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Brakeall v. Stanwick-Klemik

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

September 28, 2018

WINSTON GREY BRAKEALL, Plaintiff,
v.
JENIFER STANWICK-KLEMIK, in her individual and official capacity; JOSH KL1MEK, in his individual and official capacity; DENNIS KAEMINGK, in his individual and official capacity; ROBERT DOOLEY, in his individual and official' capacity; BRENT FLUKE, in his individual and official capacity; KELLY TJEERDSMA, in her individual and official capacity; NICOLE ST. PIERRE, in her individual and official capacity; TAMMY MERTENS-JONES, in her individual and official capacity; ANNIE ANTROBUS, in her individual and official capacity; UNKNOWN CBM FOOD SERVICES STAFF, individual and official capacity; UNKNOWN DEPARTMENT OF CORRECTIONS STAFF MEMBERS, individual and official capacity; SOUTH DAKOTA DEPARTMENT OF CORRECTIONS; LT. MADDOX, in his individual and official capacity; LT. HARTIGAN, in his individual and official capacity; CAC FLEEK, in his individual and official capacity; TIFFANY VOIGT, in her individual and official capacity; Defendants.

          ORDER DISMISSING COMPLAINT IN PART AND DIRECTING SERVICE

          Lawrence L. Piersol, United States District Judge

         INTRODUCTION

         Plaintiff, Winston Grey Brakeall, is an inmate at Mike Durfee State Prison (MDSP) in Springfield, South Dakota. He filed a pro se civil rights lawsuit under 42 U.S.C. § 1983, the Americans with Disabilities Act, and the Religious Land Use and Institutionalized Persons Act. The Court previously "screened" this case pursuant to 28 U.S.C. § 1915A and directed service. Brakeall, however, has not yet served any defendants.

         Brakeall now moves to amend and supplement his complaint. Docket 17, 19, & 20. Brakeall intended these motions to add to his initial complaint, rather than supplant or replace his initial complaint. Docket 20. Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend his pleadings once without court authorization if the motion is made within 21 days after service or within 21 days after service of a responsive pleading. Because no defendants have been served, the court will grant Brakeall's motions to amend and supplement and rescreen Brakeall's claims against defendants.

         FACTUAL BACKGROUND

         Brakeall alleges several violations of his civil rights occurred at MDSP. Docket 17-1. The facts as alleged in the amended complaint are as follows.

         Bed Modification

         Brakeall stands 6' 9" tall. Id. ¶ 18. He has a body mass index of 37.5 and is morbidly obese. Id. Brakeall requires modifications to his bed to lie flat. Id. ¶ 19. In 1997, Brakeall was imprisoned at the South Dakota State Penitentiary (SDSP) and the Department of Corrections (DOC) extended a bed and issued an extra mattress, blankets, and pillows. Id. ¶ 19. In 2000, Brakeall was transferred to East Hall in SDSP where a second, customized bed was made for him. Id. ¶ 20. Brakeall was again issued additional mattresses and bedding. Id. In 2005, Brakeall was transferred to the MDSP. Id. ¶ 21. The staff was alerted to Brakeall's size and they prepared a medical bed with a one-foot mattress extension. Id.

         In November 2014, Brakeall returned to the Jameson Prison Annex. Id. ¶ 22. Brakeall informed staff that he was too tall to sleep in the cells because the bunks are built across die 6' 5" widtii of the cell. Id. Staff assigned Brakeall die top bunk, which is approximately six feet off the ground. Brakeall was unable to climb into his assigned bed and slept on the floor for six weeks. Id. ¶ 24. Staff witnessed Brakeall duck under doorways and sleep on the floor. Id. ¶ 23. The Jameson Annex staff claimed to have no record of Brakeall's height, weight or past accommodations. Id. In December of 2014, Brakeall was transferred to the East Hall at the SDSP. Id. ¶ 24. East Hall staff also claimed to have no record of Brakeall's height, weight or past accommodations or any orders to keep Brakeall on the first floor, to assign him die bottom bunk, or provide him extra bedding. Id. ¶ 25. Several days later, Brakeall was transferred to the West Hall housing unit after being assaulted. Id. ¶ 26. In West Hall, Brakeall was assigned the middle bunk of a triple stack. Id. The top bunk was approximately twenty inches away from the middle bunk. Id. Brakeall regularly bumped his head and shoulders on the upper bunk. Id.

