United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION TO AMEND AND DISMISSING
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Randy Cowherd, is an inmate at the Rapid City Community Work
Center (RCCWC) in South Dakota. Cowherd filed a pro se civil
rights lawsuit under 42 U.S.C. § 1983 and requested
leave to proceed in forma pauperis under 28 U.S.C. §
1915. Docket 1; Docket 2. On December 19, 2018, Cowherd's
motion to proceed in forma pauperis was granted and his
amended complaint was dismissed without prejudice for failure
to state a claim upon which relief could be granted. Docket
11. Cowherd now moves for leave to file a second amended
complaint. Docket 13. The court now screens Cowherd's
second amended complaint under 28 U.S.C. § 1915A, and
for the reasons stated below, the court dismisses
Cowherd's second amended complaint.
complaint alleges violations of his right to due process
during a prison disciplinary matter. Cowherd was on work
release at the RCCWC when he was charged with escape and
transferred to the Mike Durfee State Prison (MDSP). The facts
as Cowherd alleges are as follows:
8, 2017, Cowherd was placed in segregated confinement at
RCCWC without written notice of any violation or a
disciplinary hearing. Docket 13-1 at 2. He later learned he
was accused of not returning to the unit directly after work.
Id. at 3.
Memorandum and Affidavit in Support of Second Amended
Complaint, Cowherd describes the conditions in segregated
confinement at the RCCWC. Docket 14 at 4. Inmates in
segregation do not have access to radios, books, or legal
materials. Id. Inmates are in their cells 24 hours a
day with the lights always on. Id. During the twenty
days in confinement, he was permitted to shower three times.
10, 2017, Cowherd had an initial appearance in state court
and the judge informed Cowherd that he was charged with
second degree escape on July 8, 2017. Docket 13-1 at 3. On
July 26, 2018, these charges were dropped. Id.
the state charges were dropped, the defendants pursued
internal discipline. Id. On Friday, July 28, 2017,
at 8:30 a.m., Brittany Ulmer, Cowherd's assigned staff
representative, told Cowherd his disciplinary hearing would
be Monday to allow her to collect evidence. Docket 13-1 at 2.
An hour later, Ulmer returned with the Disciplinary Hearing
Officer Jeramme Larson to hold the disciplinary hearing.
a.m. on July 28, 2017, Larson held a disciplinary hearing.
Id. Cowherd did not receive notice twenty-four-hours
in advance of the hearing. Id. Cowherd was not
allowed to present evidence or call witnesses. Id.
Ulmer perjured details of witnesses and evidence.
believes Larson was biased against him due to a previous
disciplinary matter. Id. at 4. Cowherd was
previously charged with a rule violation. Id.
Cowherd was found not guilty of the rule violation because he
was incorrectly written up. Id. As a result, Larson
had to go to the warden to have the disciplinary action
removed from Cowherd's record. Id.
the July 28, 2017 hearing, the wardens failed to investigate
this incident and were indifferent to Cowherd's claims.
Id. at 3. Wardens also failed to train their
subordinates to follow procedures. Id.
result, Cowherd was deprived of liberty and property.
Cowherd's security status was heightened, and he lost his
initial parole date for non-compliance with his Individual
Program Directive (IPD). Id. at 4. Cowherd suffered
“stress, dejection, hopelessness, and ire.”
Id. At MDSP, Cowherd's “issues with PTSD
were exacerbated from living in an atmosphere with violent
offenders and sexual predators.” Id.