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McPeek v. Kelsey

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

March 30, 2017

TRAVIS RAY MCPEEK, Plaintiff,
v.
BON HOMME COUNTY SHERIFF KELSEY; PENNINGTON COUNTY STEPHANIE BORN; NORTHWEST SHUTTLE, UNKNOWN AGENT; MARICOPA COUNTY SHERIFF, FABIO MORAN; UNKNOWN MARICOPA COUNTY ATTORNEY; UNKNOWN MESA POLICE; UNKNOWN APACHE COUNTY OFFICERS; MONTEZUMA COUNTY OFFICERS; SGT. BURK; UNKNOWN MALE NURSE; UNKNOWN LA PLATA COUNTY OFFICERS; UNKNOWN CASTLE ROCK OFFICERS; UNKNOWN BOULDER OFFICERS; UNKNOWN PENNINGTON COUNTY OFFICERS; SGT. MUNSCH; CPL. MUHLBEIER; YANKTON COUNTY SHERIFF JIM VALASKEZ; OFFICER HANES; SGT. CASS; JAIL ADMINISTRATOR PAYER; BON HOMME COUNTY OFFICER KELLY YOUNG; PROSECUTING ATTORNEY LISA ROTHSCHADL; UNKNOWN SOUTH DAKOTA TRANSPORT OFFICERS, Defendants.

          OPINION AND ORDER DISMISSING COMPLAINT IN PART AND DIRECTING SERVICE

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE

         Plaintiff Travis R. McPeek ("McPeek"), an inmate at the Yankton County Jail in Yankton, South Dakota, filed this lawsuit pursuant to 42 U.S.C. § 1983. Doc. 1. This Court screened his complaint pursuant to 28 U.S.C. § 1915A, and ordered McPeek to amend his complaint. Doc. 6. McPeek has now filed his amended complaint. Doc. 8. For the following reasons, the Court dismisses his complaint in part and directs service.

         I. FACTS ALLEGED IN THE COMPLAINT [1]

         On January 4, 2017, McPeek signed a "waiver of extradition" in Maricopa County, Arizona, with the alleged understanding that Bon Homme County, South Dakota would transport him. Doc. 8 at 4. McPeek alleges that he suffers from multiple medical issues. He alleges that he has myofascial and tissue damage from being struck by a truck and suffers from chronic pain from that injury as well as being shot multiple times. Id. at 9-10. He further suffers from mobility issues because of his injuries. Id. at 10.

         On January 12, 2017, McPeek was transferred from Maricopa County to Apache County Jail in St. John, Arizona. Id. at 9. He alleges that the Apache County officer who transported him was aware of his medical issues, but put him in a belly chain and handcuffs, which aggravated McPeek's prior injuries. Id. McPeek alleges that when he arrived at the Apache County Jail, he was strip searched in a degrading manner, including his genitals being touched. Id. He was denied medication and was sent through the booking process. Id. at 10-11. He was chained in a similar manner the next day and transported to Gallop, New Mexico. Id. at 11. He was taken to Montezuma County Jail in Cortez, Colorado, then La Plata County Jail Colorado. Id. at 11-12. He was chained during transport and searched once he arrived at these jails. Id.

         In La Plata, McPeek alleges that officers were aware of his medical issues. Id. at 12. He was given permission to use a bottom bunk, but it was taken away after McPeek requested to move to another cell because his cell mate was mad at him. Id. at 12-13. McPeek grieved these issues and felt that he was discriminated against during the procedure for his disability and because he had filed complaints. Id. at 14-15.

         Later, Sgt. Burke searched McPeek roughly, including "karate chopping" his testicles. Id. at 15. Burke then put McPeek in segregation. Id. McPeek asked him why, but he did not respond. Id. McPeek complained that he was put in segregation, that he was searched roughly, and that he was denied a bible, grievances, and toilet paper, but never received a response. Id. at 15-16.

         On January 17, 2017, McPeek was transported to Pennington County Jail in South Dakota, via Alamosa County, Colorado; Colorado Springs, Colorado; Pueblo, Colorado; Jefferson County, Colorado; Boulder, Colorado; Cheyanne, Wyoming; Lusk, Wyoming; and Rushville, Nebraska. Id. at 17-20. In these jails, he was roughly searched and booked. Id.

         While in Pennington County Jail, McPeek filed a grievance arguing that his transfer was illegal. Id. at 20. Sgt. Munsch responded that the issue was non-greivable. Id. He also filed a grievance concerning admittance into the "Rebound Program, " and was told he was ineligible because he was on a hold through the federal government or South Dakota Department of Corrections. Id. at 21. At Pennington County Jail, he was also denied medical treatment. Id. at 22.

         On January 26, 2017, McPeek was transferred to Yankton County Jail on the South Dakota Prison Bus. Id. At Yankton, McPeek alleges he was searched by Officer Hanes in a degrading manner, including having his penis and butt touched. Id. at 22-23. He was placed in segregation in the jail even though he had no disciplinary problems. Id. at 23. McPeek alleges he was denied his medications by Sgt. Cass for five weeks. Id. He also alleges that he filed a number of grievances about different incidences, but they were denied by Payer, the Jail Administrator. Id. at 23-24.

         At the end of his complaint, McPeek also makes a number of unrelated allegations concerning an incident in 2016. He alleges that Bon Homme County Officer Kelly Young conducted an illegal search of his vehicle and attacked him without reason. Id. at 25. He also claims that Young claimed McPeek ran him over, but McPeek denies this. Id. at 27. Finally, McPeek claims that these allegations were in the news and destroyed his reputation. Id.

         II. PROCEDURAL BACKGROUND

         On February 8, 2017, McPeek filed a complaint pursuant to 42 U.S.C. § 1983. Doc. 1. Because McPeek is incarcerated, this Court screened his complaint pursuant to 28 U.S.C. § 1915A. This Court ordered McPeek to amend his complaint by April 3, 2017, because he had failed to state a claim upon which relief could be granted. Doc. 6. McPeek timely filed an amended complaint. Doc. 8.

         III. LEGAL STANDARD

         At this stage of the case, this 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." BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "If a plaintiff cannot make the requisite showing, dismissal is ...


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