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McPeek v. Unknown Pennington County Officers

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

July 2, 2018

TRAVIS R. MCPEEK, Plaintiff,



         Plaintiff Travis R. McPeek (McPeek), an inmate in state custody, brought this suit alleging that various prison and prisoner transport service employees violated his civil rights under 42 U.S.C. § 1983. Doc. 1 at 2. Pursuant to 28 U.S.C. § 1915A, this Court screened McPeek's initial complaint and granted him leave to amend it. Doc. 6. This Court then dismissed certain defendants and claims in his amended complaint, leaving only Unknown Pennington County Officers, Cassondra Rabe (Rabe), and Mark Payer (Payer) as defendants. Doc. 9. This Court dismissed all but two of the eight claims in McPeek's amended complaint, leaving claims that McPeek was denied adequate medical care in South Dakota in violation of his constitutional rights and that his Fifth and Eighth Amendment rights were violated when he was put in administrative segregation in the Yankton County Jail. Doc. 9 at 12.

         Defendants moved for summary judgment, Doc. 41; Doc. 42, and McPeek filed a separate motion for leave to amend his complaint, Doc. 57. As was required of him by Local Rule 56.1, McPeek responded to the defendants' statements of undisputed material facts which accompanied their motions for summary judgment, making clear that he disputed the summary judgment motion. D.S.D. Civ. LR 56.1(B); Doc. 64; Doc. 65. However, McPeek did not file a response brief raising legal arguments in opposition to the defendants' motions for summary judgment within 21 days of service of their motions. D.S.D. Civ. LR 7.1(B). Instead, McPeek styled his proposed amended complaint as an affidavit and attached various documents to it, Doc. 57-1, and filed separate affidavits of himself, Ronnie Young, and Robert Little to contest certain matters in the summary judgment motions, Docs. 58, 59, 60. McPeek, who is a pro se inmate, also filed a "statement" regarding his lack of legal sophistication and access to legal resources. Doc. 66. Defendants Payer and Rabe then moved for entry of an order declaring McPeek in default for failing to file a brief opposing their motion for summary judgment. Doc. 68. Defendant Unknown Pennington County Officers joined in the motion. Doc. 71. McPeek's response to the statements of material facts, affidavits, statement and effort to amend his complaint with attachments, while not technically a response brief, are sufficient filings to contest the summary judgment motions, so the motions to deem McPeek in default are denied. For the reasons explained below, this Court denies McPeek's motion to amend his complaint, grants Unknown Pennington County Officers' Motion for Summary Judgment, and grants in part and denies in part Rabe and Payer's Motion for Summary Judgment.

         I. Factual Background

         On August 6, 2016, McPeek was involved in an incident in Tyndall, South Dakota which resulted in his indictment for aggravated assault against law enforcement officer Kelly Young. Doc. 46 at ¶ 1; Doc. 64 at ¶ 1. Following the incident, McPeek traveled to Mesa, Arizona, where he was arrested on December 15, 2016. Doc. 46 at ¶¶ 1-3; Doc. 52-4; Doc. 64 at ¶ 1. During the arrest, McPeek was shot, perhaps five times apparently with rubber bullets, by law enforcement, and suffered injuries for which he was hospitalized for a day. Doc. 46 at ¶¶ 4-5; Doc. 50 at ¶ 4; Doc. 64 at ¶¶ 2-3; Doc. 65 at ¶ 4. On December 16, 2016, while hospitalized, McPeek was prescribed thirty 5-10 mg tablets of oxycodone to be taken every four hours for five days and fourteen docusate sodium 100 mg capsules to be taken twice daily for seven days. Doc. 8-10; Doc. 8-11; Doc. 50 ¶ 8-9; Doc. 65 ¶ 8-9. Neither prescription indicated it was refillable beyond the short period for which it was prescribed.[1] Doc. 8-10; Doc. 8-11. On December 27, 2016, he was prescribed thirty ibuprofen 800 mg tablets to be taken twice daily for fifteen days with no refills. Doc. 8-5; Doc. 52-6 at 2. McPeek remained in Maricopa County custody from his arrest until January 2, 2017, when he began his extradition to the Yankton County Jail in Yankton, South Dakota via the Northwest Shuttle prisoner transportation service. Doc. 8-4; Doc. 46 at ¶¶ 11-13; Doc. 64 at ¶ 4. En route to Yankton County, McPeek was held in various state facilities, including the Pennington County Jail in Rapid City, South Dakota, from January 19 until January 26. Doc. 50 at ¶ 6; Doc. 65 at ¶ 6.