         Brakeall's parole was reinstated and he was transferred to the Community Transition Program (CTP) at Unit C. Id. ¶ 27. Brakeall was initially assigned the top bunk of a triple stack, but he was allowed to move to a middle bunk and was given additional bedding as a temporary extension. Id.

         In December 2015, Brakeall was detained and placed in East Hall wida no height accommodations. Id. ¶ 28. In February of 2016, Brakeall was transferred to West Hall after being assaulted a second and third time. Id. In West Hall, Unit Manager Keith Ditmanson provided Brakeall with an extra mattress. Id.

         In July of 2016, Brakeall violated his parole and was transferred to MDSP. Id. ¶ 29. At MDSP, he was assigned to the top bunk of a triple stack in a nine-man room in the West Crawford housing unit. Id. at 8, ¶ A2. Unit Coordinator Britney Ulmer told Brakeall his bed would be modified once he was transferred to a "permanent" room. Id. ¶ 30.

         In October of 2016, Brakeall was assigned the bottom bunk in room 118. Id. ¶ 31. The bottom bunk is approximately five inches off the floor. Id. Nine months passed without any modifications to the bed. Id. ¶ 32. Without modifications, Brakeall "is forced to sleep with his feet pushed through the cross bars at the bottom." Id. Additionally, Brakeall's weight causes persistent hip and back pain, which can be accommodated with a second mattress. Id. The bed's proximity to the floor causes Brakeall constant knee and back pain. Id. ¶ 107.

         Brakeall spoke to Unit Manager Josh Klimek about the modifications and an extension. Id. ¶ 33. Klimek repeatedly replied that "he's 'looking into it.'" Id. ¶ 33. Brakeall also kited Klimek several times but received no response. 7J¶ 34. Brakeall filed a grievance but received no response. Id. ¶ 35. Brakeall signed up to see Klimek during" 'open door' periods at least fifty times in a past months and the only time-he has seen Mr. Klimek was in passing at his desk." Id. 36.

         Colonoscopy Cancellation

         Brakeall requested a colonoscopy to screen for cancer. Id. at 9, ¶ S4. His request was approved and an appointment was scheduled in August 2017. Id. On Thursday, July 27, 2018, a health services nurse told him he could not take ibuprofen or any other anti-inflammatory drugs until after his colonoscopy. Id. ¶ S5. That same day, Brakeall informed his parents about the upcoming colonoscopy. Id. at 10, ¶ S6.

         On Saturday, July 29, 2018, Health Services informed Brakeall that he was placed on a low fiber diet in preparation for his colonoscopy. Id. ¶ S7. That same day, Brakeall again called his parents about the colonoscopy he expected to take place on Monday or Tuesday. Id. ¶ S8.

         On July 30, 2018, Health Services gave Brakeall laxative tablets at 4:00 p.m. and told him to return at 6:00 p.m. for another dose. Id. ¶ S9. Brakeall then called his parents about the colonoscopy. ¶S 10.

         At 2:00 p.m. on July 31, Brakeall's mother, Linda Brakeall, called the prison to check on Brakeall's status. ¶ S15. Medical staff then brought Brakeall a disclosure form to allow them to discuss his condition with his mother. ¶ S16. At 5:00 p.m., Health Services called for Brakeall and informed him that he would have to stay in the infirmary until his colonoscopy was complete. Id. ¶ SI 1. The nurses told him it was to prevent him from eating and interfering with the colon prep. Id. At 8:00 p.m., Brakeall spoke to Lt. Maddox, the officer in charge, about going to the law library. ¶ S12. Maddox denied the request stating that it would violate security if plaintiff was able to inform other inmates that he was being taken off the lot for his test. Id. Brakeall then informed Maddox that he had already told his parents and everyone on the unit. Id. at 10, ¶ S13. Maddox said Brakeall had to stay in the infirmary until the test was over or he could refuse the colonoscopy. Id. ¶S14.

