Murphy v. Kaemingk et al

Filing 9

ORDER DISMISSING COMPLAINT IN PART re 1 Complaint - Prisoner Civil Rights (42:1983) filed by James Murphy. Signed by U. S. District Judge Lawrence L. Piersol on 1/22/14. (CMS)

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES MURPHY,

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Plaintiff,
vs.
DENNIS KAEMINGK, Sec. Of Corrections,
Pierre, SD;
DARRIN YOUNG, Warden, South Dakota
State Penitentiary;
JENNIFER WAGONER, Deputy Warden,
South Dakota State Penitentiary;
BOB DOOLEY, Warden of Prison
Operations, State of South
Dakota/Springfield;
JESSICA COOK, West Hill Unit Manager,
South Dakota State Penitentiary;
HEATHER BOWERS, West Hill Charge
Nurse, South Dakota State Penitentiary;
MAJOR VANBORN, Special Security
Supervisor, South Dakota State Penitentiary;
ALL SOUTH DAKOTA STATE
PENITENTIARY MEDICAL STAFF,
working in South Dakota State Penitentiary
Hill Medical Department Since 2011 on All
Shifts;
ASSOC. ALLCOCK;
SCOTT BOLLINGER; and
ASHLEY MCDONALD,
Defendants.

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FILED
JAN 2 2 20t~

CiV.13-4134-~~

ORDER DISMISSING
COMPLAINT IN PART

Plaintiff, James Murphy, is an inmate at the South Dakota State Penitentiary (SDSP) in
Sioux Falls, South Dakota. Murphy filed a pro se civil rights lawsuit pursuant to 42 U.S.C.
§ 1983 and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Dockets 1,2. On November 27,2013, the Court granted Murphy leave to proceed in forma

pauperis and ordered him to pay an initial partial filing fee by December 30,2013. Docket 5.
The Court then granted Murphy an extension oftime to file his initial partial filing fee (Docket
7), and Murphy paid the initial partial filing fee on January 13, 2014 (Docket 8).
The Court must now screen Murphy's complaint to determine whether any claims
should be dismissed. Pursuant to the PLRA, the Court must dismiss an action or any portion
thereof ifthe prisoner has raised a claim that "(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." 28 U.S.c. § 1915(e)(2)(B)(i}-(iii).
STANDARD OF REVIEW
A claim "is frivolous where it lacks an arguable basis in law or in fact." Neitzke v.

Williams, 490 U.S. 319,325 (1989). The court may, therefore, dismiss a claim as frivolous
when it is ''based on an indisputably meritless legal theory" or where the factual contentions "are
clearly baseless." Id. at 327. The court may dismiss a complaint for failure to state a claim when
the plaintiff fails to plead "enough facts to state a claim to reliefthat is plausible on its face."

Bell Atl. Corp. v. T-wombly, 550 U.S. 544, 570 (2007). In reviewing a complaint for failure to
state a claim, "[t]he court must presume that the factual allegations in the complaint are true and
accord all reasonable inferences from those facts to the [pleader]." Valiant-Bey v. Morris, 829
F.2d 1441, 1443 (8th Cir. 1987) (citing Holloway v. Lockhart, 792 F.2d 760, 762 (8th Cir.
1986».
Pro se complaints, "'however inartfully pleaded,' [are] held to 'less stringent standards
than formal pleadings drafted by lawyers.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976)
(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972»; see also Frey v. City ofHerculaneum,

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44 F.3d 667, 671 (8th Cir. 1995) (noting that "civil rights pleadings should be construed
liberally"). Nonetheless, a pro se complaint must comply with the minimal requirements set forth
in the Federal Rules of Civil Procedure, which specifically require pleadings to contain "a short
and plain statement ofthe claim showing that the pleader is entitled to relief." Fed. R. Civ. P.
8(a)(2). Although a pro se complaint need not contain detailed factual allegations, it must
contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do." Twombly, 550 U.S. at 555. Simply stated, a pro se complaint must
"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, nor will [it] construct a legal
theory that assumes facts that have not been pleaded." Id. (citing Dunn v. White, 880 F.2d 1188,
1197 (10th Cir. 1989)). Ifthe complaint does not contain these bare essentials, dismissal is
appropriate. Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985).

