United States District Court, D. South Dakota, Southern Division
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
E. SCHREIER UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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
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.
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
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
Screening Under § 1915A