United States District Court, D. South Dakota, Southern Division
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND ORDER ON
E. SCHREIER, UNITED STATES DISTRICT JUDGE
Winston Grey Brakeall, filed this lawsuit under 42 U.S.C.
§ 1983. Dockets 1, 40. Defendants filed their first
motion for summary judgment based on qualified immunity on
June 19, 2017. Docket 67. This court denied the motion.
Docket 98. Defendants filed a second motion for summary
judgment on November 11, 2018. Docket 121. Brakeall opposes
this motion. Docket 175.
Federal Rule of Civil Procedure 25(d), the court “may
order substitution at any time” when a public officer
is replaced. In January 2019, Governor Kristi Noem named Mike
Leidholt as the new Secretary of the Department of
Corrections. This court substitutes Mike Leidholt for
defendant Dennis Kaemingk.
the evidence in light most favorable to Brakeall, as the
non-moving party, the facts are:
November 4, 2014, Brakeall was taken into custody on a
warrant from the South Dakota Board of Pardons and Paroles
(the Board). Docket 98 at 2. On December 11, 2014, Brakeall
was transferred to East Hall at the Jameson Prison Annex
(JPA) in the South Dakota State Penitentiary (SDSP).
Id. After arriving at JPA, Brakeall told the
admitting officer that he would not be safe in the general
population in East Hall. Id. Brakeall then spoke to
Unit Manager Tim Meirose and Brakeall informed Meirose that
he would be at risk in the general population in East Hall.
Id. Brakeall alleges that in 2014, Meirose knew that
he was a “high-profile, high-risk, largely passive sex
offender who had been assaulted previously.” Docket 181
claims that he immediately told Meirose about his fears of
assault and claims that Meirose said that his
“cellmate, Paul Hansen, was a ‘good guy.’
” Id. ¶ 30. Brakeall claims at this
point, Meirose did not offer protective custody. Id.
Also, Brakeall alleges that:
Within minutes of reaching the cell, strange inmates were at
the door asking why I was on their tier, when I was leaving,
and how much I would pay not to get stabbed. I immediately
reported this to staff and was told to ‘tough it
out’ and ‘give the room a try.’ Nothing was
done by Meirose or any staff member to protect me.
allege that Brakeall did not communicate a specific threat to
Meirose and that he did not give more details or identify a
specific inmate that he feared. Docket 122 at 11. Meirose
told Brakeall that no other cells were available and offered
him the options of accepting the assigned cell or going to
the special housing unit (SHU) for refusing housing, a major
rule violation. Docket 98 at 2. In order to protect
his possibility of parole, Brakeall accepted his housing
assignment in East Hall. Id.
Brakeall got ready for breakfast the next morning, he heard
other prisoners call him “Chomzilla, ” a
sobriquet derived from “child molester, ” which
references Brakeall’s underlying conviction, and
“Godzilla, ” which references Brakeall’s
immense size (Brakeall is 6’ 9”, 330 pounds).
Id. at 3. This was an insult used against Brakeall
during the sixteen years when he was previously incarcerated
at SDSP. Id. After breakfast, Brakeall was
confronted by his cellmate, a gang member. Id. The
cellmate said he had been ordered to assault Brakeall, but
had refused the order to save his parole eligibility.
Brakeall’s cellmate was beaten by the gang for refusing
to assault him. Id. Brakeall told prison staff about
the threats against him, but nothing was done. Id.
Brakeall did not want to cause trouble because he also wanted
to save his parole eligibility. Id. At the time, he
was still awaiting his parole revocation hearing.
Id. Brakeall’s cellmate told him that other
prisoners were spreading rumors about Brakeall, saying he had
been re-incarcerated because he had committed another sex
offense. Id. The cellmate claimed the rumors were
spread to encourage prisoners to assault Brakeall.
December 13, 2014, Brakeall was assaulted in the SDSP dining
hall. Id. After the assault, while being evaluated
by health services, an unknown correctional officer gave
Brakeall three options: he could go back to his cell, he
could refuse housing, or he could ask for protective custody
in the SHU. Id. The officer told Brakeall that
seeking protective custody “gives you kind of a
reputation as a punk.” Id. Thus, Brakeall
returned to his cell. Id.
claims he had to borrow another inmate’s grievance form
on Monday, December 15, 2014, in order to file a grievance
against Meirose. Docket 180 ¶ 87. Brakeall’s
cellmate in December 2014, Jerry Craig, submitted a
declaration stating he gave Brakeall a grievance form and
that he “believe[d] he turned it in at lunch on
Sunday.” Docket 176-1 ¶ 5. Brakeall claims when he
received a response he had just been transferred to parole.
