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Simpson v. Kaemingk

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

August 27, 2019

JESSE ROY SIMPSON, Plaintiff,
v.
DENNIS KAEMINGK, SECRETARY OF CORRECTIONS, STATE OF SOUTH DAKOTA, INDIVIDUAL AND OFFICIAL CAPACITIES; BRENT FLUKE, HEAD WARDEN, MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITIES; ALEJANDRO REYES, ASSOCIATE WARDEN, MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITIES; JOSH KLIMEK, UNIT MANAGER, MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITIES; MISSY TOLSMA-HANVEY, NURSE, DOC AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITIES; MEL WALINGA, PHYSICIAN, DOC, MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITIES; DENISE BARDWELL, NURSE, DOC AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITIES; CBM FOOD SERVICES, UNKNOWN DEPARTMENT OF CORRECTIONS EMPLOYEES, MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITIES; UNKNOWN DEPARTMENT OF HEALTH CORRECTIONS EMPLOYEES, MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITIES; AND UNKNOWN CBM FOOD SERVICES EMPLOYEES, MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITIES; Defendants.

          ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND § 1915(A) SCREENING

          Lawrence L. Piersol, United States District Judge

         Plaintiff, Jesse Roy Simpson, is an inmate at the South Dakota State Penitentiary, in Sioux Falls, South Dakota. When these claims were raised, Simpson was a inmate at the Mike Durfee State Prison ("MDSP") in Springfield, South Dakota. Docket 1 at 1. Simpson filed a pro se lawsuit pursuant to 42 U.S.C. § 1983 alleging violations of the Eighth Amendment, Fourteenth Amendment, and the Americans with Disabilities Act ("ADA"). Id. Simpson filed a motion to proceed in forma pauperis on October 16, 2018. Docket 3. This order shall address Simpson's motion to proceed in forma pauperis as well as an initial screening of his complaint.

         MOTION TO PROCEED IN FORMA PAUPERIS

         Under the, Prison Litigation Reform Act (PLRA), a prisoner who "brings a civil action or files an appeal in forma pauperis . .. shall be required to pay the full amount of a filing fee." 28 U.S.C. § 1915(b)(1). The court may, however, accept partial payment of the initial filing fee where appropriate. Therefore," '[w]hen an inmate seeks pauper status, the only issue is whether the inmate pays the entire fee at the initiation of the proceedings or over a period of time under an installment plan.''" Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (quoting McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997)).

         The initial partial filing fee that accompanies an installment plan is calculated according to 28 U.S.C. § 1915(b)(1), which requires a payment of 20 percent of the greater of:

(A) the average monthly deposits to the prisoner's account; or
(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.

         Simpson filed a prisoner trust account and the account shows his current balance as "negative [$]48.36" because, Simpson owes money, the initial partial riling fee is waived. Docket 4 at 1. Based on this information, the Court grants Simpson leave to proceed in forma pauperis and waives his initial partial filing fee.

         In order to pay his filing fee, Simpson must "make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account." 28 U.S.C. § 1915(b)(2). The statute places the burden' on the prisoner's institution to collect the additional monthly payments and forward them to the Court as follows:

After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.

28 U.S.C. § 1915(b)(2). The installments will be collected pursuant to this procedure.

         The clerk of the court will send a copy of this order to the appropriate financial official at plaintiffs institution. Simpson will remain responsible for the entire filing fee, as long as he is a prisoner, even if the case is dismissed at some later time. See In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997).

         FACTUAL BACKGROUND

         According to his complaint, Simpson was diagnosed with Diabetes Mellitus, Type 1, in 1997 and has been insulin dependant since then. Docket 1 at 3. A1C blood levels indicate "the stability and progress of his disease" and before incarceration his A1C level remained stable at 8.0. Id. Since being incarcerated, Simpson alleges that his levels have been at 10.1 and as high as 11.7 within the last 90 days. Id. Simpson contends that elevated A1C levels indicate "damage to the patient's nervous system, cardiovascular systems, and immune system .. . increasing the risk of further complications of the disease, such as neuropathy, heart attack, or strokes." Id.

