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Kader v. Dooley

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

September 5, 2019

BRIAN E. KADER, Plaintiff,




         Plaintiff, Brian E. Kader, is an inmate at Mike Durfee State Prison (MDSP) in Springfield, South Dakota. On August 2, 2017, Kader filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Docket 1. The court screened Kader's original complaint under 28 U.S.C. § 1915A and dismissed it without prejudice. Docket 11. On February 16, 2018, Kader moved to amend his complaint and for reconsideration of the court's order dismissing the case. Dockets 15, 16. The court screened Kader's amended complaint under 28 U.S.C. § 1915A and dismissed Kader's complaint in part and directed service in part. Docket 18. The court denied Kader's motion for reconsideration. Id. The amended complaint was docketed on September 25, 2018. Docket 19.

         In Kader's amended complaint, he alleged that defendants Mike Grosshuesch and Unknown Mailroom Staff at MDSP and the South Dakota State Penitentiary (SDSP) violated Kader's First Amendment rights by censoring his magazine subscriptions. Docket 19 ¶¶ 56-57, 61. Kader also alleged that defendants Robert Dooley and Josh Klimek are subjecting Kader to cruel and unusual punishment in violation of his Eighth Amendment rights. Id. ¶ 60.

         Defendants Dooley, Grosshuesch, and Klimek filed an amended answer to Kader's amended complaint. Docket 38. Defendants now move for summary judgment based on qualified immunity. Docket 55. Kader filed a motion for sanctions, a motion to extend the time to answer the motion for summary judgment, and a motion to appoint counsel. Dockets 71, 74, 75. The court denied Kader's motion for sanctions and motion to appoint counsel but granted the motion to extend, so Kader's response was due by May 3, 2019. Docket 76. On March 28, 2019, Kader moved for reconsideration of the court's order on the motion for sanctions and to appoint counsel. Docket 78. Kader still has not responded to the motion for summary judgment.


         Viewing the evidence in the light most favorable to Kader as the nonmoving party, including the defendants' statement of undisputed material facts, which Kader did not object to, the facts are:[1]

         Kader states that defendants Dooley and Klimek are “subjecting inmates to cruel and unusual punishment by failing to provided [sic] some type of ventilation or air conditioning in the housing units.” Docket 19 ¶ 60. Kader claims he has pulmonary disease and takes numerous medications for his condition. Id. ¶ 41. Kader alleges that the excessive heat and humidity make it difficult for him to breathe, hampering “his body's ability to thermoregulate.” Id. at ¶¶ 41, 43. Kader claims that he “chooses not to eat on many days due to the heat index, which is much higher inside the dining hall, due to the dishwashers running constantly.” Id. ¶ 44.

         Kader currently resides in the West Crawford Hall at MDSP. Id. ¶ 40. West Crawford Hall has large exhaust fans installed and mounted in the windows on each end of the hallways. Docket 68 ¶ 35; see also Dockets 56-5, 56-70. There are mounted wall fans in each individual housing unit to help circulate the air, and inmates housed in West Crawford Hall can have portable fans to help circulate the air within the unit. Docket 68 ¶ 36. Inmates can, if determined by Health Services to be medically necessary, have a portable air conditioning unit in their room. Id. ¶ 37. Also, if an inmate has a medical condition that is exacerbated by the heat, air-conditioned rooms can be provided upon a physician's order. Id. ¶ 43. Kader states that there is no air-conditioning or ventilation in the dining hall, only fans. Docket 19 ¶ 44. Kader says that “when the heat index is high, the dining hall becomes intolerable.” Id. Although not air-conditioned, the dining hall is equipped with an air-handling system and has fans mounted on the walls near the exit doors to help circulate the air. Docket 68 ¶ 66.

         MDSP staff monitor and document the temperatures inside the housing units daily during the summer months and adjust inmate movement as needed. Id. ¶ 38. During the period of July 11, 2017, to August 31, 2017, the temperatures recorded in West Crawford Hall reached or exceeded 90 degrees on two occasions. Id. ¶ 40; see also Dockets 56-6-56-56. On July 17, 2017, the recorded high-temperature inside West Crawford Hall was 91 degrees. Docket 68 ¶ 41; see also Docket 56-12. On July 25, 2017, the recorded high-temperature inside West Crawford Hall was 90 degrees. Docket 68 ¶ 41; see also Docket 56-20. The recorded temperatures inside West Crawford Hall did not exceed 100 degrees between July 11 through July 29, 2017, or between July 31 through August 31, 2017. Docket 68 ¶¶ 40-42; see also Dockets 56-6- 56-56. The temperature for July 30, 2017, is unknown to this court, because the daily temperature log for that date was not presented with the other temperature log exhibits. See Dockets 56-6-56-56.

         Kader has never asked for or received a medical order for an air-conditioned room. Docket 68 ¶ 44. Kader has not indicated or complained to Health Services that the temperatures in West Crawford Hall have “inhibit[ed] his breathing or hamper[ed] his body's ability to thermoregulate.” Id. ¶ 45; see also Dockets 56-57-56-62. Health Services recorded Kader's respiratory effort as “unlabored” on several occasions. Docket 68 ¶ 48; see also Dockets 56-57- 56-59. Kader told medical staff repeatedly that “his breathing has been excellent, ” and “he can't even remember when his peak flows were so good.” Docket 68 ¶ 50; see also Dockets 56-58, 56-59. Kader also indicated to medical staff that he “maybe uses his rescue inhaler four times a month” and that he does not have any respiratory issues during the day. Docket 68 ¶ 54; see also Dockets 56-59, 56-60.

