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Brakeall v. Kaemingk

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

February 23, 2018

WINSTON GREY BRAKEALL, Plaintiff,
v.
DENNIS KAEMINGK, SECRETARY OF CORRECTION FOR THE STATE OF SOUTH DAKOTA; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; ROBERT DOOLEY, CHIEF WARDEN FOR THE SOUTH DAKOTA DEPARTMENT OF CORRECTIONS; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; DARIN YOUNG, WARDEN AT SDSP; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; DERRICK BIEBER, UNIT MANAGER AT SDSP; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; TIM MEIROSE, UNIT MANAGER AT SDSP; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; WILLIAM ALLEN, CORRECTIONAL OFFICER WITH THE RANK OF CORPORAL AT SDSP; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; AND UNKNOWN DEPARTMENT OF CORRECTIONS EMPLOYEES, SDDOC EMPLOYEES EMPLOYED AT SDSP, JPA, AND/OR UNIT C IN SIOUX FALLS, SOUTH DAKOTA; IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES; Defendants.

          ORDER DENYING MOTION FOR SUMMARY JUDGMENT

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         Plaintiff, Winston Grey Brakeall, filed this lawsuit under 42 U.S.C. § 1983. Docket 1. The court stayed discovery until the court determines the issue of qualified immunity. Docket 57. Defendants now move for summary judgment based on qualified immunity. Docket 67. Brakeall opposes the motion. Docket 96.

         FACTUAL BACKGROUND[1]

         Viewing the evidence in the light most favorable to Brakeall, as the non-moving party, the facts are:

         On November 4, 2014, Brakeall was taken into custody on a warrant from the South Dakota Board of Pardons and Paroles (the Board). Docket 40 ¶ 16. On December 11, 2014, Brakeall was transferred to East Hall at the Jameson Prison Annex (JPA) in the South Dakota State Penitentiary (SDSP). Id. ¶ 18. After arriving at JPA, Brakeall told the admitting officer that he would not be safe in the general population in East Hall. Id. ¶ 18. Brakeall then spoke to Unit Manager Tim Meirose and Brakeall informed Meirose that he would be at risk in the general population in East Hall. Id. ¶¶ 20-21. Meirose told Brakeall no other cells were available and offered him the options of accepting the assigned cell or going to the special housing unit (SHU) for refusing housing, a major rule violation. Id. ¶ 22. In order to protect the possibility of parole, Brakeall accepted his housing assignment in East Hall. Id. ¶ 23.

         As Brakeall got ready for breakfast the next morning, he heard other prisoners call him “Chomzilla, ” a sobriquet derived from “child molester, ” which references Brakeall's underlying conviction, and “Godzilla, ” which references Brakeall's immense size (Brakeall is 6' 9”, 330 pounds). Docket 1 ¶¶ 29, 54. This was an insult used against Brakeall during the sixteen years when he was previously incarcerated at SDSP. Id. ¶ 29. After breakfast, Brakeall was confronted by his cellmate, a gang member. Id. ¶ 30. The cellmate said he had been ordered to assault Brakeall, but had refused the order to save his parole eligibility. Id. Later, Brakeall's cellmate was beaten by the gang for refusing to assault him. Id. ¶ 33. Brakeall told prison staff about the threats against him, but nothing was done. Id. ¶ 31. Brakeall did not want to cause trouble because he also wanted to save his parole eligibility. Id. At the time, he was still awaiting his parole revocation hearing. Id. ¶ 34. Brakeall's cellmate told him that other prisoners were spreading rumors about him, saying he had been re-incarcerated because he had committed another sex offense. Id. ¶ 32. The cellmate claimed the rumors were spread to encourage prisoners to assault Brakeall. Id.

         On December 13, 2014, Brakeall was assaulted in the SDSP dining hall. Id. ¶ 23. After the assault, while being evaluated by health services, an unknown correctional officer gave Brakeall three options: he could go back to his cell, he could refuse housing, or he could ask for protective custody in the SHU. Id. ¶ 24. The officer told Brakeall that seeking protective custody “gives you kind of a reputation as a punk.” Id. Thus, Brakeall returned to his cell. Id.

