with nine fewer officers than required on the day
he was assaulted. Id. at ¶ 66. He was also told
that the staff member responsible for monitoring the video
feed in the recreation building was playing games on her
phone. Id. at ¶ 65.
Brakeall returned to SDSP, he was put in his original cell.
Id. at ¶ 97. He was not taken to health
services to discuss treatment. Id. At no point did
prison staff take pictures of his injuries, take statements
from witnesses or the people involved in the assault, or do
anything to secure evidence from the scene of the assault.
Id. at ¶¶ 73, 75. Usually these are
documented after fights at SDSP. Id. at ¶ 129.
dinner on February 1, 2015, inmate George Dominguez told
Brakeall that the gangs in East Hall wanted him out of East
Hall and that he would be attacked if he ever took
recreation. Id. at ¶ 100. That night, a nurse
came to Brakeall’s cell to deliver medication and told
him to go to health services the next day. Id. at
¶ 102. Brakeall told the correctional officer who
escorted the nurse about Dominguez’s threats.
Id. at ¶ 103. The correctional officer told
Brakeall to tell staff in the morning. Id.
next day, when Brakeall tried to go to health services, a
correctional officer in East Hall told him nobody needed to
see him in health services. Id. at ¶ 104. When
Brakeall told the correctional officers about the threats
against him, the officer put his hand on his handcuffs and
asked Brakeall, “Do you want to refuse housing?”
Id. at ¶ 105. Brakeall returned to his cell.
that day, Brakeall went to recreation. Id. at ¶
106. Allen was stationed at the gate, and Brakeall told him
about the most recent threats. Id. That day, there
were four correctional officers supervising over 200 inmates
and parolees in the recreation building. Id. at
¶ 107. Brakeall went to the walking track. Id.
at ¶ 108. There were no cameras or officers in the area.
Id. at ¶ 109. Dominguez approached Brakeall and
struck him in the throat with his forearm. Id. at
¶ 108. Brakeall went to the card room, found two
officers there, and told them that Dominguez had assaulted
him. Id. at ¶ 110. The officers told Brakeall
to wait at the gate. Id.
Brakeall went to the gate, Dominguez approached and began
circling Brakeall. Id. at ¶ 111. Officers
arrived at the gate, handcuffed Dominguez, and removed him
from the recreation building. Id. at ¶¶
111-12. After this, East Hall Case Manager Riley DeGroot
arrived to escort Brakeall back to East Hall. Id. at
¶ 113. DeGroot said he could see a lump and bruising on
Brakeall’s throat where Dominguez had struck him.
Id. Brakeall told DeGroot that Dominguez assaulted
him because Dominguez feared the gangs in East Hall more than
he feared the correctional officers, and as a result of the
assault, Dominguez would be transferred out of East Hall,
away from the gangs, without repercussion. Id. at
¶ 114. DeGroot returned Brakeall to East Hall without
bringing him to health services, taking statements from
witnesses, or taking photos of Brakeall’s injuries.
Id. at ¶¶ 115-16.
afternoon, Brakeall told Bieber about the assault and asked
Bieber to put him on loss-of-recreation shower until the
situation “cooled down” because being removed
from East Hall would mean Brakeall would receive a major
write up. Id. at ¶ 117. Bieber refused.
Id. at ¶ 118. When Brakeall pressed Bieber to
protect him, Bieber said he would “look into it.”
Id. Bieber has not spoken to Brakeall since that
day. Id. at ¶ 119. Brakeall spoke to Allen and
Vanderaa about bringing charges against the attackers, but
they said that the Division of Criminal Investigation (DCI)
would make those decisions, and they did not know anything
about it. Id. at ¶ 121.
told Winters about the assault and asked to be returned to
CTP. Id. at ¶ 120. In response, on February 12,
2016, Winters delivered a revocation of parole report to
Brakeall. Id. at ¶ 122. Apparently, Joshua
Kaufman, a sex offender treatment provider employed by Dakota
Psychological Services, had terminated Brakeall from
treatment forty-five days earlier on December 29, 2015.
Id. Winters said Smith had told her to issue the
revocation report. Id. According to Brakeall’s
complaint, there were no allegations that he had violated
parole or committed a crime and he had no serious
disciplinary infractions while at SDSP; the only things that
had happened since Winters told him they were scheduling a
polygraph were the assaults. Id. at ¶¶
alleges that he was under the Board’s authority when he
was on parole. Id. at ¶ 125. He was not an
inmate under the authority of the South Dakota Department of
Corrections (DOC). Id. Brakeall alleges that once
his parole was revoked, he became an inmate and the DOC
became responsible for his safety and liable for his
injuries. Id. at ¶ 127. Five days after
Brakeall was served with the parole revocation report, he was
transferred to West Hall in order to be housed with
“lower threat” inmates. Id. at ¶
April 26, 2016, Brakeall filed this complaint. Docket 1. He
alleges that defendants violated his rights under the Fifth,
Eighth, and Fourteenth Amendments by attacking him, failing
to protect him, failing to investigate the attacks or
prosecute the attackers, revoking his parole, housing him in
SDSP, terminating him from treatment, and failing to properly
staff SDSP. Id. at ¶¶ 133-38, 140-42. He
also claims that defendants failed to follow South Dakota
law. Id. at ¶ 139. Brakeall requests
declaratory and injunctive relief and damages from all
defendants. Docket 1.
moved to proceed in forma pauperis and provided his prisoner
trust account. Docket 3; Docket 4. The court granted his
motion provided he pay $100.70 as an initial partial filing
fee. Docket 7. On May 23, 2015, Brakeall sent a letter
explaining that the prison denied his attempt to use his
frozen account to pay his initial partial filing fee. Docket
10. Brakeall now moves the court to order the prison to allow
the use of his frozen funds to pay his initial partial fee.
Docket 11. On July 18, 2016, Brakeall moved to file a
supplemental complaint. Docket 13. In this supplemental
complaint, he alleges that Dooley, Young, and Ponto, as ...