         Kader states that defendant Klimek “has instituted a policy requiring inmates to keep their doors closed until count clears, ” which Kader says is “ridiculous” and “cruel.” Docket 19 ¶ 51. OM 3.3.A.6, Count Principles and Procedures, implemented by former Warden Dooley, states “after the inmate is identified, he will return to his room and close the door . . . until count is cleared.” Docket 68 ¶¶ 62-63. The policy was implemented to keep noise levels down until prison staff finishes count and the process typically takes five (5) to ten (10) minutes. Id. ¶¶ 64-65.

         Along with his allegations of heat and lack of ventilation, Kader also asserts that MDSP is overcrowded and that defendants have “added to the population of West Crawford Hall and the entire Mike Durfee State Prison facility without increasing the available restroom facilities.” Docket 19 ¶ 47. Kader claims that “there are only three toilets, three urinals, and five sinks in the restrooms” in West Crawford Hall and that “[o]vercrowding and lines to relieve oneself are common.” Id. Kader also alleges that “the Department of Corrections has further limited inmates' shower facilities” when it made a handicap shower. Id. ¶ 48.

         There are sixty-six inmates housed on the first floor of West Crawford. Docket 68 ¶ 70; see also Docket 19 ¶ 47. There are three urinals, four toilets, and five sinks located on each floor of West Crawford Hall. Docket 68 ¶ 69; see also Dockets 56-63-56-65. Kader has not complained to Unit Staff or filed any grievances stating that the “lines to relieve oneself” have caused him to wait long periods of time to use the toilet or use the shower. Docket 68 ¶¶ 71-72. There are no records indicating that Kader has ever reported to Unit Staff that he was unable to use the toilet or shower because of waiting in line. Id.

         Kader alleges that “[w]hen the showers are running in West Crawford, there is no ventilation to remove the humidity and condensation from the hot water.” Docket 19 ¶ 45. Kader also claims that “the shower is full of black mold and mildew and the paint is peeling off the ceiling due to being improperly installed and constantly wet.” Id. ¶ 46. A new exhaust fan was recently installed in all the showers and is believed to help alleviate the humidity. Docket 68 ¶ 74. The showers are cleaned regularly with cleaning solutions containing bleach. Id. ¶¶ 75-76; see also Docket 56-66. The MDSP showers are inspected annually by both the Office of State Engineer and the Office of Risk Management for “hazard identification.” Docket 68 ¶ 77. Neither office has reported or mentioned the showers being full of black mold. Id. Kader has not reported to Health Services any symptoms stemming from the alleged mold and has not sought medical treatment. Id. ¶ 78.

         Finally, Kader alleges that he was subjected to cruel and unusual punishment because of the laundry services at MDSP. Docket 19 ¶ 49. Kader asserts that “laundry is frequently returned wet and unclean” because the “laundry workers are forced to overload machines and cut the drying cycles short because there is too much laundry and not enough machines.” Id. When prison officials were notified of complaints that laundry was being returned to inmates still damp or wet, the officials determined that the problem was the “result of prisoners over-stuffing their laundry bags or tying the bag improperly.” Docket 68 ¶ 93. On around May 23, 2017, inmates were notified that “in an effort to ensure laundry is returned to the housing units dry, effective immediately, any laundry bag received in laundry that exceeds the listed number of items will be returned to the housing unit unlaundered.” Id. ¶¶ 94-95; see also Docket 56-69. The inmates were also notified that “[a]ny bag that is tied tightly at the bottom of the bag prohibiting the items from drying will be returned unlaundered.” Id. MDSP has a protocol of washing and drying inmate laundry so it is transported back to inmates clean. Docket 68 ¶¶ 82-92.

         Kader asserts that “[d]ue to numerous inmate complaints about underwear coming back unclean, instead of fixing the problem, the Department of Corrections began issuing brown boxers to hide urine and fecal stains.” Docket 19 ¶ 50. Prison Industries at SDSP decided to switch to brown fabric when making boxers so that there was only one fabric of boxer shorts used by all inmates regardless of where they are housed. Docket 68 ¶¶ 100-104. The decision was made because it would be more efficient to create the boxers out of just one color for all the inmates housed within the custody of the South Dakota Department of Corrections (SDDOC). Id. The brown fabric now used is believed to be a better quality of material than the previous boxers made with white fabric. Id.

         On January 24, 2018, Kader, in an Informal Resolution Request, complained that his laundry “always comes back wet” and “also comes back occasionally more stained and soiled in appearance than when it left.” Id. ¶ 96; see Docket 56-67. On January 30, 2018, an Informal Resolution Response to Kader indicated “[i]f laundry bags are packed according to policy by all inmates, laundry would be returned clean and dry.” Docket 68 ¶ 97; see Docket 56-68. Kader's Institutional File reflects Kader did not file a Request for Administrative Remedy, which is the second step of the grievance process in place at MDSP. Docket 68 ¶ 98.


         Pro se filings must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). Even with this construction, “a pro se [filing] must contain specific facts supporting its conclusions.” Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985); see also Ellis v. City of Minneapolis, 518 Fed.Appx. 502, 504 (8th Cir. 2013). Summary judgment on all or part of a claim is appropriate when the movant “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also In re Craig, 144 F.3d 593, 595 (8th Cir. 1998). The moving party can meet its burden by presenting evidence that there is no dispute of ...

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