Docket 180 ¶ 87. Brakeall alleges that Unit Coordinator,
Angie Steineke, refused to provide a form and said if
Brakeall wanted to fight prison issues while he was on parole
then he could go back to prison. Id. Brakeall
contends that he did not pursue the second stage because of
this threat. Id. Brakeall claims he lost the
grievance in 2015 when he moved to JPA. Id.
claims there is no true protective custody in the South
Dakota Department of Corrections (DOC). Docket 98 at 4. To
move into protective custody, an inmate must be willing and
able to identify the threatening individuals. Id.
Brakeall did not know the identities of the threatening
individuals. Id. Brakeall had not yet spent enough
time at SDSP to know or identify any of the gang members who
were threatening him. Id.
aver that SDSP has an Operational Memorandum in place to
protect inmates that believe they are in danger. Id.
Defendants state, “If an inmate believes he is in
danger he must notify a staff member who will immediately
notify the officer in charge. The inmate can make this
request without fear of being written up for a rule
violation.” Id. Brakeall also points out a
provision in the memorandum that reads, “If staff
becomes aware of an inmate’s need for protection, even
though not requested, the same procedure for requested
protective custody apply.” Id. Brakeall
acknowledges that the memorandum was in place but claims the
staff was inadequately trained to implement it. Id.
Defendants contend that an inmate has three options if they
believe they are in danger: (1) stay in current location; (2)
refuse housing and go to segregated housing (which is a rule
violation and the inmate will be written up); or (3) request
protective custody. Docket 129 ¶ 40. Defendants also
allege that the Special Investigative Unit (SIU) conducts an
investigation “to determine whether the inmate is in
danger.” Id. ¶ 42.
the December 13, 2014 assault, the assailant told the unknown
correctional officer that the threats against Brakeall from
gangs in East Hall were severe. Docket 98 at 4. The officer
then sent Brakeall to West Hall for his protection.
Id. Despite the DOC policy requiring an incident
report, no photographs of Brakeall’s injuries or
statements were taken by prison staff, and no incident report
was made. Id. at 4-5. Defendants aver that the
assailants are still unknown. Id. at 5. On December
14, 2014, Brakeall’s arrest warrant was dropped, and he
was placed on parole. Id. Two days later, he was
transferred to the Unit C Trustee facility in the Community
Transition Program (CTP). Id.
most of April 2015, Brakeall was held in JPA. Id. He
was threatened by other inmates and his belongings were
stolen. Id. Again he told prison staff what was
happening, but they did nothing. Id. Brakeall was
later returned to the CTP program. Id. But on
December 1, 2015, Brakeall was arrested again for failing a
polygraph test. Id. He was placed on administrative
detainer and moved to general population in JPA. Id.
The next day, he was transferred to East Hall. Id.
Brakeall warned several members of prison staff, including
Unit Manager Derrick Bieber, that he was in danger.
Id. Bieber was aware that Brakeall had been
previously assaulted in the East Hall shower in 2002.
Id. Brakeall again was given the option of accepting
his cell in East Hall or being written up and sent to the
SHU. Id. In order to save his parole eligibility, he
chose the former. Id.
January of 2016, two inmates told Brakeall that the gangs in
East Hall warned them not to associate with Brakeall and that
the gangs were going to assault Brakeall or extort protection
money from him. Id. at 6. They explained that
because of Brakeall’s size and the fact that he would
not fight back in order to protect his parole eligibility,
other prisoners planned to attack him to “make their
bones” without fear that he would fight back.
Id. Brakeall told Bieber about the threats and
Bieber said he would “look into it.” Id.
When Brakeall told other correctional officers about the
threats, they told him that without the names of inmates who
were going to attack him, they could do nothing to protect
February 1, 2016, Brakeall was assaulted again. Id.
