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Johnson v. Kaemingk

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

March 29, 2019

LESLIE JOHNSON, Plaintiff,
v.
DENNY KAEMINGK, SECRETARY OF CORRECTIONS, IN HIS PUBLIC CAPACITY; ROBERT DOOLEY, CHIEF WARDEN, IN HIS PUBLIC CAPACITY; NANCY CHRISTENSEN, UNIT MANAGER, IN HER PUBLIC CAPACITY; ALEJANDRO REYES, ASSOCIATE WARDEN, IN HIS PUBLIC CAPACITY; AND ROB CARUAHA, ADA COORDINATOR, IN HIS PUBLIC CAPACITY; Defendants.

         MEMORANDUM OPINION AND ORDER DENYING MOTION TO DISMISS, MOTION TO APPOINT COUNSEL, MOTION FOR RECONSIDERATION, MOTION FOR DISCOVERY, MOTION TO ADD CLAIMS AND CORRECT PLEADING, MOTION TO QUASH, AND GRANTING LEAVE TO AMEND

          Lawrence L. Piersol, United States District Judge

         Pending before the Court is plaintiff, Leslie Johnson's ("Johnson"), Motion to Appoint Counsel, Docs. 24 & 41; Motion to Correct Title and Pleading, Doc. 24; Motion for Reconsideration, Doc. 24; Motion for Sharing Discovery Documents, Doc. 30; Motion to Add Additional Claims for Injury and Adjust Damages, Doc. 32; Motion to Quash Defendant's Response in Opposition to Plaintiffs Motion to Add Additional Claims for Injury, Doc. 36; and a Motion to Dismiss, Doc. 28, that was filed by defendants Denny Kaemingk, Secretary of Corrections, in his official capacity; Robert Dooley, Chief Warden, in his official capacity; Nancy Christensen, Unit Manager, in her official capacity; Alejandro Reyes, Associate Warden, in his official capacity; Rob Carauha, in his official capacity ("Defendants").

         BACKGROUND

         I. Facts and Procedural Background in Federal Court

          Johnson is an inmate at Mike Durfee States Prison ("MDSP") in Springfield, South Dakota. On March 30, 2017, Johnson filed a pro se motion for temporary restraining order and motion for preliminary injunction and motion for court to order preservation of camera footage. Docs. 1 & 13.

         On June 16, 2017, Johnson filed a complaint alleging several violations of the Americans with Disabilities Act ("ADA"), Doc. 9, and subsequently moved the Court for Leave to Proceed in forma pauperis, Doc. 16. Johnson's complaint generally concerns the prison's alleged failure to accommodate his disabilities, the prison's alleged non-compliance with the ADA Standards of Accessible Design ("ADA Accessibility Standards"), and the alleged retaliation that Johnson suffered as a result of filing ADA complaints. Johnson alleges he "has several medical conditions that restrict his mobility" and that "[h]e is confined to a wheel-chair." Doc. 9 at 2, ¶ 2. Johnson also alleges that he suffers from COPD and as a result, he has a difficult time breathing in a humid environment. Doc. 9 at 3, ¶ 2; 5, ¶ 7.

         The Court issued an order granting Johnson's motion for leave to proceed in forma pauperis, Doc. 16. On March 22, 2018, the Court issued an ordering denying Johnson's motion for temporary restraining order, preliminary injunction, and motion to order preservation of camera footage. Doc. 20. In its March 22nd order, the Court held that Johnson's Title II and Title V claims for injunctive relief under the ADA against Denny Kaemingk, Robert Dooley, Nancy Christensen, Alejandro Reyes, and Rob Caruaha in their official capacities ("Defendants") survived the pre-service screening that the Court is obligated to undertake under 28 U.S.C. §§ 1915(e)(2)(B) and 1915 A and the Court directed service of the summons and complaint and a copy of the Court's order upon Defendants. Doc. 20. Each of the Defendants have been served as directed in accordance with the Court's order. Docs. 23 & 27.

         With regard to Johnson's surviving claims, Johnson alleges in his complaint that on several occasions he was forced to wait outside on the stairlift to access church services, at times during inclement weather, while non-handicapped inmates were counted before an officer assisted him with the stairlift.[1] Doc. 9 at 3, ¶ 1; 4, ¶ 4, Exs. A, G. In his claim for relief, Johnson requests damages of $5, 000, 000.00 and that he be provided "reasonable access" to religious services. Doc. 9at3, ¶l;9, ¶ l.

         Johnson alleges that in retaliation for filing ADA complaints, he his prohibited from using the "handicapped-only" bathroom and may only use the handicap shower and the handicap toilet in the general population restroom. Doc. 9 at 4, ¶ 3, Ex. E. It appears from the exhibits attached to the complaint, that the handicapped stall in the general population bathroom is not designated as "handicapped-only" and that the general population may use the handicapped stall in the general population bathroom when no other stalls are available. Doc. 9 at 4, ¶ 3, Ex. E. Johnson also alleges that these actions violate Title II of the ADA. Doc. 9 at 4, ¶ 3. Johnson claims that the urinal in the general population bathroom is not in compliance with the ADA Accessibility Standards. Doc. 9 at 4, ¶ 5, Ex. I. In his request for relief, Johnson requests $2, 000, 000.00 in damages for these claims, that Defendants cease all retaliation against him, and that the urinal comply with the ADA Accessibility Standards. Doc. 9 at 4, ¶¶3, 5; 9, ¶ 3.

