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Brakeall v. Leidholt

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

September 27, 2019

WINSTON GREY BRAKEALL, Plaintiff,
v.
MIKE LEIDHOLT, SECRETARY OF CORRECTION FOR THE STATE OF SOUTH DAKOTA; IN HIS INDIVIDUAL CAPACITY; ROBERT DOOLEY, CHIEF WARDEN FOR THE SOUTH DAKOTA DEPARTMENT OF CORRECTIONS; IN HIS INDIVIDUAL CAPACITY; DARIN YOUNG, WARDEN AT SDSP; IN HIS INDIVIDUAL CAPACITY; DERRICK BIEBER, UNIT MANAGER AT SDSP; IN HIS INDIVIDUAL CAPACITY; TIM MEIROSE, UNIT MANAGER AT SDSP; IN HIS INDIVIDUAL CAPACITY; RYAN VANDERAA, SDDOC EMPLOYEE EMPLOYED AT SDSP, JPA, AND/OR UNIT C IN SIOUX FALLS, SOUTH DAKOTA; WILLIAM ALLEN, CORRECTIONAL OFFICER WITH THE RANK OF CORPORAL AT SDSP; IN HIS INDIVIDUAL CAPACITY; LT. R. BROWN, SDDOC EMPLOYEE EMPLOYED AT SDSP, JPA, AND/OR UNIT C IN SIOUX FALLS, SOUTH DAKOTA; IN HIS INDIVIDUAL CAPACITY; MAJOR STEVE BAKER, SDDOC EMPLOYEE EMPLOYED AT SDSP, JPA, AND/OR UNIT C IN SIOUX FALLS, SOUTH DAKOTA; IN HIS INDIVIDUAL CAPACITY; AND LT. CHAD ROTERT, SDDOC EMPLOYEE EMPLOYED AT SDSP, JPA, AND/OR UNIT C IN SIOUX FALLS, SOUTH DAKOTA; IN HIS INDIVIDUAL CAPACITY; Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND ORDER ON SUBSTITUTION

          KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE

         Plaintiff, 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.

         ORDER ON SUBSTITION

         Under 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.

         FACTUAL BACKGROUND [1]

         Viewing the evidence in light most favorable to Brakeall, as the non-moving party, the facts are:

         On 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 ¶ 29.

         Brakeall 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.

Id.

         Defendants 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.

         As 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. Id.

         Later, 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. Id.

         I. First Assault

         On 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.

         Brakeall 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.

         Brakeall 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.

         Defendants 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.

         After 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.

         For 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.

         In 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 him. Id.

         II. Second Assault

         On 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 fractured. Id.

         After 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.

         III. The Third Assault

         Brakeall 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.

         There 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.

         Defendants 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. Id.

         That 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. Id.

         IV. Overtime and Staffing

         Brakeall 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.

         The 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 required. Id.

         After 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. Id.

         Under 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 ...


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