Vice v. Kaemingk et al
Filing
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ORDER denying 9 Motion for preliminary injunction; denying 9 Motion to Appoint Counsel ; denying as moot 10 Motion to Amend Complaint; denying 13 Motion to Appoint Counsel ; denying 13 Motion for TRO; denying 14 Motion to Compel; Dismissing Complaint in Part and Directing Service. Signed by U.S. District Judge Karen E. Schreier on 12/15/16. (SLW) (Main Document 17 replaced on 12/15/2016) (SLW).
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DERECK VICE,
4:16-CV-04127-KES
Plaintiff,
vs.
DENNIS KAEMINGK, Secretary of
Department of corrections;
DARRIN YOUNG, Warden, South
Dakota State Penitentiary; BOB
DOOLEY, Director of Prison
Operations and Warden of Mike
Durfee State Prison; ANGELA
STIENKE, Coordinator West Hall;
KEITH DITMANSON, West Hall Unit
Manager; DOCTOR EUGENE REIGER,
SDSP Medical Department; JESSICA
STEVENS, Charge nurse, SDSP
Department of Health; TROY PONTO,
Associate Warden, Supervisor of
Medical Services; DR. MARY
CARPENTER; LT. FITZU; C/O BOYSEN;
C/O ROBERT KIRVIN; PA TAMMY; and
DR. JOE HANVEY
ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION,
DENYING MOTION TO APPOINT
COUNSEL, DENYING MOTION TO
EXTEND DEADLINE, DENYING
MOTION FOR TEMPORARY
RESTRAINING ORDER, DENYING
MOTION TO COMPEL, DISMISSING
COMPLAINT IN PART, AND
DIRECTING SERVICE
Defendants.
INTRODUCTION
Plaintiff, Dereck Vice, is an inmate at the South Dakota State
Penitentiary in Sioux Falls. Plaintiff filed an amended complaint and moves for
a temporary restraining order and requests that the court appoint him
counsel. For the following reasons, the court denies Vice’s motions, dismisses
his complaint in part, and directs service.
FACTUAL BACKGROUND
According to Vice’s complaint, Vice is disabled and has been classified
as disabled for a long time. Docket 1 at 1-2. At one point he had access to a
wheelchair and a cane in prison because of his medical conditions. Id. at 2. He
has a life threatening disorder for which he uses a “CPAP” machine. Id.
Vice has had many tests on and evaluations of his back at CORE
Orthopedics, including a CT scan and an MRI. Id. An outside specialist
recommended that he have surgery, but when defendants submitted a request
for this surgery to the South Dakota Department of Health, it was denied. Id.
Vice grieved this issue through the prison grievance system, but was denied
relief. Id.
Vice alleges that he is immobile as a result of defendants’ refusal to
authorize necessary surgery and the use of a wheelchair. Docket 10 at 2. He
cannot attend church services, meals, or recreation time, and he cannot use
the law library or showers. Id. On October 15, 2016, he suffered another fall
that made his injuries worse. Docket 13 at 2. He is not receiving any medical
treatment. Id.
On September 6, 2016, Vice filed a complaint. Docket 1. He did not raise
distinct claims but mentioned the issues outlined above. Vice moved the court
to issue a temporary restraining order “to stop Haraaament [sic] and
Retaliation and Order the surgery that was approved to proceed.” Id. at 3.
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The court found that Vice had failed to state a claim upon which relief
could be granted and ordered him to amend his complaint or it would be
dismissed. Docket 8. Vice then filed a motion for injunction, a motion to
appoint counsel, and an amended complaint. Docket 9; Docket 10; Docket 13.
In his amended complaint, Vice again requests that the court enter a
temporary restraining order and appoint him counsel. Docket 13.
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 pro se 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);
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Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). Under 28 U.S.C.
§ 1915A, the court must screen prisoner complaints and dismiss them if they
are “(1) frivolous, malicious, or fail[] to state a claim upon which relief may be
granted; or (2) seek[] monetary relief from a defendant who is immune from
such relief.” 1915A(b).
