Harp v. Mike Durfee State Prison

Filing 10

ORDER denying 4 Motion to Appoint Counsel; denying as moot 6 Motion for release of petition; granting 8 Motion for Leave to Proceed in forma pauperis; directing clerk to effect service and requiring defendants to answer. Signed by Chief Judge Karen E. Schreier on 1/20/2012. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
GEORGE HARP,
Plaintiff,
vs.
MIKE DURFEE STATE PRISON;
SOUTH DAKOTA STATE PRISON;
SOUTH DAKOTA DEPT. OF CORR.,
(D.O.C.), Superintendent, individual
and official capacity;
SOUTH DAKOTA PRISON MED.
DEPT.;
DOOLEY, Warden, Individual and
Official Capacity;
DR. WILINGA, Individual and official
capacity;
WEBBER, Warden So. Dak. St. Pr.;
and DR. REGERE;
Defendants.

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Civ. 11-4149-KES

ORDER GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS
AND DENYING MOTION TO
APPOINT COUNSEL AS
PREMATURE

Plaintiff, George Harp, is incarcerated at the South Dakota State
Penitentiary. Harp filed a pro se civil rights lawsuit against defendants in
which he argues they subjected him to cruel and unusual conditions in
violation of the Eighth Amendment. Harp moves for leave to proceed in forma
pauperis in his civil rights lawsuit against defendants. Harp also moves for
the appointment of counsel.
The Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915, requires
prisoners to make an initial partial filing payment where possible, even if in

forma pauperis status is sought. When an inmate seeks in forma pauperis
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) (internal
citations omitted). Determination of the partial filing fee is calculated
according to 28 U.S.C. § 1915(b)(1), which requires a payment of 20 percent
of the greater of:
(A)
(B)

the average monthly deposits to the prisoner’s account; or
the average monthly balance in the prisoner’s account for the 6month period immediately preceding the filing of the complaint or
notice of appeal.

Harp has indicated the average of the monthly deposits to his account is $15,
and the average monthly balance of his account is $75.06. Harp must make
an initial partial filing fee of $15.01, which is 20 percent of $75.06.
Accordingly, Harp is granted in forma pauperis status.
But the inquiry does not end there. The PLRA also requires this court to
“screen” Harp's complaint to determine whether it should be dismissed.
Section 1915 provides an action must be dismissed if the court determines
the claim “(i) is frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.”

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STANDARD OF REVIEW
The court must assume as true all facts well pleaded in the complaint.
Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995).
Also, “although liberally construed, a pro se complaint must contain specific
facts supporting its conclusions.” Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir.
1993) (citations omitted). A plaintiff’s complaint “does not need detailed
factual allegations . . . [but] requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). If it does not contain
these bare essentials, dismissal is appropriate. Beavers v. Lockhart, 755 F.2d
657, 663 (8th Cir. 1985). Twombly requires that a complaint’s factual
allegations must be “enough to raise a right to relief above the speculative
level on the assumption that all the allegations in the complaint are true.” Id.
at 1965; Abdullah v. Minnesota, No. 06-4142, 2008 WL 283693 (8th Cir.
Feb. 4, 2008) (citing Twombly and noting complaint must contain either direct
or inferential allegations regarding all material elements necessary to sustain
recovery under some viable legal theory).
It has long been recognized that “civil rights pleadings should be
construed liberally.” Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir.
1995). The complaint, however, must at the very least contain facts that state
a claim as a matter of law and must not be conclusory. Id. Broad and

