Kinter v. Dooley et al
Filing
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ORDER GRANTING LEAVE TO AMEND. Kinter may file an amended complaint by June 4, 2016. If Kinter fails to comply with this order the court may, without further notice, dismiss his complaint with prejudice. Signed by U.S. District Judge Lawrence L. Piersol on 5/4/16. (DJP)
UNITED STATES DISTRICT COURT
.FILED
DISTRICT OF SOUTH DAKOTA
MAY 0 4 2016
SOUTHERN DIVISION
4: 16-CV-04048-LLP
THOMAS KINTER,
Plaintiff,
vs.
ORDER GRANTING
LEAVE TO AMEND
ROBERT DOOLEY,
Director of Prison Operations;
DARREN YOUNG,
Warden, SDSP;
TROY PONTO,
Associate Warden, Jameson Annex;
DENNIS KAEMINGK,
Secretary of Corrections;
C.O. THAYLOR,
Correctional Officer Jameson annex;
C.O. SHOEMAKER,
Correctional Officer, Jameson Annex;
SETH HUGHES,
Unit Manager, Jameson Annex;
JOSH KLIMEK,
Unit Manager, MDSP;
TAMMY DEJONG,
Unit Coordinator, MDSP;
Unknown DOC staff,
Unknown DOH staff,
Defendants.
Plaintiff, Thomas Kinter, is an inmate at the Mike Durfee State Prison in
Springfield, South Dakota. Plaintiff filed a pro se civil rights lawsuit pursuant
to 42 U .S.C. § 1983. Docket 1. The court has now screened Kinter's complaint
pursuant to 28 U.S.C. § 1915A. For the reasons stated below, Kinter is
granted leave to amend his complaint.
FACTUAL BACKGROUND
In December 2015, Kinter was incarcerated at the Jameson Annex of the
South Dakota State Penitentiary (SDSP). Docket 1 at if 14. On December 30,
2015, Kinter's cell was searched, and C.O. Shoemaker confiscated Kinter's
migraine medication. Id. at if 15. He asked Shoemaker to give him his
medication and take him to the medical department because he was having a
migraine, causing him severe pain. Id. at if 16.
He asked another corrections officer, C.O. Thayer, numerous times to
take him to medical and give him back his medication. Id. at ilil 18-20. Over
time, Thayer's response escalated from mocking Kinter to eventually opening
the cell and handcuffing Kinter. Id. at ilil 18-21. Thayer put Kinter in a holding
cell. Id. at il 22.
While in the holding cell, Kinter again asked to be taken to medical. Id. at
if 23. Thayer angrily pushed Kinter, and he fell back and hit the wall, knocking
him unconscious. Id. at ilil 23-24. Kinter was taken to the segregated housing
unit (SHU), barely conscious and asking to be taken to medical the entire time.
Id. at il 26.
When he arrived at SHU, Kinter was stripped searched. Id. at if 27. While
he was being searched, he heard correctional officers saying, "[P]ut him in with
Spotted Elk. [H]e will like that." Id. Kinter was celled with Spotted Elk. Id. at
if 28. Spotted Elk immediately began to threaten Kinter, saying that all white
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people are worthless. Id. Kinter could not sleep for fear of Spotted Elk, who
took Kin ter's food and would not allow him to get off the bunk or use the
bathroom. Id. at if 29. The next day, Spotted Elk began to push and slap
Kinter, threatening to kill him. Id. at if 30. Kinter called the correctional
officers, who brought him to a holding cell. Id. at if 31. When the correctional
officers tried to re-cell Kinter with Spotted Elk, Kinter refused and was written
up. Id. at iii! 32-33.
Kinter was in the SHU for five days. Id. at if 34. He was never taken to
medical. Id. He was never given care for his concussion. Id. While in the SHU,
Kinter's headaches were so bad that he couldn't eat, he became sick, he was
dizzy, and his vision was blurred. Id. at if 35.