DISCUSSION
In both his original and amended complaints, Vice alleges that
defendants violated his rights under the Eighth Amendment, the Americans
with Disabilities Act (ADA), and the Rehabilitation Act (RA). Docket 1; Docket
9; Docket 13. He also moves for a temporary restraining order and requests
that the court appoint counsel. Docket 9; Docket 10; Docket 13.
I.
Screening Under § 1915A
A.
The Complaints
Vice filed a complaint and an amended complaint. Docket 1; Docket 13.
He also filed a motion to extend the deadline to file an amended complaint and
a proposed amended complaint. Docket 10. The court construes these together
as constituting Vice’s complaint. Kiir v. N.D. Pub. Health, 651 F. App’x 567,
568 (8th Cir. 2016) (amendment “intended to supplement, rather than to
supplant, the original complaint,” should be read together with original
complaint as plaintiff’s complaint).
B.
Unmentioned Defendants
Vice named Dennis Kaemingk, Darrin Young, Bob Dooley, Angela
Stienke, Keith Ditmanson, Doctor Eugene Reiger, Jessica Stevens, and Troy
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Ponto as defendants. He does not, however, plead any facts showing that these
defendants violated his rights. Vice fails to state a claim upon which relief may
be granted as to these defendants, and they are dismissed as defendants
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
C.
Individual Capacity Claims
In its Order Granting Leave to Amend, the court dismissed Vice’s claims
under the ADA and RA that were brought against defendants in their
individual capacities. Docket 8 at 5. In his amended complaint, Vice
voluntarily dismisses these claims. Docket 13 at 1. Therefore, Vice’s ADA and
RA claims against defendants in their individual capacities are dismissed.
D.
Deliberate Indifference
To state an Eighth Amendment deliberate indifference claim, Vice must
allege that he was in “a substantial risk of serious harm,” and that defendants
were “deliberately indifferent to that risk of harm . . . .” Letterman v. Does, 789
F.3d 856, 861-62 (8th Cir. 2015) (citing Gordon v. Frank, 454 F.3d 858, 862
(8th Cir. 2006)). To meet the deliberately indifferent element, a defendant
“must ‘know[ ] of and disregard[ ] an excessive risk to inmate health or
safety.’ ” Id. at 862 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). To
show that defendants knew of the substantial risk of serious harm, Vice does
not need to show actual knowledge; the court “can infer knowledge if the risk
was obvious.” Id. It is enough to show that the defendant “had been exposed to
information concerning the risk and thus ‘must have known’ about it.” Id.
(quoting Farmer, 511 U.S. at 842).
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Vice must also show that defendants “ ‘knew that their conduct was
inappropriate in light of’ the risk to the prisoner.” Id. (quoting Krout v.
Goemmer, 583 F.3d 557, 567 (8th Cir. 2009)). “Knew” in this context means
more than negligence and is “akin to the criminal rule of ‘recklessness.’ ” Id.
(quoting Farmer, 511 U.S. at 839-40). “Generally, the actor manifests
deliberate indifference by ‘intentionally denying or delaying access to medical
care, or intentionally interfering with treatment or medication that has been
prescribed.’ ” Id. (quoting Krout v. Goemmer, 583 F.3d 557, 567 (8th Cir.
2009)).
Vice alleges that Dr. Mary Carpenter refused to authorize surgery for
him that was recommended by a specialist. Docket 10 at 2. He also alleges
that after his fall and disability, numerous defendants were deliberately
indifferent to his injury. He alleges that Correctional Officers Boyson and
Robert Kirvin sprayed him with mace because he was unable to stand or walk,
and he alleges Lt. Fitzu “got [him] maced two times . . . .” Docket 10 at 2. He
alleges that Sgt. Herrman and Correctional Officer Stoymuet forced him to
stand, even though his injuries made him unable to stand. Id. He alleges that
PA Tammy Top took his cane and refused him a wheelchair even though he
needed it. Id. Finally, he alleged that Dr. Joe Hanvey refused him a
wheelchair, does not let him shower, and is not treating an infection Vice is
suffering from. Id. Assuming the facts alleged in the complaint and amended
complaint to be true, the court finds that these allegations state a claim of
deliberate indifference under the Eighth Amendment against defendants
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Dr. Carpenter, Boyson, Kirvin, Fitzu, Herrman, Stoymuet, Top, and
Dr. Hanvey. These claims survive screening.
