United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION TO SUPPLEMENT, GRANTING MOTION
FOR LEAVE TO FILE AN AMENDED COMPLAINT, DENYING MOTION FOR
RECUSAL, DISMISSING COMPLAINT IN PART, AND DIRECTING
E. SCHREIER UNITED STATES DISTRICT JUDGE
Bruce Edgar Smith, 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. Docket 1. Smith
now moves to amend and supplement his complaint. Docket 30;
Docket 59; Docket 62. He also moves for recusal. Docket 63.
For the reasons below, the court grants Smith's motion to
amend and supplement his complaint, denies his motion for
recusal, screens his complaint under 28 U.S.C. § 1915A,
dismisses the complaint in part, and directs service.
facts as alleged in the complaint are:
incarceration began in 1998, and since then, he has only been
written up for minor infractions. Docket 1 at 23. He has
suffered from bipolar disorder his whole life. Id.
at 43. On August 18, 2013, Smith started an argument with his
cellmate, and his cellmate punched him in the face.
Id. at 23. Smith did not want to fight, so he
grabbed his cellmate's wrists and pushed the button in
his cell to call a guard. Id. Correctional Officers
Jess Boysen and Justin Kuku responded. Id. They took
Smith's cellmate away. Id. Smith discussed what
had happened with Kuku, and they decided Smith should go to
the West Hall holding cell and then receive medical
Smith and Kuku began walking down the hallway, Boysen and
Sgt. Kurtis Brown ran up to them and stopped. Id. at
24. Brown said that Smith had been in a fight, and he had to
go to the Segregated Housing Unit (SHU). Id. Brown
ordered Smith to turn around to be handcuffed. Id.
Smith explained to Brown that he had not been in a fight, but
been attacked, and that he and Kuku were going to health
services. Id. Brown again ordered Smith to turn
around. Id. Smith refused. Id.
point, Brown sprayed Smith with mace. Id. at 25. He
used the whole can and sprayed Smith's head and entire
torso. Id. Smith did not move; he only cried.
Id. Brown ordered Boysen and Kuku to tackle Smith,
which they did, pinning him to the ground. Id.
Eventually, they got Smith up, and Kuku brought him to the
West Hall holding cell. Id. at 26. Smith stayed in
the cell for three hours without being treated for his
various injuries or being decontaminated after being sprayed
with mace. Id.
Smith was taken to nurse Lonna Vink, he told her that his
nose was broken, that his left ankle hurt and he could not
walk, and that he had not been decontaminated. Id.
at 8; Docket 59 at 2. She told Kuku that Smith was okay and
could be taken to the SHU. Docket 1 at 8. There, he was
finally decontaminated. Id. A nurse came and got
blood samples from Smith to test against the blood on the
correctional officers' shirts. Id. at 27. Brown
came to the SHU, took pictures of Smith, and thanked Smith
for getting him a new shirt. Id. Smith could not
sleep because his nose was still bleeding and he was still in
pain. Id. at 8, 27. Prison officials would not give
him pain medications. Id. The next morning Unit
Manager Keith Ditmenson denied Smith's request for sick
call and wrote him up for fighting another inmate.
Id. at 8, 27.
being in the SHU for five days, requesting medical care each
day, Smith saw a nurse. Id. at 9. The nurse ordered
x-rays of Smith's nose for that day and x-rays of his
ankles for the next day. Id. On December 24, 2013,
Smith was brought in to see Dr. Eugene Regier and Head Nurse
Heather Bowers. Id. After looking at the x-rays of
his nose, Dr. Regier told Smith that his nose was broken.
Id. The ankle x-rays had been lost, and Dr. Regier
told Bowers to reorder them. Id.
ninety days, Smith was released from the SHU and saw Dr.
Regier. Id. at 10. Dr. Regier told Bowers to set up
an appointment for Smith with an Eyes, Ears, and Nose
specialist. Id. Smith told Dr. Regier that his ankle
had not been x-rayed and that he could barely walk on that
ankle. Id. Dr. Regier said they would take one thing
at a time. Id. He also gave Smith cortisone
injections in his left knee, left shoulder, and left hip.
Smith went to specialist Dr. Marc Ellwein, Dr. Ellwein
ordered that Smith's nose be reset, but the prison health
services would not authorize the procedure because they
declared it “nonemergent.” Id. at 11.