While he was in the SHU, Kinter was given a hearing concerning his
punishment. Id. at if 48. Because of his injuries, he does not remember the
hearing. Id. He requested that a fellow inmate named Wyrich be called as a
witness. Id. at if 49. Prison officials refused. Id. They merely provided a written
statement from Kinter's cellmate. Id. Afterward, Kinter asked Seth Hughes, his
representative at the hearing, for grievance forms, so he could complain about
the hearing, but Hughes refused. Id. at if 50. Hughes told Kinter it did not
matter because Thayer had already been fired. Id. at if 51. Hughes was the
prison official who responded to Kinter's grievance. Id. at if 52.
After Kinter was released from the SHU, he went to sick call. Id. at if 38.
The medical department told him there was nothing they could do and
returned him to his cell. Id. at if 39. He went to medical at SDSP seeking
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treatment many more times but was never treated for his headaches. Id. at
ii 40.
In January 2016, Kinter was transferred to Mike Durfee State Prison
(MDSP). Id. at iJ 41. He has been to sick call many times at MDSP, but has not
received treatment he feels is adequate. Id. at iii! 42-43, 45. He had a CAT scan
taken, but was never called for the result. Id. at iJ 42. Besides this, he was only
given a cold washcloth to put on his head and Tylenol, which does not help his
pain. Id. at iii! 43, 45. Ever since he was knocked unconscious by Thayer, he
has had problems with memory loss that have affected his school work. Id. at
ii 47.
Kinter attempted to exhaust his administrative remedies at both SDSP
and MDSP. Id. at iJ 54. He received the forms necessary for his appeal too late,
and when he tried to file his appeal, he was told he was not allowed to appeal
any longer. Id. at
iii! 55-56, 60-62. Because of his transfer and the time it took
prison officials to respond to his grievance, he could not have timely filed his
appeals. Id. at iJ 63. Tammy DeJong also told him he could not grieve issues
that happened in the Jameson Annex of SDSP. Id. at iJ 57.
On April 6, 2016, Kinter filed this complaint. Id. He alleges that
defendants violated his Eighth amendment rights by denying him access to
medical care, taunting him, assaulting him, and housing him with a dangerous
cellmate. Id. at
iii! 68-70, 73. He alleges that his due process rights were
violated when he was sent to the SHU without breaking a prison rule, when he
was disciplined for refusing housing, when the prison did not call his witness
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and conducted the hearing when he was unable to understand or participate,
and when Hughes responded to his grievance concerning his disciplinary
hearing. Id. at ii 72, 74-75, 77. He alleges that his due process rights and his
right to petition the government were violated because defendats would not give
him grievance forms. Id. at ii 76.
LEGAL STANDARD
The court must accept the well-pleaded allegations in the complaint as
true and draw all reasonable inferences in favor of the non-moving party.
Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014). Civil rights
and pro se complaints must be liberally construed. Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citation omitted); Bediako v. Stein Mart, Inc., 354 F.3d 835,
839 (8th Cir. 2004). Even with this construction, "a prose complaint must
contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985); Ellis v. City of Minneapolis, 518 F. App'x 502, 504
(8th Cir. 2013). Civil rights complaints cannot be merely conclusory. Davis v.
Hall, 992 F.2d ·151, 152 (8th Cir. 1993); Parker v. Porter, 221 F. App'x 481, 482
(8th Cir. 2007).
A 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). "If a plaintiff cannot make the requisite showing, dismissal is
appropriate." Abdullah v. Minnesota, 261 F. App'x 926, 927 (8th Cir. 2008);
Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985).
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Under 28 U.S.C. § 1915A, this court must screen prisoner claims and
determine whether they are (1) frivolous, malicious, or fail to state a claim on
which relief may be granted; or (2) seek monetary relief from a defendant who
is immune. See Onstad v. Wilkinson, 534 F. App'x 581, 582 (8th Cir. 2013).
DISCUSSION
Kinter fails to state a claim upon which relief may be granted. The Eighth
Circuit "require[s] a 'clear statement' or a 'specific pleading' indicating that the
plaintiff[ is] suing the defendants in their individual capacities." Remington v.