E.
Claims Based on Medical Treatment Decisions
Vice alleges that Dr. Carpenter denied him surgery that was
recommended by a specialist. Id. To the extent Vice seeks to raise a claim
under the RA or the ADA that he was denied surgery, he fails to state a claim.
Claims “based on medical treatment decisions . . . cannot form the basis of a
claim under the RA or the ADA.” Dinkins v. Corr. Med. Servs., 743 F.3d 633,
634 (8th Cir. 2014). Therefore, Vice fails to state a claim under the ADA or the
RA, and this claim is dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1).
F.
ADA Claim
Vice alleges that defendants violated Title II of the ADA, which “provides
that ‘no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.’ ” Bahl v. Cty. of Ramsey, 695 F.3d 778,
783 (8th Cir. 2012) (quoting 42 U.S.C. § 12132). In order to state a claim
under Title II of the ADA, Vice must allege:
(1) that he is a qualified individual with a disability; (2) that he was
excluded from participation in or denied the benefits of the jail's
services, programs, or activities, or was otherwise subjected to
discrimination by the jail; and (3) that such exclusion, denial of
benefits, or other discrimination was by reason of his disability.
Baribeau v. City of Minneapolis, 596 F.3d 465, 484 (8th Cir. 2010).
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Vice alleges that he is disabled. Docket 1 at 1. He alleges that he cannot
access the law library or health services and that he cannot attend church or
recreation services. Docket 13 at 3. He alleges this was caused by defendants
refusing him surgery and a wheelchair. Id. He, therefore, states a claim under
Title II of the ADA against the defendants who refused him surgery and a
wheelchair: Dr. Carpenter, Top, and Dr. Hanvey.
G.
Rehabilitation Act Claim
Vice alleges that defendants violated § 504 of the RA, which states that
“[n]o otherwise qualified individual with a disability in the United States . . .
shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.’ ” 29
U.S.C. § 794(a). “To establish unlawful discrimination under § 504, [Vice]
‘must demonstrate that: (1) he is a qualified individual with a disability; (2) he
was denied the benefits of a program or activity of a public entity which
receives federal funds, and (3) he was discriminated against based on his
disability.’ ” Turner v. Mull, 784 F.3d 485, 494 (8th Cir. 2015) (quoting Gorman
v. Bartch, 152 F.3d 907, 911 (8th Cir. 1998)).
“The ADA and § 504 of the Rehabilitation Act are ‘similar in substance’
and, with the exception of the Rehabilitation Act’s federal funding
requirement, ‘cases interpreting either are applicable and interchangeable’ for
analytical purposes.” Bahl, 695 F.3d at 783 (quoting Randolph v. Rodgers, 170
F.3d 850, 858 (8th Cir. 1999)). Further, for the purpose of screening under
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§ 1915, the court assumes that the South Dakota Department of Corrections
receives federal funds. See Cutter v. Wilkinson, 544 U.S. 709, 716 n.4 (2005)
(“Every State . . . accepts federal funding for its prisons”); Sisney v. Reisch,
533 F. Supp. 2d 952, 984 (D.S.D. 2008), aff'd in part, rev'd in part sub nom.
Van Wyhe v. Reisch, 581 F.3d 639 (8th Cir. 2009), and aff'd, 674 F.3d 839
(8th Cir. 2012) (South Dakota, as defendant, admitted accepting federal
funding for its prisons). Vice, therefore, states a claim under § 504 of the RA
against the defendants who refused him surgery and a wheelchair:
Dr. Carpenter, Top, and Dr. Hanvey.
