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Vice v. Kaemingk

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

December 15, 2016

DERECK VICE, Plaintiff,
v.
DENNIS KAEMINGK, Secretary of Department of corrections; DARRIN YOUNG, Warden, South Dakota State Penitentiary; BOB DOOLEY, Director of Prison Operations and Warden of Mike Durfee State Prison; ANGELA STIENKE, Coordinator West Hall; KEITH DITMANSON, West Hall Unit Manager; DOCTOR EUGENE REIGER, SDSP Medical Department; JESSICA STEVENS, Charge nurse, SDSP Department of Health; TROY PONTO, Associate Warden, Supervisor of Medical Services; DR. MARY CARPENTER; LT. FITZU; C/O BOYSEN; C/O ROBERT KIRVIN; PA TAMMY; and DR. JOE HANVEY Defendants.

          ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION, DENYING MOTION TO APPOINT COUNSEL, DENYING MOTION TO EXTEND DEADLINE, DENYING MOTION FOR TEMPORARY RESTRAINING ORDER, DENYING MOTION TO COMPEL, DISMISSING COMPLAINT IN PART, AND DIRECTING SERVICE

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Plaintiff, Dereck Vice, is an inmate at the South Dakota State Penitentiary in Sioux Falls. Plaintiff filed an amended complaint and moves for a temporary restraining order and requests that the court appoint him counsel. For the following reasons, the court denies Vice's motions, dismisses his complaint in part, and directs service.

         FACTUAL BACKGROUND

         According to Vice's complaint, Vice is disabled and has been classified as disabled for a long time. Docket 1 at 1-2. At one point he had access to a wheelchair and a cane in prison because of his medical conditions. Id. at 2. He has a life threatening disorder for which he uses a “CPAP” machine. Id.

         Vice has had many tests on and evaluations of his back at CORE Orthopedics, including a CT scan and an MRI. Id. An outside specialist recommended that he have surgery, but when defendants submitted a request for this surgery to the South Dakota Department of Health, it was denied. Id. Vice grieved this issue through the prison grievance system, but was denied relief. Id.

         Vice alleges that he is immobile as a result of defendants' refusal to authorize necessary surgery and the use of a wheelchair. Docket 10 at 2. He cannot attend church services, meals, or recreation time, and he cannot use the law library or showers. Id. On October 15, 2016, he suffered another fall that made his injuries worse. Docket 13 at 2. He is not receiving any medical treatment. Id.

         On September 6, 2016, Vice filed a complaint. Docket 1. He did not raise distinct claims but mentioned the issues outlined above. Vice moved the court to issue a temporary restraining order “to stop Haraaament [sic] and Retaliation and Order the surgery that was approved to proceed.” Id. at 3.

         The court found that Vice had failed to state a claim upon which relief could be granted and ordered him to amend his complaint or it would be dismissed. Docket 8. Vice then filed a motion for injunction, a motion to appoint counsel, and an amended complaint. Docket 9; Docket 10; Docket 13. In his amended complaint, Vice again requests that the court enter a temporary restraining order and appoint him counsel. Docket 13.

         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); 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); Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). Under 28 U.S.C. § 1915A, the court must screen prisoner complaints and dismiss them if they are “(1) frivolous, malicious, or fail[] to state a claim upon which relief may be granted; or (2) seek[] monetary relief from a defendant who is immune from such relief.” 1915A(b).

         DISCUSSION

         In both his original and amended complaints, Vice alleges that defendants violated his rights under the Eighth Amendment, the Americans with Disabilities Act (ADA), and the Rehabilitation Act (RA). Docket 1; Docket 9; Docket 13. He also moves for a temporary restraining order and requests that the court appoint counsel. Docket 9; Docket 10; Docket 13.

         I. Screening Under § 1915A

         A. ...


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