         On January 20, 2017, McPeek participated in filling out an inmate intake form at the Pennington County Jail. Doc. 50 at ¶ 15; Doc. 52-2; Doc. 65 at ¶ 15. The intake form records that McPeek reported being on oxycodone, Zyrtec, Motrin, Excedrin, Tramadol, and Flexeril. Doc. 50 at ¶ 16; Doc. 65 at ¶ 16. Because of the wounds from his arrest in Mesa, McPeek was placed on a lower bunk restriction and referred to jail medical staff. Doc. 50 at ¶ 18; Doc. 52-2; Doc. 65 at ¶ 18. On his first night in the Pennington County Jail, McPeek was provided 400 mg of ibuprofen. Doc. 50 at ¶ 20; Doc. 65 at ¶ 20. Jail medical staff made clear to McPeek that they could not provide him additional medication or a special allergen-free meal tray until they had received medical records documenting McPeek's active prescriptions and allergies. Doc. 50 at ¶ 30; Doc. 65 at ¶ 24.

         McPeek believes that he was improperly denied access to prescribed medication while in the Pennington County Jail. He made nine medical inquiries and filed four grievances regarding denied medications and food allergies during his stay at the Pennington County Jail, each of which Pennington County officials responded to. Doc. 50 at 22; Doc. 65 at 20. The first two inquiries resulted in McPeek receiving and completing a release of information (ROI) form allowing the jail to obtain and view his medical records. Doc. 50 at ¶¶ 23-25; Doc. 65 at ¶ 20. The Pennington County Jail faxed ROIs to Siouxland Community Health, McKennan Hospital, and Sioux Falls Chiropractic for various medical records on January 20, and refaxed them on January 23. Doc. 50 at ¶¶ 26-28, 35; Doc. 52-2 at 10; contra Doc. 65 at ¶¶ 21-23, 26.[2] The Pennington County Jail received responses from McKennan Hospital and Sioux Falls Chiropractic on January 25. Doc. 50 at ¶¶ 36, 38; Doc. 52-2 at 10; contra Doc. 65 at ¶ 27. McKennan Hospital sent McPeek's records, which neither showed any active prescriptions nor confirmed his purported soy allergy. Doc. 50 at ¶ 37; Doc. 52 at 10; contra Doc. 65 at ¶ 28. But, the McKennan Hospital records did show he was allergic to bee stings and penicillin. Doc. 50 at ¶ 37; Doc. 52 at 10; contra Doc. 65 at ¶ 28. In its response to the ROI, Sioux Falls Chiropractic informed Pennington County that it had purged McPeek's records due to their age. Doc. 50 at ¶ 38; Doc. 52-2 at 11; contra Doc. 65 at ¶ 29. Siouxland Community Health did not respond to Pennington County's ROI while he remained at the Pennington County Jail. Doc. 50 at ¶ 40; contra Doc. 65 at ¶ 31; cf Doc. 52-2. The other medical inquiries and grievances submitted by McPeek while in the Pennington County Jail involved either further medication requests or concerns regarding his food allergies. Doc. 50 at ¶ 29; Doc. 65 at ¶ 24.

         On January 25, medical staff examined McPeek's right arm, which was observed as having a healing wound, with no warmth, swelling, or drainage. Doc. 50 at ¶ 32; Doc. 65 at ¶ 24. A medication order was placed for McPeek to have four 200 mg tablets of ibuprofen twice daily, but McPeek claims never to have received this medication. Doc. 50 at ¶ 33-34; Doc. 65 at ¶¶ 24-25. McPeek left Pennington County Jail for Yankton County Jail on the night of January 25. Doc. 50 at ¶41.