         Brakeall claims there is no true protective custody in the South Dakota Department of Corrections (DOC). Id. To move into protective custody, an inmate must be willing and able to identify the threatening individuals. Docket 94 ¶ 22; see also Docket 78 ¶ 32. Brakeall did not know the identities of the threatening individuals. Docket 94 ¶ 29. Brakeall had not yet spent enough time at SDSP to know or identify any of the gang members who were threatening him. Id. ¶ 31.

         Defendants aver that SDSP has an Operational Memorandum in place to protect inmates that believe they are in danger. Docket 78 ¶ 12. Defendants state, “If an inmate believes he is in danger he must notify a staff member who will immediately notify the officer in charge. The inmate can make this request without fear of being written up for a rule violation.” Id. ¶ 13. Brakeall also points out a provision in the memorandum that reads, “If staff becomes aware of an inmate's need for protection, even though not requested, the same procedure for requested protective custody apply.” Docket 94 ¶ 12. Brakeall acknowledges that the memorandum was in place but claims the staff was inadequately trained to implement it. Id.

         After the December 13, 2014 assault, the assailant told the unknown correctional officer that the threat against Brakeall from gangs in East Hall was severe. Docket 40 ¶ 25. The officer then sent Brakeall to West Hall for his protection. Id. ¶ 26. Despite the DOC policy requiring an incident report, no photographs of Brakeall's injuries or statements were taken by prison staff, and no incident report was made. Id. ¶ 27. Defendants aver that the assailants are still unknown. Docket 68 at 11.

         On December 14, 2014, Brakeall's arrest warrant was dropped, and he was placed on parole. Docket 1 ¶ 42. Two days later, he was transferred to the Unit C Trustee facility in the Community Transition Program (CTP). Id. Starting in January 2015, Brakeall was given time off the unit for treatment, but otherwise confined at the prison. Id. ¶ 43.

         In April 2015, Brakeall was arrested and placed on a ninety day administrative detainer for failing a polygraph test. Docket 40 ¶ 28. There was no evidence or allegations of any criminal activity. Id. For most of April 2015, Brakeall was held in JPA. Id. ¶ 29. He was threatened by other inmates and his belongings were stolen. Id. Again he told prison staff what was happening, but they did nothing. Id.

         Brakeall was later returned to the CTP program. Id. ¶ 30. But on December 1, 2015, Brakeall was arrested again for failing a polygraph test. Id. He was placed on administrative detainer and moved to general population in JPA. Id. The next day, he was transferred to East Hall. Id. ¶ 31. Brakeall warned several members of prison staff, including Unit Manager Derrick Bieber, that he was in danger. Id. ¶ 32. Bieber was aware that Brakeall had been previously assaulted in the East Hall shower in 2002. Docket 94 ¶ 27. Brakeall again was given the option of accepting his cell in East Hall or being written up and sent to the SHU. Docket 40 ¶ 32. In order to save his parole eligibility, he chose the former. Id.

         On December 14, 2015, Parole Agent Aileen Winters came to Brakeall's cell and told him that she and J.C. Smith, her supervisor in the parole department, planned to have Brakeall stay in SDSP for 90 days, take a polygraph, and if he passed, he would be paroled back to CTP. Id. ¶ 33. Brakeall informed Winters that he had previously been assaulted in East Hall and had been threatened. Id.¶ 34. Winters told Brakeall to speak with unit staff. Id. When Brakeall informed Winters that he had already spoken to unit staff, Winters told him to figure it out. Id. ¶¶ 34, 35.

         In January 2016, two inmates told Brakeall that the gangs in East Hall warned them not to associate with Brakeall and that the gangs were going to assault Brakeall or extort protection money from him. Id. ¶ 36. They explained that because of Brakeall's size and the fact that he would not fight back in order to protect his parole eligibility, other prisoners planned to attack him to “make their bones” without fear that he would fight back. Id. ¶ 37.

         Brakeall told Bieber about the threats and Bieber said he would “look into it.” Id. ¶ 38. When Brakeall told other correctional officers about the threats, they told him that without the names of inmates who were going to attack him, they could do nothing to protect him. Id. ¶ 39.