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conclusory statements unsupported by factual allegations are not sufficient.
Ellingburg v. King, 490 F.2d 1270 (8th Cir. 1974). Finally, although pro se
complaints are to be construed liberally, “they must still allege facts sufficient
to support the claims advanced.” Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004). The court is not required to supply additional facts for a pro se
plaintiff, nor construct a legal theory that assumes facts which have not been
pleaded. Id. To state a claim for relief under § 1983, a plaintiff must allege
sufficient facts to show (1) that the defendants acted under color of state law,
and (2) that the alleged wrongful conduct deprived the plaintiff of a
constitutionally protected federal right. Zutz v. Nelson, 601 F.3d 842, 848 (8th
Cir. 2010) (internal citations omitted).
DISCUSSION
Although nearly illegible, Harp’s complaint appears to allege that the
conditions he was subjected to violated the Eighth Amendment’s prohibition
of cruel and unusual punishment and that he was denied medical treatment
in violation of the Eighth Amendment. Although Harp is currently
incarcerated at the South Dakota State Penitentiary in Sioux Falls, South
Dakota, he was previously incarcerated at Mike Durfee State Prison in
Springfield, South Dakota. Some of his claims pertain to his time at Mike
Durfee State Prison.

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It is well established that deliberate indifference to a prisoner’s serious
medical needs is prohibited by the Eighth Amendment. See Estelle v. Gamble,
429 U.S. 97, 106 (1976). “A prisoner’s Eighth Amendment rights are violated
if prison officials show ‘deliberate indifference’ to the prisoner’s ‘serious
medical needs.’ ” Olson v. Bloomberg, 339 F.3d 730, 735 (8th Cir. 2003)
(quoting Estelle, 429 U.S. at 106). The Eighth Circuit has interpreted this
standard to mean that a plaintiff must demonstrate: “(1) that he suffered from
objectively serious medical needs and (2) that the prison officials actually
knew of but deliberately disregarded those needs.” Jolly v. Knudsen, 205 F.3d
1094, 1096 (8th Cir. 2000). “A serious medical need is one that has been
diagnosed by a physician as requiring treatment or one that is so obvious
even a layperson would easily recognize the necessity for a doctor's attention.”
Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). “Deliberate indifference
may be manifested by prison doctors in responding to the prisoner’s needs or
by prison officials in intentionally denying or delaying access to medical care
or intentionally interfering with prescribed treatment.” Meloy v. Bachmeier,
302 F.3d 845, 849 (8th Cir. 2002).
Harp alleges that prison officials and doctors have denied him
medication he was prescribed on several occasions. “Dr. Wilinga at Mike
Durfee State Prison refused me necessary medications; stated I needed
medication but DOC Policy prohibited him from ordering it for me.” Id. at 5,

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¶ 3. Harp also claims he was refused prescribed medications while
incarcerated at the South Dakota State Penitentiary in Sioux Falls, South
Dakota. “Unit Mgr D.t. Munson at SDSP Sioux Falls refused me diabetic
[illegible] ordered by doctors saying, ‘They cost too much.’ ” Harp also claims
that “Dr. Regere at SDSP Sioux Falls refused me prescribed medication by
Sanford Hospital and Avera [illegible]. Drs say no DOC policy for [illegible]
inmate’s pain med.” Id.
Assuming that these allegations are true, Harp has pleaded sufficient
facts to survive initial review under 28 U.S.C. § 1915. Harp asserts that he
has been prescribed medication that prison officials and doctors refused to
provide, which would qualify as a serious medical need because his condition
“has been diagnosed by a physician as requiring treatment.” Coleman, 114
F.3d at 784. Thus, Harp’s medical treatment claims survive initial review
under § 1915.1