After a number of visits, Dr. Ellwein decided Smith needed
surgery. On September 5, 2013, Dr. Ellwein wrote to Dr.
Regier, telling him that Smith had a deviated nasal septum,
that it was a medical emergency, and that Smith was a
surgical candidate. Id. at 13. Dr. Mary Carpenter,
however, denied Smith the treatment. Id.
December, Smith again saw Dr. Regier concerning his deviated
septum. Id. Smith was sent back to Dr. Ellwein, who
recommended surgery again. Id. at 13-14. On January
27, 2014, Smith saw a Dr. Todd, who recommended surgery right
away. Id. at 14. Dr. Regier requested authorization
for surgery, but Dr. Carpenter denied the request.
Id. at 15.
this time, Smith was having similar problems with his ankle
treatment. He repeatedly told medical providers at the prison
that he was suffering, but he did not receive what he
believes was adequate treatment. Smith saw Dr. Watts from
CORE Orthopedics on July 2, 2015, and Dr. Watts recommended
surgery for Smith's left ankle. Id. at 21. This
was denied by Dr. Carpenter. Id. In October,
however, Smith had surgery on his ankle. Docket 1-1 at 14.
after Smith was attacked by both his cellmate and the
correctional officers, Ditmenson came to the SHU and told
Smith he was writing him up for fighting another inmate.
Docket 1 at 27. Smith was also written up for spitting blood
at Brown. Id. at 29. The fighting write-up was
dropped, but Smith was charged with a felony for spitting
blood at Brown. Id. at 28, 34. Smith alleges that he
was not allowed to take his spitting charge before a
Disciplinary Hearing Officer. Id. at 33. Ditmenson
said that Smith had waived his right to the hearing, but
Smith does not believe he did. Id.
March 23 and 24, 2015, Smith was tried for spitting on Brown.
Id. at 35. During the trial, both Kuku and Boysen
testified that Smith did not spit on Brown. Id.
Smith was acquitted by the jury. Id. at 36. The
judge ordered the prison to drop the spitting write-up and
put Smith back in medium custody instead of maximum custody,
where he had been since he was attacked. Id. at 37.
Smith has tried to get the prison to drop the write-ups, but
they will not. Id. He has asked the judge in his
criminal trial, Associate Warden Allcock, Associate Warden
Troy Ponto, and his public defender for help, but to no
October 2013, Smith was moved to a different tier in the
prison and placed by the medical department on a medical
shower order that he not use the stairs to get to the shower.
Id. He was given numerous no-stair orders.
Id. at 38. Bowers and Dr. Carpenter did not think
Smith needed to use the medical showers, so they told his
Unit Manager to force him to use the regular showers.
Id. In June 2014, Dr. Regier ordered Bowers to tell
Smith's unit manager to stop making Smith use the stairs,
which she reluctantly did. Id. at 39. Smith was not
given access to the medical showers for another 3 weeks.
alleges that he has had bipolar disorder his whole life, and
has what he calls “highs” and “lows”
that are uncontrollable and intense. Id. at 43. He
has been given a number of different medicines to treat his
disorder while in prison. Id. The only one that
helped was Seroquel. Id. In December 2014, Smith was
taken off Seroquel by Dr. Carpenter because it was too
expensive, even though he was stable while on the drug.
Id. at 43-44.
started working in West Hall, where Smith is housed, in
January of 2015. Docket 1-1 at 1. Even though Smith had a
no-stair order, Steineke would not allow him to have
recreation time on the tier or use the medical showers.
Id. In both instances, Smith had to use the stairs.
Id. When Smith had to wear a cast after surgery,
Steineke refused to give the orderly tape so Smith's cast
could be taped for showers, and Smith had to get it from
another prison official. Id.
read and interfered with Smith's legal mail. Id.
at 2-3. If the inmates, including Smith, wrote things she
does not approve of, Steineke challenged them. Id.
at 3. In June of 2015, Smith gave Steineke a motion to mail
to the court, but it was never sent. Id. Steineke
told Smith that she sent it to the mail office, but the mail
office said they did not receive it. Id. at 4.
did not like that inmates received indigent commissary and
told them she did not like it. Id. at 5. Steineke
started telling inmates that their medical orders had expired
or were not in the computer, so they could not receive their
commissary items. Id. at 6. When Smith went to check
with health services, he learned that his orders were there;
they had just been denied by Steineke. Id. Steineke
did this with dental commissary items until she was told to
stop by the dental department. Id.
a doctor's visit, Smith asked Dr. Watts to request the
prison to order him work boots for his ankle. Id. at
11. Dr. Watts did this, and Smith was supposed to get the
boots in July or August. Id. On July 22, Smith asked
Bowers about the boots, but Bowers said she did not believe
he needed them and that Steineke would not give them to him.
