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Brakeall v. Kaemingk

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

July 26, 2016





         Plaintiff, 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 directs service.


         According 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 JPA. Id.

         As 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 ¶ 29.

         After 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.

         On 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 Hall. Id.

         When he 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.

         After 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.

         On 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.

         In 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.

         Brakeall’s 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.

         Under 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.

         On 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.

         On 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.

         Brakeall 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.

         On 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.

         After 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.

         Health 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.

         After 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.

         After 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 Zoss. Id.

         Allen 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.

         While 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.

         When 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.

         After 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.

         The 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. Id.

         Later 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.

         When 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.

         That 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.

         Brakeall 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 ¶¶ 122-24.

         Brakeall 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 ¶ 128.

         On 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.

         Brakeall 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 ...

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