         At 4:00 p .m., nurses brought Brakeall the first half gallon of laxative solution and instructed him to drink it within two hours with a gallon of water. Id. at 12, ¶ S17. Brakeall complied and "suffered cramps and severe diarrhea until nearly 9:00 p.m." Id. ¶ S18. At 2:00 p.m. on August 1, nurses brought Brakeall a second half gallon of laxative solution. ¶ S19. "Brakeall was not able to sleep for the rest of the night due to cramps and voluminous diarrhea." Id. ¶ S20. At 5:30 am on August 1, officers instructed plaintiff to report to Gill Hall for transport to his exam. Id. ¶ S21. Brakeall was then strip searched and placed in handcuffs with a belly chain by Officer Jelsma. Id. ¶ S22. Once outside the prison gate, Hartington informed him that the exam had been canceled. Id. ¶ S23. Brakeall later learned that his exam had been canceled due to the security risk of Brakeall informing his parents. Id. at 13, S24.

         Jewish Holidays

         Brakeall is Jewish and he established the Jewish service at MDSP in 2006. Id. ¶ 37. Until his release in 2012, Brakeall attended almost ever Sabbath and Havdalah service and organized the holy day observations. Id.

         Brakeall observed Passover every year the prison offered it and requested to do the same in 2017. Id. ¶ 38. Chapel Activities Coordinator Nicole St. Pierre failed to answer his kites about participating in Passover 2017. Id. at 16, ¶ A3. St. Pierre did not allow Brakeall to participate in the Passover meals and did not provide an explanation to Brakeall. Id.

         During this time, Brakeall "asked CAC St. Pierre to request mishloach manot or Purim packages, from the Aleph Institute, an organization which provides Jewish inmates and military personnel with religious supplies." Id. ¶ A4. In March 2017, Brakeall alleges he saw an Aleph Institute Purim package on St. Pierre's Office. Id. at 17, ¶ A5. On the March 12, the Purim holiday, Brakeall expected St. Pierre to deliver the package, but he did not receive it. Id. ¶ A6. Brakeall filed a grievance and St. Pierre responded that Aleph did not provide any mishloach manot to the prison. Id. ¶ A7.

         St. Pierre men initially refused to allow Brakeall to participate in the fast for the ninth of Av on August 1, 2017, because he did not attend Jewish services. Id. ¶ 39. Brakeall kited St. Pierre and received a slip for the fast the next day. Id. ¶ 40. In the past, Brakeall has been on the fast list and not received the sack lunches. Other inmates have also been removed from the 9th of Av fast list for failing to attend the required percentage of services and were not placed on the fast list later. Id. Therefore, Brakeall could not be sure that he would receive a sack lunch until actual delivery. Id.

         Tammy Mertens-Jones issues orders for all DOC facilities including the order that inmates who do not attend a certain percentage of services will not be allowed to participate in the holy days. Id. ¶ 41. Brakeall does not attend Jewish services at MDSP because "his original service has splintered into a homosexual date night service, a Kabala mysticism service, and a messianic Christian service, none of which are compatible with his personal beliefs." Id. ¶ 42. When Brakeall attended the new services, the congregants were "baffled" when Brakeall "recited blessings in Hebrew, a language none of them recognized." Id. ¶ 43. Brakeall did not attend Purim, Shauvot, or any other celebration to avoid associating with the congregations. Id. ¶ 44. Brakeall does not want to reorganize the service. Id. ¶ 45. Brakeall only wishes to observe the holy days of his faith. Id.

         Reek replaced Nicole St. Pierre as the chapel activities coordinator in fall of 2017. Id. at 20, ¶ S35. Fleek requires inmates wanting to observe holy days to go through the congregation leaders. Id. ¶ S36. Brakeall alleges that "[t]his gives inmates authority to act as religious police." Id. Brakeall was not allowed to participate in the 10th of Tevet until he filed a grievance. Id. ¶ S37. Similarly, Brakeall alleges he had to file grievances to be placed on the Passover List for 2018. Id. ¶ S38. Brakeall alleges that Fleek denied him the ability to receive donations from Aleph and stated that all donations and purchases must be through JewishSupply.com. Id. at 21, ¶S39. Brakeall alleges that he was previously able to receive supplies tiirough Aleph. Id. ¶ S41.