Id. at 12. Smith then asked Dr. Regier about the
boots. Id. Dr. Regier told Bowers to order the
boots, but she did not. Id. at 12-13. Steineke told
Smith he was not going to get the boots. Id. at 13.
Ditmenson told Smith he would get the boots if Smith had a
medical order. Id. A nurse told Smith she could not
order the boots for him because of Bowers. Id.
after Smith had surgery on his ankle, he asked Dr. Regier
about his boots. Id. at 14. Two months later,
Ditmenson got Smith's boots, and even though Steineke
refused to give them to Smith at first, eventually, Ditmenson
gave them to Smith. Id. at 15. In total, it took six
months for Smith to receive his boots. Id.
November 2015, Smith ripped the sole of his shoe.
Id. When he told Steineke, she told him to fill out
a kite and give it to her. Id. at 16. He did, and
when she did not respond to the kite, he wrote another one
and put it in her mailbox. Id. He told Warden Robert
Dooley about his shoe, and Dooley told him to tell Ditmenson.
Id. When he told Ditmenson, Ditmenson told him to
fill out another kite. Id. He filled out two more
kites and gave them to Steineke. Id.
final kite, Smith alleged that he had turned in many kites.
Id. at 16-17. Steineke called Smith into her office
and told him to prove that he had turned in all those kites.
Id. She then called him a liar and told him to go to
hell. Id. at 17.
next day, Smith gave another kite to the East Hall
Coordinator. Id. When Smith was able to bring his
grievance before prison officials, they agreed with him and
told him he was entitled to a new pair of shoes. Id.
When he showed Steineke the grievance, she attempted to take
it and then told Smith he was never getting the new shoes.
Id. at 17-18.
December 10, 2015, Smith asked a prison official for help.
Id. at 18. The official told Smith he would get the
shoes. Id. The official talked with Steineke about
the shoes, but afterwards, he told Smith that she would not
give him the shoes. Id.
all of these issues with Steineke, Smith had difficulties
with his grievances. As explained above, Steineke would not
accept grievances concerning certain things. Steineke and
Ditmenson also convinced other prison officials to refuse to
accept his grievances. Id. at 9. Two coordinators in
East Hall and a case worker refused Smith's grievances,
apparently at the behest of Ditmenson and Steineke.
Id. at 9, 10, 17.
January 25, 2016, Smith filed his complaint under §
1983. Docket 1. His complaint is split into two parts and is
eighty-six pages long. Docket 1; Docket 1-1. Along with his
complaint, he filed 286 pages of attachments. Docket
1-2-1-10. The court stayed Smith's case because he had
filed the same case in state court. Docket 14. The court
ordered Smith to file notice when the state court case had
ended. Id. Despite this, Smith continued to file
motions, supplements, and letters, many with multiple
attachments. Altogether, this constituted nearly
seven-hundred pages of filings. The docket as a whole
constitutes over 1, 000 pages.
January 5, 2017, Smith provided documentation showing that
the state court proceeding was dismissed. Docket 48-1.
Because Smith is incarcerated, his complaint must be screened
under 28 U.S.C. § 1915A. Before he showed that the state
court case had ended, however, Smith filed numerous motions
to amend his complaint. It was unclear what constituted his
complaint. Therefore, the court ordered Smith to either
notify the court that he wished his proposed amended
complaint (Docket 30-1) to constitute his complaint or file a
new amended complaint. Docket 53. On February 3, 2017, Smith
filed a letter stating that he wished Docket 30-1 to
constitute his amended complaint. Docket 61 at 3.
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).
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).
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).
Motion to Supplement
moves to amend his complaint. Docket 30. He has partially
satisfied Local Rule 15.1 as the court ordered, Docket 26,
and provided a proposed amended complaint. See
Docket 30-1. In his proposed amended complaint, Smith
discusses a number of claims, most of which are not in his
original complaint. Further, he refers to his original
complaint as if the proposed amended complaint is intended to
supplement, rather than replace, his original complaint.
Therefore, the court treats it as a motion to supplement his