Hoopes, 611 F. App'x 883, 885 (8th Cir. 2015) (quoting Andrus ex rel. Andrus v.
Arkansas, 197 F.3d 953, 955 (8th Cir. 1999)). "[W]hen a plaintiffs complaint is
silent or otherwise ambiguous about the capacity in which the plaintiff is suing
the defendant, [Eighth Circuit] precedent requires [the Court] to presume that
the plaintiff brings suit against the defendants in only their official capacities."
Id. (citing Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999);
Artis v. Francis Howell N. Band Booster Ass'n, Inc., 161 F.3d 1178, 1182
(8th Cir. 1998). Kinter's complaint does not state the capacity in which he sues
defendants. Therefore, the court presumes he brings suit against defendants in
their official capacities only.
Kinter fails to state a claim against Thayler, Shoemaker, Unknown
Officers in the Jameson SHU, Unknown Department of Health employees, and
Unknown Disciplinary Hearing Officers. In these claims, Kinter requests money
damages only. Docket 1 at iii! 78-84. Damages for official capacity claims are
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barred by the Eleventh Amendment. Reynolds v. Donnire, 636 F.3d 976, 981
(8th Cir. 2011). Therefore, these claims are barred.
Kinter fails to state a claim against Dooley, Young, Ponto, and Kaemingk.
Kinter does not mention defendants Dooley, Young, or Ponto in the fact or
claim sections of his complaint, and he only mentions Kaemingk to say he sent
a letter to Kaemingk explaining his situation. Docket 1 at ii 67. Kinter requests
relief from Dooley, Ponto, Young, and Kaemingk "for failing to properly train
their facilities .... " Id. at ii 85. Kinter does not state any facts or present any
arguments concerning the inadequate training provided by defendants.
Therefore, he fails to state a claim against Dooley, Young, Ponto, and
Kaemingk.
Kinter fails to state a claim against Hughes, Klimek, and Dejong. He
alleges that Hughes, Klimek, and Dejong failed to follow South Dakota law and
federal constitutional law. Id. at ii 86. He requests and injunction ordering all
Department of Corrections staff be trained in compliance with South Dakota
law and federal constitutional law. Id.
"[T]here is no§ 1983 liability for violating prison policy[,]" Gardner v.
Howard, 109 F.3d 427, 430 (8th Cir. 1997); Moore v. Rowley, 126 F. App'x 759
(8th Cir. 2005), and" 'a violation of state law, without more, does not state a
claim under the federal Constitution or 42 U.S.C. § 1983.'" Colbert v. Roling,
233 F. App'x 587, 589-90 (8th Cir. 2007) (quoting Collins v. Bellinghausen, 153
F.3d 591, 596 (8th Cir.1998). Therefore, to the extent Kinter alleges that
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defendants violated state law and prison policies, he fails to state a claim upon
which relief may be granted.
Kinter's claim that Hughes, Klimek, and Dejong violated the federal
constitution, specifically his due process rights, is unclear. He claims Hughes
and Dejong refused to give him grievance forms. Docket 1 at iii! 50, 57. The
complaint does not explain why this is a due process claim rather than a first
amendment claim. Kinter also alleges that he was denied due process during
his hearing, but requests relief from an "Unknown Disciplinary Hearing Officer"
and requests "$2,500 in Damages." Id. at
if 84. Because there is no clear
statement that Hughes, Klimek, .and Dejong violated his due process rights,
Kinter fails to state a claim upon which relief may be granted.
Kinter's complaint fails to state a claim; however, he may be able to
rectify the issues discussed above by amending his complaint. The court grants
him leave to amend his complaint. Kinter should identify his claims and
grounds for liability with specificity, including the defendants against whom he
raises each claim.
Therefore, it is ORDERED
1. Kitner's complaint (Docket 1) fails to state a claim under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
2. Kinter may file his amended complaint by June 4, 2016.
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3. If Kinter fails to comply with this order the court may, without further
notice, dismiss his complaint with prejudice.
Dated Maye:, 2016.
BY THE
COURT~~~
L wrence L. Piersol
ITED STATES DISTRICT JUDGE
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