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Harp alleges he tried to exhaust administrative remedies, but he was
“refused process” and that he “tried but stimmied at all requests.” Docket 7 at
5, ¶ 5. Thus, it is not clear to the court whether Harp utilized the
administrative remedy process at Mike Durfee State Prison and the South
Dakota State Penitentiary. For certain of his claims, Harp wrote that he did not
exhaust his administrative remedies because the “same people handle remedy
that do accused acts.” Docket 7 at 6, ¶ 5. Thus, certain claims may be subject
to dismissal pursuant to 42 U.S.C. § 1997e(a). But because of the difficulty in
reading Harp’s handwritten pleadings, it is unclear and dismissal at this time
is inappropriate.
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Harp’s next claim alleges that he was subject to prison conditions
violative of the Eighth Amendment. Harp’s first claim is that “Mike Durfee
Warden allowed officers to assault and threaten [him].” Docket 7 at 4, ¶ 3.
The Eighth Amendment prohibits the infliction of cruel and unusual
punishment. U.S. Const. amend. VII. “The treatment a prisoner receives in
prison and the conditions under which he is confined are subject to scrutiny
under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994).
Prison official must provide humane conditions of confinement, including
protecting inmates from violence. See Jensen v. Clarke, 94 F.3d 1191, 1197
(8th Cir. 1996). Inflictions of pain without penological justification “constitute
cruel and unusual punishment forbidden by the Eighth Amendment.” Hope v.
Pelzer, 536 U.S. 730, 737 (2002). “Being violently assaulted in prison is
simply not ‘part of the penalty that criminal offenders pay for their offense
against society.’ ” Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452
U.S. 337, 347 (1981)).
A violation of the Eighth Amendment based on a failure to protect has
two parts. First, the conditions that result from the failure to protect the
inmate must pose a substantial risk of serious harm to the inmates. Farmer,
511 U.S. at 834. “This objective requirement ensures that the deprivation is
sufficiently serious to amount to a deprivation of constitutional dimension.”
Jensen, 94 F.3d at 1197. Second, the subject prison official must have

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exhibited a sufficiently culpable state of mind, that is, the prison official must
have been deliberately indifferent to a substantial risk of serious harm to the
inmates. See Farmer, 511 U.S. at 834. “[A] prison official cannot be found
liable under the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” Id. at 837. Harp
alleges that the Warden knowingly permitted correctional officers to threaten
and assault him. His claim is sufficiently pleaded to survive review under §
1915.
Harp next asserts that he was kept in the “hard cell naked with no food
or water for 48 hours on 30 occasions” and that “being paralyzed was unable
to obtain food, water, or medication.” Docket 7 at 5, ¶ 3. Harp does not
specify at which facility this treatment occurred. But Harp concedes he failed
to exhaust administrative remedies with respect to this claim because he was
“scared of retaliation same office [illegible] handle appeals.” Docket 7at 5, ¶ 5.
Thus, this claim is subject to dismissal pursuant to 42 U.S.C. § 1997(e),
which requires a prisoner to exhaust available administrative remedies before
bringing a § 1983 action challenging prison conditions. See Porter v. Nussle,

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534 U.S. 516 (2002) (holding that exhaustion is mandatory). Accordingly, this
claim is dismissed.
Harp also moves for the appointment of counsel to represent him. As
the factual record is insufficiently developed to analyze whether the
appointment of counsel will benefit both Harp and the court, his motion is
denied as premature. Harp also moves for the prison to release his petition
and prisoner trust account information so he can file them with the court
before the January 8, 2012, deadline. Because the requisite information has
been provided, Harp’s motion is denied as moot. Therefore, it is
ORDERED that Harp’s motion to proceed in forma pauperis (Docket 8)
is granted. Harp will make an initial partial filing fee of $15.01 before
February 21, 2012, made payable to the Clerk, U.S. District Court.
IT IS FURTHER ORDERED that Harp’s motion to appoint counsel
(Docket 4) is denied as premature, and Harp’s motion ordering the release of
his petition (Docket 6) is denied as moot.
IT IS FURTHER ORDERED that the institution having custody of the
plaintiff is hereby directed that whenever the amount in plaintiff’s trust
account exceeds $10, monthly payments that equal 20 percent of the funds
credited to the account the preceding month will be forwarded to the United
States District Court Clerk’s office pursuant to 28 U.S.C. § 1915(b)(2), until
the filing fee of $350 is paid in full.

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IT IS FURTHER ORDERED that the Clerk will cause service of the
complaint, summons, and this order upon defendants. All costs of service will
be advanced by the United States.
IT IS FURTHER ORDERED that defendants will serve and file an
answer or responsive pleading to the complaint on or before 21 days following
the date of the service.
IT IS FURTHER ORDERED that plaintiff will serve upon defendants, or,
if appearance has been entered by counsel, upon their attorney, a copy of
every further pleading or other document submitted for consideration by the
court. He shall include with the original paper to be filed with the Clerk of
Court a certificate stating the date and that a true and correct copy of any
document was mailed to defendant or its counsel.
Dated January 20, 2012.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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