         McPeek arrived at the Yankton County Jail on January 26, 2017. Doc. 46 at ¶ 15. When he was booked into the Yankton County Jail, he had no medication on his person and the only prescription documentation he had pertained to the prescriptions issued to him while incarcerated in Maricopa County. Doc. 46 at ¶¶ 19, 20; Doc. 64 at ¶¶ 8, 9. Since all of McPeek's prescriptions had ended before McPeek arrived in Pennington County, none of them were active when Yankton County took custody of him.

         McPeek was placed in administrative segregation upon admission to Yankton County Jail, which is the basis for one of his remaining § 1983 claims. Rabe and Payer state that Corporal Steve Bolhouse and Corrections Officer Leah Brandt made the decision to place McPeek in administrative segregation for medical reasons, which McPeek denies although he lacks firsthand knowledge of who or why he was placed in administrative segregation. Doc. 46 at ¶¶ 16, 17; Doc. 64 at ¶¶ 5-7. Although nobody told him he was placed in administrative segregation as a punishment, McPeek believes that he may have been placed in administrative segregation in retaliation for his prior assault in Tyndall on Officer Kelly Young from which the South Dakota charges arose. Doc. 46 at ¶¶ 23-26. Payer and Rabe, based on an affidavit signed by Payer himself, state that McPeek was assigned to administrative segregation because he still had several visible wounds from being shot apparently with rubber bullets during his arrest in Mesa. Doc. 45 at ¶ 6; Doc. 46 at ¶ 16. The intake documents from the Yankton County Jail show that McPeek was booked into the jail by Rabe and faced a pending charge of aggravated assault against law enforcement officer with the arrest warrant issued in Bon Homme County. Doc. 57-1 at 24. The medical history apparently taken on intake recorded that McPeek had allergies to bees, penicillin, beans, and soy; was not deemed a behavior risk; did not need isolation; had visual trauma from five rubber bullet wounds inflicted on December 15, 2016; had myofascial muscle and tissue damage, bulging disks in neck, fibromyalgia and scar tissue on internal organs; was not an escape risk; and was not a medical risk. Doc. 57-1 at 25-26.[3]

         Curiously, despite being in administrative segregation ostensibly for medical reasons, McPeek received no medical treatment of any kind at Yankton County Jail until he met with physician's assistant Peter Murray on February 8, 2017, almost two weeks after he had been placed in administrative segregation. McPeek's initial medical request while at Yankton County Jail, dated February 6, 2017, triggered this visit, which was for "lump on chin & throat," which was found to be oozing and swollen and which was treated by a topical medicine. Doc. 42-2 at 1-4. McPeek made later medical requests at the Yankton County Jail for myofascial pain, lump on chin, nightmares and night sweats, and headache and dizziness. Each of those medical requests appear to have prompted appropriate responses and medical care. Doc. 42-4. The record is not entirely clear on how long McPeek remained in administrative segregation or at the Yankton County Jail, although fellow inmate Ronnie Young signed an affidavit stating that McPeek was eventually "moved out of segregation and put in general population" the day after the Super Bowl. Doc. 59 at ¶6.

         II. Discussion

         A. Motion to Amend Complaint

         McPeek moves to amend his complaint for the second time. Doc. 57; see also Doc. 30. In his most recent proposed amended complaint, McPeek seeks to change his federal civil rights claim from a 42 U.S.C. § 1983 claim to a § 1986 negligent failure to prevent a conspiracy to interfere with civil rights claim. Doc 57-1 at 1. He also seeks to add state tort claims against each defendant and identifies certain defendants by name. Doc. 57-1 at 11-12. Generally, "[t]he court should freely give leave" to a party to amend its complaint "when justice so requires." Fed.R.Civ.P. 15(a)(2). However, denying leave to amend a complaint "is appropriate ... in those limited circumstances in which undue delay, bad faith on the part of the moving [party], futility of the amendment, or unfair prejudice to the non-moving party can be demonstrated." Roberson ...

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