United States District Court, D. South Dakota, Southern Division
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
E. SCHREIER UNITED STATES DISTRICT JUDGE
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.
the evidence in the light most favorable to Brakeall, as the
non-moving party, the facts are:
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
later told Brakeall that SDSP was operating with nine fewer
officers than were required on February 1, 2016. Id.
¶ 53. He also learned that the staff member responsible
for monitoring the video feed in the ...