United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS
AND § 1915(A) SCREENING
Lawrence L. Piersol, United States District Judge
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.
TO PROCEED IN FORMA PAUPERIS
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)).
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
(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.
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.
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.
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).
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."
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.
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.
OF NEW SHOES
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.
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.
SUGAR CHECKS AND RECREATION
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.
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.
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
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, ...