         Brakeall asked to be placed on the Jewish fast list for the fast of Esther on February 28, 2018. Docket 19-1 at 5. Fleek refused. Id. In response to Brakeall's grievance on the matter, Fleek stated Brakeall must attend one of die Jewish services to participate in holy day observances. Id. Brakeall asked to be placed on the list for the Fast of the First Born on March 30, 2018. Id. "These requests included a note on the sign up form for the Passover meals." Id. Fleek stated he had not received any requests and Brakeall could not participate. Id.

         Kosher Meals

         Brakeall also alleges that the DOC does not provide a kosher meal option. Id. at 19. No. Rabbi has ever inspected die kitchens >at MDSP. Id. at 19, ¶ A8. "CBM Food Service does not provide a dedicated area or utensils for the preparation of die allegedly kosher meals." Allegedly kosher and non-kosher foods are prepared in the same areas. Id. ¶ A9. Brakeall alleges Dooley, Kaemingk, and unknown DOC staff know that die meals served by CBM are not prepared in accordance witii Jewish law. Id. at 20, ¶ A10. He further asserts mat "[t]he rice served as the entree for all lunches and dinners is not certified kosher by any recognized Jewish authority." Id. Al 1.

         MDSP Facility

         The MDSP is a former college designed and built in the 1950-60s. Docket 17-1 ¶ 47. Brakeall wrote to the Bon Homme County zoning and planning for specific design capacity information but received no response. Id.

         All inmates at MDSP are initially housed in the Barracks, a steel building built in 2005. Docket 20-1 ¶ 23. Inmates classified as "low-risk" by staff impressions are housed in the Barracks. Id. ¶ 25. The Barracks house 400 inmates in tibree pods and contains additional room for fifty in the Special Housing Unit (SHU). Each pod has a line of toilets without doors. Id. ¶ 26. Each pod has approximately eight shower heads for "the hundred-plus inmates." Id. ¶ 27. The walls are covered with mold and mildew. Id.

         Brakeall was housed in die Barracks in 2016 and could be moved to the Barracks if his security classification changes. Id. ¶ 24. When Brakeall was in the Barracks in August 2016, the temperatures were over 90 degrees for the entire time and the concrete floor was slick from the humidity. Id. ¶ 28.

         Barracks claim the Barracks were designed to have air conditioning so no other ventilation was installed. Id. ¶ 30. The only air conditioning installed is in the officers' area and staff offices. Id. He further alleges that the Barracks do not meet building code. Id. ¶ 32.

         The main housing buildings at MDSP include Harmon, Ludeman, and East and West Crawford. M-at ¶ 33. These buildings were formerly college dorms built in the 1950s and 1960s. Id. The rooms were originally designed to accommodate two people. Docket 17 ¶48. The first floor of West Crawford was intended for thirty-six students, but now houses sixty-six inmates. Id. Despite subsequent remodels, "the fundamental two person structure remains." Id. For example, "There are two desks, two closets, two sets of storage drawers, one window, [and] one fan." Id. Three inmates are housed in the rooms and are expected to divide the use of space themselves. Id. ¶49.

         In some areas, the DOC also destroyed walls creating nine-man rooms in the space intended for four students, which causes friction between inmates. Id. ¶ 50. Brakeall alleges that "inmates are allowed to move into [nine-man rooms] to congregate in racial or gang-based groups, despite the risks involved to other inmates and facility security." Id. at 23, ¶ A12. He was initially placed in a nine-man room in West Crawford and he alleges he was "continually harassed and repeatedly robbed." 7d.¶A13.

         Dooley allegedly "promulgates policies which uses these nine-man rooms as initial dumping grounds for inmates as they are assigned to the various buildings." Id. ¶ A14. This is done without "regard to makeup of the existing occupants, resulting in theft, harassment, and frequent violence." Id. Brakeall claims Dooley's successor Brent Fluke has continued these policies without modification. Docket 20-1 ¶ 40. As a result, Brakeall alleges inmates are being extorted by room. Docket 17-1 at ¶ A14. Brakeall alleges "[f]or a period in 2017, Plaintiff was aware of three inmates paying protection money to room 108 as a collective." Id. ¶ A15.

