United States District Court, D. South Dakota, Southern Division
ORDER DISMISSING COMPLAINT IN PART AND DIRECTING
Lawrence L. Piersol, United States District Judge
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.
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
alleges several violations of his civil rights occurred at
MDSP. Docket 17-1. The facts as alleged in the amended
complaint are as follows.
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.
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.
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.
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.
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.
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. ¶
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.
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.
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.
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.
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.
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,
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.
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.
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.
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.
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.
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.
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.
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. ¶
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.
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.
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.
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. ¶
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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 ...