         Johnson alleges that the placement of a rubber mat in front of the ice/hot water machine violates Section 303 of the ADA Accessibility Standards and that Defendants should instead apply "a tape type anti-slipper application to avoid the slippery spots, and still allow easy access to the machine." Doc. 9 at 5, ¶ 6, Ex. J. In his claim for relief, Johnson requests damages of $1, 000, 000.00 and requests that Defendants provide him reasonable access to the ice/hot water machine. Doc. 9 at 5, ¶ 6, Ex. J; 9, ¶ 1.

         Johnson alleges that the exhaust fan in the handicap bathroom vents between two walls and does nothing to eliminate the excessive humidity in the shower and that he has a difficult time breathing in the humid environment with his COPD. Doc. 9 at 5, ¶ 7, Ex. K. Johnson alleges that in the handicap shower, two circulation fans were removed, along with shelves and coat hooks in retaliation for Johnson filing ADA complaints. Doc. 9 at 3, ¶ 2, Ex. C; at 5, ¶ 7. In his claim for relief, Johnson seeks damages of $2, 000, 000.00 and requests that Defendants remedy the humidity in the handicap bathroom. Doc. 9 at 3, ¶ 2; at 5, ¶ 7.

         Johnson alleges that in retaliation for filing ADA complaints, the ADA Coordinator said "very loudly and authoritatively, what's your problem" and told Johnson to stop filing grievances. Doc. 9 at 6, ¶ 8, Ex. O. Johnson also alleges that he is subject to harassment by staff and that the staff is encouraging other inmates to retaliate against him for exercising his rights under the ADA. Doc. 9 at 2, ¶ 3; 7, ¶ 11. Johnson alleges that one inmate told a Unit Manager that he should handcuff Johnson to the new handicap area provided at one of the picnic tables. Doc. 9 at 7, ¶ 11. Johnson alleges that instead of discouraging such comments, the Unit Manager laughed. Doc. 9 at 7, ¶ 11. In his claim for relief, Johnson claims damages of $2, 000, 000.00 for these violations and requests that the alleged retaliatory conduct cease. Doc. 9 at 6, ¶ 8; 7, ¶ 11.

         Johnson alleges that he was moved to the "Barracks, in an attempt to silence him." Doc. 9 at2, ¶ l.

         Johnson alleges that during the remodeling of the general population bathroom, Defendants placed two 55-gallon trash cans and a shower chair in a hallway in front of the message board and that this violated the ADA Accessibility Standards which Johnson alleges requires a hallway width of 60 inches and also violated the "A.D.A. title II technical assistance manual § II 3.10000 Illustrations" Doc. 9 at 6, ¶ 9, Ex. P. Johnson further alleges that the phone cords are less than the length required by the ADA. Doc. 9 at 6, ¶ 9. In his claim for relief, Johnson seeks $2, 000, 000.00 in damages and requests that Defendants comply with the ADA. Doc. 9 at 6, ¶ 9; at 9, ¶ 3.

         Finally, Johnson alleges that Defendants refuse to provide him a desk or writing table that meets the requirements of the ADA and in his claim for relief, seeks $1, 000, 000.00 and requests that Defendants comply with the ADA. Doc. 9 at 7, ¶IO; at 9, ¶ 3.

         On April 11, 2018, Johnson filed a motion to appoint counsel and to correct title and pleading and a motion to reconsider the Court's ordering denying Johnson's motion for temporary restraining order and preliminary injunction. Doc. 24.

         On June 6, 2018, Defendants filed a motion to dismiss Johnson's surviving claims for failure to state a claim upon which relief may be granted. Doc. 28.

         On June 7, 2018, Johnson filed a motion for sharing discovery documents. Doc. 30.

         On November 29, 2018, Johnson filed a motion to add additional claims for injury and adjust damages accordingly. Doc. 32. In his motion, Johnsons alleges that when he was discharged from a three-day stay at the hospital for pneumonia, he was not provided a wheelchair and was "forced to sit on a bench seat with NO Coat." Johnson alleges that he was wrapped in blankets and provided only a lap seatbelt. Johnson alleges claims of negligence and deliberate indifference against Defendants and makes an additional claim for $8, 000, 000.00 in damages. Defendants have filed their opposition to Johnson's motion. Doc. 34.

         On March 13, 2019, Johnson filed a motion to appoint counsel. Doc. 41.

         Currently pending before the Court are Johnson's Motion to Appoint Counsel, Docs. 24 & 41; Motion to Correct Title and Pleading, Doc. 24; Motion for Reconsideration, Doc. 24; Motion for Sharing Discovery Documents, Doc. 30; Motion to Add Additional Claims for Injury and Adjust Damages, Doc. 32; Motion to Quash Defendant's Response in Opposition to ...


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