He was in the recreation building, playing cards with another
inmate when he was struck from behind and knocked to the
floor. Id. There were no correctional officers in
the card room. Id. Brakeall believes that he was
beaten by three inmates for at least one minute, where the
assailants punched and kicked him in the head, back, and
torso. Id. at 6-7. Defendants contend that video
footage shows that two inmates assaulted Brakeall and the
attack lasted seventeen seconds. Id. at 7. The
attack did not stop until the assailants left on their own
accord. Id. By the time the assault ended, Brakeall
was bleeding profusely from his nose and head, and a fellow
inmate worried that Brakeall’s skull had been
the assault, Brakeall recovered his broken glasses and saw
that no correctional officers or staff were present.
Id. Brakeall, covered in blood and still bleeding,
found a correctional officer and told him about the attack.
Id. The officer called for an escort to take
Brakeall to health services. Id. After several
minutes, Lieutenant Ryan Vanderaa escorted Brakeall to health
services. Id. Brakeall told Vanderaa that he wanted
the attackers to be criminally charged because he was a
parolee on an administrative detainer, not an inmate.
Id. Vanderaa said that the attackers would be
charged and that pictures of Brakeall’s wounds and
statements about the attack would be taken. Id.
Health services bandaged Brakeall’s wounds.
Id. His injuries included:
[A] deep trauma nose bleed; right temple laceration; left
temple abrasion; extensive bruising and swelling of the left
ear; extensive bruising to both forearms; abrasions on his
right elbow; ‘goose eggs, ’ pain and swelling at
impact points across both temples, across the back and crown
of his skull, at the base of the skull where the spine
enters; muscular trauma to the neck, jaw, and torso; and
bruising which reached Plaintiffs lower back.
Id. While being seen by health services, Brakeall
complained of dizziness and nearly fell over multiple times.
Id. at 8. No. photos or statements were taken.
Id. After Brakeall was seen by health services,
Vanderaa handcuffed him and brought him to the SHU for
investigative purposes. Id. When they got to the
SHU, Vanderaa was told that the inmates who attacked Brakeall
were being taken to the SHU, so Vanderaa took Brakeall to the
SHU main gate and put him in a holding cell. Id.
Brakeall was still bleeding and asked prison staff for help,
but they did nothing. Id. Forty minutes later, SHU
Case Manager Lana Jackson came to the holding cell and told
Brakeall that he was going back to East Hall. Id.
After numerous attempts, the doctor stopped Brakeall’s
nose bleed. Id. The doctor ordered a CAT scan
because Brakeall could not remember whether he was hit in the
face, but the scan showed no fractures or internal
hemorrhages. Id. at 8-9.
The Third Assault
claims his first “noticeable interaction” with
Correctional Officer William Allen was when he was in route
to receive medical care after the February 1, 2016 assault.
Docket 180 ¶ 46. Brakeall states he “believes
Allen would have heard threats and harassment directed at
Brakeall from December 2015 to February 2016 while serving as
corporal in East Hall.” Id. After dinner on
February 1, 2016, inmate George Dominguez told Brakeall that
the gangs in East Hall wanted him out of East Hall and that
he would be attacked if he went to recreation. Docket 98 at
10. That night, a nurse came to Brakeall’s cell to
deliver medication and told him to go to health services the
next day. Id. Brakeall told the correctional officer
who escorted the nurse about Dominguez’s threats.
Id. The correctional officer told Brakeall to tell
staff in the morning. Id. On February 2, 2016, when
Brakeall tried to go to health services, a correctional
officer in East Hall told him nobody needed to see him in
health services. Id. When Brakeall told the
correctional officer about the threats against him, the
officer put his hand on his handcuffs and asked Brakeall,
“Do you want to refuse housing?” Id. at
10-11. Brakeall returned to his cell. Id. at 11.
Later that day, Brakeall went to recreation. Id.
were four correctional officers supervising over 200 inmates
and parolees in the recreation building. Id. at 11.
Allen was stationed at the gate, and Brakeall told him about
the most recent threats and that officers should keep their
eyes open. Id. According to Brakeall, Allen agreed
but did not ask any further questions. Id. Brakeall
alleges that Allen violated the operational memorandum for
when staff become aware of an inmate in danger. Id.
at 11. Brakeall remained close to the officers until the
threat was resolved. Id. Brakeall disputes the fact
and claims Allen never told him to return to his cell or
asked for more details about the threat. Docket 180 ¶
50. Brakeall claims that the “visible bruising from the
February 1 assault should have been adequate evidence to CO
Allen that the reported threats had merit and required
response.” Id. Brakeall claims that Allen was
aware that he had been assaulted the day before and that
Allen had “seen [his] lacerations cauterized and helped
clean up the blood.” Id. ¶ 53.
claim that Allen asked Brakeall to identify the person, or
persons, that he believed were going to harm him, but
Brakeall said he did not know. Docket 98 at 11. Then Allen
told him he could go to his cell to get away from the
situation. Id. Brakeall went to the walking track.
