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Smith v. Young

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

March 3, 2017

BRUCE EDGAR SMITH, Plaintiff,
v.
DARIN YOUNG, South Dakota State Warden, individual and official capacity; BOB DOOLEY, South Dakota State Warden, individual and official capacity; SGT. KURTIS BROWN, Correctional Officer, individual and official capacity; JESS BOYSEN, Correctional Officer, individual and official capacity; JUSTIN KUKU, Correctional Officer; ANGELA STEINEKE, Coordinator of West Hall; KEITH DITMENSON, Unit Manager, West Hall; JUDGE JOHN PEKAS, Minnehaha County Circuit Judge; TROY PONTO, Associate Warden; MARTY JACKLEY, Attorney General; EUGENE REGIER, Head doctor of Health Service; HEATHER BOWERS, Head nurse of Health Service; KATIE DUNN, Attorney at Law; JUDGE ROBIN J. HOUWMAN, State of South Dakota Minnehaha County Circuit Court Judge; DOUGLAS P. BARNETT, State Assistant Attorney General; DAVID WATTS, Core Orthopedics Avera; DR. TODD, Midwest ENT; MARC ELLWEIN, Midwest ENT; MARY CARPENTER, Head Doctor for Health Care, LONNA VINK, Nurse Health Services; DENNY KAEMINGK, Secretary of Corrections; DAVID LENSCH, Unit Manager; WILLIAM H. GOLDEN, Assistant Attorney General; DAVID STEPHAN, DCI, Division Of Criminal Investigation; Defendants.

          ORDER GRANTING MOTION TO SUPPLEMENT, GRANTING MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT, DENYING MOTION FOR RECUSAL, DISMISSING COMPLAINT IN PART, AND DIRECTING SERVICE

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Plaintiff, 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.

         FACTUAL BACKGROUND[1]

         The facts as alleged in the complaint are:

         The Incident

         Smith's 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 attention. Id.

         When 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.

         At this 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.

         When 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.

         Medical Care

         After 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.

         After 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. Id.

         When 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.

         In 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.

         During 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.

         Discipline

         The day 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.

         On 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 avail. Id.

         Stair Order

         In 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. Id.

         Seroquel

         Smith 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.

         Coordinator Angela Steineke

         Steineke 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.

         Steineke 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.

         Steineke 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.

         During 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.

         The day 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.

         In 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.

         In his 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.

         The 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.

         On 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.

         Throughout 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.

         PROCEDURAL BACKGROUND

         On 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.

         On 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.

         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

         I. Motion to Supplement

         Smith 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 complaint.

         A. ...


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