         DIET

         Simpsons asserts that the rise in the blood levels is the direct result of the diet provided by CBM Food Services. Id. Furthermore, Simpson claims there is no diabetic diet provided for by the correction facility. Id. Simpson cites the Food Service Review report by Barbara Warren, National Commission on Correctional Health Care. Id. Simpson claims that the Food Service Review found that the food provided by CBM Food Services is based on starches and sodium with low levels of protein and few vegetables and fruit. Id. Furthermore, Simpson alleges that there are no alternative foods or meals that are available to individuals with diabetes. Id. at 4.

         CARE

         Simpson alleges that during an incident when he had low blood sugar at 3:00 am and a nurse was called. Id. Simpson contends that the Nurse, Denise Bardwell, responded to this "medical crises" as "wasting her time" and threatened to file a disciplinary action against Simpson. Id. at 4.

         REFUSAL OF NEW SHOES

         Simpson claims he has been unable to receive new shoes and is forced to walk around with "holes in his shoes and open sores on his feet." Simpson alleges that the standard shoe provided by the Department of Corrections ("DOC") are "rubber soled socks with support" and after an inmate goes through four pairs in one year, the DOC charges $10.00 for additional shoes. Id. Simpson argues that he has been to sick call to talk with nurses, including Missy Tolsma-Hanvey, several times about the open sores on his feet. He claims he goes to the sick call regarding his "insulin mis-dosage, but nurses refuse to schedule him to see Dr. Walinga." Id.

         Simpson has "been told that there have been many inmates with diabetes who have suffered amputations as a result of sores" and allegedly Health Services refuses to treat. Id. at 4-5. Simpson claims that "diabetics are apparently simply another inconvenience involved in prison administration." Id. at 5. Simpson has requested proper footwear to protect his feet from further deterioration and Unit Manager Josh Klimek ("Klimek"). Simpson claims Klimek is in charge of assessing the need for diabetic footwear and asserts that Klimek is not a medical doctor. Id. Simpson claims that Klimek has refused to order him diabetic footwear. Id.

         BLOOD SUGAR CHECKS AND RECREATION

         Simpson alleges that blood sugar checks are held at 10:15 am everyday and that one must eat shortly after taking insulin, so they don't go into shock. Id. Simpson argues that the blood sugar checks conflict with the weekday recreation time for his unit which is held at 10:00 am. Id. When Simpson told Klimek about the conflicting times, Klimek allegedly responded that "he can go to rec at another time or simply skip blood sugar checks." Id. Simpson claims that he cannot follow that plan because exercise is a natural way to control his blood sugar levels but he can not skip the blood sugar check. Id. Simpson argues that this places a significant barrier on his ability to exercise and he has filed an ADA accommodation request with Associate Warden Reyes ("Reyes") but it has not been answered. Id.

         UNSANITARY CONDITIONS

         Simpson is housed in West Crawford hall and claims that there is no ventilation to circulate fresh air into the rooms Id. at 5-6. Simpson claims that the circulation is especially an issue in the bathrooms which were designed for 40 students per floor but has been serving 70 inmates for thirty years. Id. at 6. Simpson alleges there are three shower heads in a small room and due to constant water and humidity the paint is peeling, plaster has fallen from the wall, and mold/mildew grow on most surfaces. Id. Condensation drips on the toilets and dampens the toilet paper and the user. Id.

         Simpson alleges that there have been several clogged drain incidents, with the most recent occurring on September 4, 2018. Id. "As of this date, more than six weeks later, there are still feces, toilet paper, and urine in the basements from the overflow which has not been cleaned up. Simpson claims that inmates are required to walk through this sewage to store and retrieve supplies form the basement storage area." Id. Simpson alleges that these conditions aggravate his respiratory issues and after he spoke to Klimek about the smell Klimek allegedly responded with" '[i]f you don't like it, don't come to prison.'" Id.

         Simpson claims that Klimek and other staff have refused to give Simpson grievance forms to address the failure of sewage cleanup because" 'it's the inmates' fault this keeps happening.'" Id. Furthermore, Simpson alleges that because of the smell the officers keep the building doors open and the hallways become as low as the mid-40s. Id. "In warmer weather, it was not unknown for vermin, such as mice, ...


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