II.
Motions for Temporary Restraining Order and Preliminary
Injunction
Vice again moves the court to enter a temporary restraining order and
preliminary injunction. Docket 9; Docket 13. The four factors the court
considers in determining whether to grant preliminary injunctive relief are:
“ ‘(1) the threat of irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction will inflict on
other parties litigant; (3) the probability that movant will succeed on the
merits; and (4) the public interest.’ ” Barrett v. Claycomb, 705 F.3d 315, 320
(8th Cir. 2013) (quoting Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109,
114 (8th Cir. 1981)). Since Dataphase, the Eighth Circuit Court of Appeals has
“observed that the ‘likelihood of success on the merits is most significant.’ ” Id.
(quoting S.J.W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 776
(8th Cir. 2012)).
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At this stage, Vice cannot show that he is likely to succeed on the
merits. He has only stated a claim upon which relief may be granted. The
defendants have not been served and have not had a chance to respond.
Therefore, Vice’s motions for a temporary restraining order and preliminary
injunction are denied.
III.
Motion to Appoint Counsel
Vice requests that the court appoint him counsel. Docket 13. “A pro se
litigant has no statutory or constitutional right to have counsel appointed in a
civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998). In
determining whether to appoint counsel to a pro se litigant, the district court
considers the complexity of the case, the ability of the litigant to investigate
the facts, the existence of conflicting testimony, and the litigant’s ability to
present his claim. Id. At this point, Vice is able to present his claim, and it is
too early in litigation to determine the other factors. Therefore, Vice’s motion to
appoint counsel is denied.
IV.
Motion to Compel
Vice moves the court to order the defendants to stop denying him access
to the courts. Docket 14. He alleges that he has evidence that is necessary to
his amended complaint. Id. While this evidence may be relevant at later stages
of this case, it is not necessary for the court to review at the screening stage
because the court only considers the allegations that are made in the
complaint and assumes the allegations to be true. See Gorog v. Best Buy Co.,
760 F.3d 787, 791 (8th Cir. 2014) (“matters outside the pleading may not be
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considered in deciding a Rule 12 motion to dismiss”). Therefore, Vice’s motion
to compel is denied.
Thus, it is ORDERED
1.
Vice fails to state a claim against Dennis Kaemingk, Darrin Young,
Bob Dooley, Angela Stienke, Keith Ditmanson, Doctor Eugene
Reiger, Jessica Stevens, and Troy Ponto. They are dismissed as
defendants under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
2.
Vice’s Eighth Amendment claims against Dr. Carpenter, Boyson,
Kirvin, Fitzu, Herrman, Stoymuet, Top, and Dr. Hanvey survive
screening.
3.
Vice’s ADA and RA claims against Dr. Carpenter, Top, and
Dr. Hanvey survive screening.
4.
The Clerk shall send blank summons forms to Vice so he may
cause the summons and complaint to be served upon the
defendants.
5.
The United States Marshal shall serve a copy of the complaint
(Docket 1; Docket 10; Docket 13), Summons, and this Order upon
defendants as directed by Vice. All costs of service shall be
advanced by the United States.
6.
Defendants will serve and file an answer or responsive pleading to
the remaining claims in the complaint on or before 21 days
following the date of service.
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7.
Vice 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.
8.
Vice’s motion for preliminary injunction and appointment of
counsel (Docket 9) is denied.
9.
Vice’s motion for a temporary restraining order and appointment of
counsel (Docket 13) is denied.
10. Vice’s motion to extend the deadline to amend his complaint
(Docket 10) is denied as moot.
11. Vice’s motion to compel (Docket 14) is denied.
12. Vice will keep the court informed of his current address at all times.
All parties are bound by the Federal Rules of Civil Procedure and by
the court’s Local Rules while this case is pending.
Dated December 15, 2016.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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