Id. There were no cameras or officers in the walking
track area. Id. Dominguez approached Brakeall.
Id. Brakeall thought Dominguez was going to deliver
an additional or more specific warning from a prison gang,
but instead struck Brakeall in the throat with his forearm.
Id. The strike raised a lump on the corner of his
jaw and bruised his throat. Id. Brakeall went to the
card room, found two officers there, and told them that
Dominguez had assaulted him. Id. The officers told
Brakeall to wait at the gate. Id. When Brakeall went
to the gate, Dominguez approached and began circling
Brakeall. Id. at 12. Officers arrived at the gate,
handcuffed Dominguez, and removed him from the recreation
building. Id. Then East Hall Case Manager Riley
DeGroot arrived to escort Brakeall back to East Hall.
Id. DeGroot said he could see a lump and bruising on
Brakeall’s throat where Dominguez had struck him.
Id. Brakeall told DeGroot that Dominguez assaulted
him because Dominguez feared the gangs in East Hall more than
he feared the correctional officers. Id. If he
assaulted Brakeall, Dominguez would be transferred out of
East Hall and away from the gangs without repercussion.
Id. DeGroot returned Brakeall to East Hall without
bringing him to health services, taking statements from
witnesses, or taking photos of Brakeall’s injuries.
afternoon, Brakeall told Bieber about the assault and asked
Bieber to put him on loss-of-recreation shower until the
situation “cooled down.” Id. Bieber
refused. Id. When Brakeall pressed Bieber to protect
him, Bieber said he would “look into it.”
Id. Bieber has not spoken to Brakeall since that
day. Id. Brakeall spoke to Allen and Vanderaa about
bringing charges against the attackers, but they said that
the Division of Criminal Investigation (DCI) would make those
decisions, and they did not know anything about it.
Overtime and Staffing
was incarcerated at SDSP from 1997-2005 and believes staffing
levels today are similar or less than what they were then.
Id. at 13. Yet defendants contend that the staff
level for East Hall was increased in July of 2014 and the
minimum staff levels for all units of the SDSP have been
increased since Young became warden. Id. Defendants
state that if a unit is below the minimum staffing level,
additional staff will be moved to that unit to assure the
minimum levels are complied with. Id.
prison will pay as much overtime as is necessary to fill
posts. Id. at 14. But Brakeall alleges that
excessive overtime has an adverse effect on staff and leaves
posts inadequately filled. Id. Brakeall also alleges
that, under the direction of Kaemingk, various accounting
tricks deflate occupancy levels and thus less staff is
the second assault, Brakeall alleges that while they waited
for the results of the scan, correctional officers Allen and
Zoss were discussing overtime work at the prison.
Id. at 9. Defendants dispute that staffing issues
were discussed in the presence of inmates. Id. Allen
said he expected to do over twenty hours of overtime that
week. Id. Both officers complained that supervisory
personnel, Kaemingk, Robert Dooley, and Young, were aware of
the staffing deficiencies but were unwilling to correct the
problems. Id. Allen and Zoss also discussed the
“stealing” of correctional officers from
recreation when an officer was needed to transport an inmate.
Id. The correctional officers stated that the group
assigned to the recreation building would not have been
enough even before some were “stolen.”
Id. Inmates later told Brakeall that SDSP was
operating with nine fewer officers than were required on
February 1, 2016. Id. He also learned that the staff
member responsible for monitoring the video feed in the
recreation building was playing games on her phone.
the 2016 Prison Rape Elimination Act (PREA) audit,
“[t]he staffing plan sets minimum required staffing for
all essential areas of the prison for each shift. Those
minimum staffing numbers are usually always met.”
Id. The minimum staffing level may not be met when
an emergency situation arises and staff responds to a
different area. Id. But defendants contend this is
rare and someone is reassigned to cover as soon as possible.
Id. Brakeall alleges that the ...