DISCUSSION
"[T]o state a claim for relief under § 1983, a plaintiff must allege sufficient facts to show
'(1) that the defendant(s) 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) (quoting Schmidt v. City ofBella Villa, 557 F.3d 564,571 (8th
Cir. 2009)). In the instant case, Murphy claims that defendants violated the Americans with
Disabilities Act, acted with deliberate indifference toward a serious medical need, and failed to
protect him from threats to his safety. Docket 1 at 5-7. To remedy these alleged constitutional
violations, Murphy requests that the Court enter an order requiring defendants to "make the
proper Modification and alterations in the areas that are in non compliant status and to install

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the proper equitment [sic] that will insure all inmates that Are ADA entitled Inmates." Docket 1
at 8. Murphy also requests an injunctive order prohibiting defendants from moving, retaliating,
harassing, or threatening him with regard to this action. Id. Finally, because he has suffered
mental anguish and cruel and unusual punishment, Murphy requests $250,000 in damages from
each defendant. Id.

I.

Murphy Has Not Alleged Facts Sufficient to Support A Claim under the
Americans with Disabilities Act.
''Title II of the ADA, ... prohibits qualified individuals with disabilities from being

excluded from participation in or the benefits ofthe services, programs, or activities of a public
entity." Randolph v. Rodgers, 170 F.3d 850, 857 (8th Cir. 1999). "A qualified individual with a
disability is defined as any person who 'meets the essential eligibility requirements for the receipt
of services or the participation in programs or activities provided by the public entity.'" Id.
(citing 42 U.S.c. § 12131(2». As held by the Supreme Court of the United States, state prisons
qualify as a "public entity" and must therefore comply with Title II of the ADA. Id. (citing Pa.

Dep't ofCorr. v. Yeskey, 524 U.S. 206 (1998». ''To state a prima facie case under the ADA, a
plaintiff must show: 1) he is a person with a disability as defined by statute; 2) he is otherwise
qualified for the benefit in question; and 3) he was excluded from the benefit due to
discrimination based upon disability." Id. at 858 (citations omitted).
In the instant case, Murphy alleges that defendants have failed to comply with ADA
guidelines with respect to jail cells, showers, legal aide, classrooms, the chapel, the recreational
area, and the medical department. Docket 1 at 5. According to Murphy, defendants' failure to
comply with the ADA poses risk to inmates such as himself and could prevent him from taking

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upper classes or being seen by the medical department. Id. Significantly, however, Murphy has
not alleged that he is a person with a disability as defined by statute, nor has he alleged that he is
otherwise qualified for the benefits in question. The Court therefore concludes that Murphy has
failed to sufficiently allege an ADA claim for purposes of surviving initial review under 28
U.S.C. § 1915. Accordingly, Murphy's ADA claim is dismissed.

II.

Murphy Has Alleged Facts Sufficient to Support A Claim for Deliberate
Indifference to Medical Needs under the Eighth Amendment.
"A prisoner's Eighth Amendment rights are violated ifprison 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). "In order to state a cognizable claim, a
prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs." Estelle, 429 U. S. at 106. More specifically, a prisoner must allege

"'(1) that [he] suffered [from] objectively serious medical needs and (2) that the prison officials
actually knew ofbut dehberately disregarded those needs. '" Jolly v. Knudsen, 205 F.3d 1094,
1096 (8th. Cir. 2000) (quoting Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997».
"A serious medical need is 'one that has been diagnosed by a physician as requiring
treatment, or one that is so obvious that even a layperson would easily recognize the necessity
for a doctor's attention.'" Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997) (quoting

Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995». To demonstrate deliberate
indifference, '''[t]he prisoner must show more than negligence, more even than gross negligence,
and mere disagreement with treatment decisions does not rise to the level of a constitutional
violation.'" Jolly, 205 F.3d at 1096 (quoting Estate ofRosenberg by Rosenberg v. Crandell, 56

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F.3d 35,37 (8th Cir. 1995)). "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) (citing Estelle, 429 U.S. at 104-05).
In the present case, Murphy alleges that he is diabetic. Docket 1 at 6. Nonetheless,
defendants have "changed and cancelled medical orders," and as a result, Murphy is no longer
receiving a special diet. ld. Without a special diet, Murphy represents that he is "in danger of
going in to a diabetic shock." ld. Furthermore, Murphy is experiencing black outs, which the
defendants have allegedly refused to address. ld. According all reasonable inferences from these
facts to Murphy, the Court finds that Murphy has alleged the first element of a claim for
deliberate indifference to a serious medical need-Murphy has indicated that he is diabetic and
therefore suffers from an objectively serious medical need. Moreover, the Court finds that
Murphy has alleged facts sufficient to support the second element of a claim for deliberate
indifference to a serious medical need-Murphy has alleged that defendants acted with
dehberate indifference toward his condition by cancelling his special diet and refusing to
administer a CT scan to examine his black outs. Accordingly, Murphy's claim for deliberate
indifference to a serious medical need survives initial review under 28 U.S.C. § 1915.

III.

Murphy Has Alleged Facts Sufficient to Support A Claim for Failure to Protect
under the Eighth Amendment.
The Eighth Amendment imposes a duty on the part of prison officials to "'take

reasonable measures to [protect prisoners from] substantial risks of serious harm.'" Prater v.

Dahm, 89 F.3d 538,541 (8th Cir. 1996) (quoting Reece v. Groose, 60 F.3d 487, 491 (8th Cir.

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1995)). That duty "requires only that prison 0 fficials 'take reasonable measures to abate
substantial risks of serious harm, of which the officials are aware.'" ld. Explicitly included
within that duty is the prison officials' duty "'to protect prisoners from violence at the hands of
other prisoners. '" Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting Cortes-Quinones v.

Jimenez-Nettleship, 842 F.2d 556,558 (1st Cir. 1988)).
Here, Murphy alleges that defendants have ignored death threats, which he has received
from "a white pride gang." Docket 1 at 7. According to Murphy, this group of inmates has also
caused disturbances in the cell hall and kitchen, and on particular occasions, has thrown hot
coffee and urine on him.ld. Not only does Murphy allege that defendants have failed to protect

him from these inmates, but Murphy also alleges that defendants have informed the white pride
gang about the complaints Murphy has filed against them. ld. As a result of defendants' failure
to protect him from threats to his safety, Murphy has suffered burns and scars, and he lives in
constant fear. ld. Based on this information and according all reasonable inferences from these
facts to Murphy, the Court finds that Murphy has pleaded facts sufficient to support a failure to
protect claim for purposes of surviving initial review under 28 U.S.c. § 1915. Accordingly, it is
ORDERED that Murphy's complaint is dismissed in part pursuant to 28 U.S.C. § 1915.
All claims are sufficiently pleaded to survive initial review under § 19] 5, except the Americans
with Disabilities Act claim, which is dismissed without prejudice.
IT IS FURTHER ORDERED that the clerk of court 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

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pleading to the complaint on or before 21 days following the date of service.
IT IS FURTHER ORDERED that Murphy will serve upon defendants, or, if appearance
has been entered by counsel, upon their counsel, a copy of every further pleading or other
document submitted for consideration by the court. He will 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 defendants or their counsel.
Dated this 22nd day ofJanuary, 2014.
BY THE COURT:

ATTEST:

JOSEPH HAAS, ~

BY:~~/

Deputy

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