         On February 1, 2016, Brakeall was assaulted again. Id. ¶¶ 43, 45. He was in the recreation building, playing cards with another inmate when he was struck from behind and knocked to the floor. Id. ¶ 41. There were no correctional officers in the card room. Id. ¶ 44. Brakeall believes that he was beaten by three inmates for at least one minute, where the assailants punched and kicked him in the head, back, and torso. Id. ¶¶ 44, 45. Defendants contend that video footage shows that two inmates assaulted Brakeall and the attack lasted seventeen seconds. Docket 78 ¶54. The attack did not stop until the assailants left on their own accord. Docket 40 ¶ 47. By the time the assault ended, Brakeall was bleeding profusely from his nose and head, and a fellow inmate worried that Brakeall's skull had been fractured. Id. ¶¶ 47, 49.

         After the assault, Brakeall recovered his broken glasses and saw that no correctional officers or staff were present. Id. ¶¶ 49, 50. Brakeall, covered in blood and still bleeding, found a correctional officer and told him about the attack. Id. ¶ 54. The officer called for an escort to take Brakeall to health services. Id. ¶ 55. After several minutes, Lieutenant Ryan Vanderaa escorted Brakeall to health services. Id. Brakeall told Vanderaa that he wanted the attackers to be criminally charged because he was a parolee on an administrative detainer, not an inmate. Id. ¶ 57. Vanderaa said that the attackers would be charged and that pictures of Brakeall's wound and statements about the attack would be taken. Id.

         Health services bandaged Brakeall's wounds. Id. ¶ 58. His injuries included:

[A] deep trauma nose bleed; right temple laceration; left temple abrasion; extensive bruising and swelling of the left ear; extensive bruising to both forearms; abrasions on his right elbow; “goose eggs, ” pain and swelling at impact points across both temples, across the back and crown of his skull, at the base of the skull where the spine enters; muscular trauma to the neck, jaw, and torso; and bruising which reached Plaintiffs lower back.

Id. ¶ 48. While being seen by health services, Brakeall complained of dizziness and nearly fell over multiple times. Id. ¶ 58. No photos or statements were taken. Id. ¶ 59.

         After Brakeall was seen by health services, Vanderaa handcuffed him and brought him to the SHU for investigative purposes. Id. ¶ 60. When they got to the SHU, Vanderaa was told that the inmates who attacked Brakeall were being taken to the SHU, so Vanderaa took Brakeall to the SHU main gate and put him in a holding cell. Id. ¶¶ 61-63. Brakeall was still bleeding and asked prison staff for help, but they did nothing. Id. ¶ 64. Forty minutes later, SHU Case Manager Lana Jackson came to the holding cell and told Brakeall that he was going back to East Hall. Id. ¶ 66. When Jackson saw that Brakeall was still bleeding, she took him to health services. Id. ¶ 67.

         After leaving health services, Brakeall dressed and went to lunch. Id. ¶ 71. His nose started bleeding again and correctional officer J. Zoss ordered him to eat by himself to avoid contamination. Id. ¶ 72. Because he was still bleeding, Brakeall abandoned his lunch. Id. Brakeall was taken to health services in order to go to the emergency room at the Avera trauma center. Id. ¶ 73. He was escorted by correctional officers William Allen and Zoss. Id.

         According to Brakeall, Allen and Zoss told the medical staff that the video from the recreation building showed that three inmates attacked Brakeall at 8:13 a.m. Id. ¶ 74. After numerous attempts, the doctor stopped Brakeall's nose bleed. Id. ¶ 80. The doctor ordered a CAT scan because Brakeall could not remember whether he was hit in the face, but the scan showed no fractures or internal hemorrhages. Id. ¶¶ 81, 89.

         While they waited for the results of the scan, Allen and Zoss discussed overtime work at the prison. Id. ¶ 82. Defendants dispute that staffing issues were discussed in the presence of inmates. Docket 78 ¶ 39. Allen said he expected to do over twenty hours of overtime that week. Id. ¶ 83. Both officers complained that supervisory personnel, Dennis Kaemingk, Robert Dooley, and Darin Young, were aware of the staffing deficiencies but were unwilling to correct the problems. Id. ¶ 85.

         Allen and Zoss also discussed the “stealing” of correctional officers from recreation when an officer was needed to transport an inmate. Id. ¶ 84. The correctional officers stated that the group assigned to the recreation building would not have been enough even before some were “stolen.” Id.

         Inmates later told Brakeall that SDSP was operating with nine fewer officers than were required on February 1, 2016. Id. ΒΆ 53. He also learned that the staff member responsible for monitoring the video feed in the ...


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