         West Crawford is a three-story building where each floor has three shower heads, three toilets, three partition-less urinals, and five sinks. Id. ¶ 51. There are approximately 70 inmates per floor. Id. The shower heads are arranged so that two of the three shower heads share the same floor space. Id. "If the plaintiff is using the shower head on the east wall, the shower head on the south wall sprays his thighs. Functionally, there are only two shower heads on each floor." Id. There are daily lines to use facilities. Id. ¶ 52. The restrooms are cleaned once per day but that is insufficient given the volume of use. Id. Furthermore, rules prohibit using the facilities on a different floor. Id. Inmates using the day hall, however, may use the first-floor restroom, adding to the overcrowding. Id.

         On the first floor of West Crawford, the inmate changing area was converted into a handicap shower. Id. ¶ 53. When the handicap shower is occupied, die wheelchair blocks the door to the main shower room. Id. The handicap toilet is a stool on the wall in front of the restroom door with no privacy. Id. ¶ 55. Those passing by the hall can observe any handicapped inmate using the facility. Id. "Plaintiff contends that using this toilet would be a violation of the Prison Rape Elimination Act due to the exposure involved." Docket 20-1 ¶ 47.

         There is no ventilation in West Crawford. Docket 17-1 ¶ 56. When inmates shower, the condensation on the ceiling drips on inmates using the toilets, saturates the toilet paper, and wets the floor. Id. ¶ 56. During winter, the window freezes open and allows a cold fog to form in the bathroom. Id. at 25, ¶ S42. Brakeall claims "hot water is only intermittendy available[.]" Id. ¶ S43. Black mold and mildew grow on the shower ceilings. Id. ¶ 57. The ceilings in the shower and toilet area must be stripped and repainted several times each year due to the constant moisture and fungal growths. Id. Brakeall's respiratory distress is worsened by the mold and requires .Brakeall to take medication. Id.

         Inmate laundry is insufficient to accommodate all the laundry. Id. ¶ 58. Inmate clothing, bedding, and linen is returned dirty and damp. Id. ¶ 60. Brakeall alleges that, several times a year, the laundry supervisor issues a memo limiting inmate laundry. Id. at 26, ¶ A16. The limit makes it impossible to change clothes on the weekend. Id.

         The prison previously issued white boxer underwear to inmates. Id. ¶ 59. The underwear was commonly stained with urine and feces. Id. ¶ 61. The prison frequently reissues used underwear. Id. The prison now issues brown boxers to conceal the stains rather than fix the laundry. Id.

         Regular library time for inmates is twice-per-week for forty-five minutes, but it is frequently canceled. Id. ¶ 61. Due to the library's capacity and lack of time, Brakeall must sign up multiple times before he can go to the regular library. Id.

         The East and West Crawford units were designed and built with air conditioning but no other ventilation. Id. ¶ 64. The air conditioning unit later broke and was unhooked. Id. In 2010, the East and West Crawford heating systems were rebuilt and new air handling units were installed in each room with outside vents below the windows. Id. ¶ 64. The first-floor vents are six inches above the soil. Id. The area below these vents should be concrete or asphalt. Id. Insects crawl through these vents into inmate rooms. Id. The vents provide no air circulation. Id.

         Brakeall's morbid obesity inhibits his body's ability to regulate body temperature. Id. ¶ 65. "As a result of the high heat indices in the building, the excessive heat is damaging his internal . organs due to their inability to dissipate heat because of the fat layer." Id. Brakeall sweats excessively and experiences severe cramps in his legs and arms. Id. Brakeall has fallen repeatedly when attempting to stand for count. Id. Brakeall could die from heat stroke. Id.

         Brakeall was prescribed three antihistamines for respiratory distress. Id. ¶ 66. "These drugs' act by blocking acety[l]choline, which is the neurotransmitter that drives sweat glands. This interference with the body's ability to sweat in an already toxic environment causes the effects of heat exhaustion to be amplified." Id. Brakeall suffers from daily ...


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