McPeek v. Kelsey et al

Filing 74

OPINION AND ORDER granting in part and denying in part 41 Motion for Summary Judgment; granting 48 Motion for Summary Judgment; denying 57 Motion to Amend/Correct; denying 68 Motion for entry of order of default; denying as moot 71 Motion for Joinder. Signed by U.S. District Judge Roberto A. Lange on 7/2/18. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

4:17-CV-04015-RAL

TRAVIS R. MCPEEK,

Plaintiff,
OPINION AND ORDER DENYING
PLAINTIFF'S MOTION TO AMEND

vs.

COMPLAINT AND GRANTING IN PART
UNKNOWN

PENNINGTON

COUNTY

OFFICERS, INDIVIDUALLY AND IN THEIR
OFFICIAL
CAPACITIES;
RABE,MARK PAYER,

DEFENDANTS' MOTIONS FOR
SUMMARY JUDGMENT

CASSONDRA

Defendants.

Plaintiff Travis R. McPeek(McPeek), an inmate in state custody, brought this suit alleging

that various prison and prisoner transport service employees violated his civil rights under 42
U.S.C. § 1983. Doc. 1 at 2. Pursuant to 28 U.S.C. § 1915A,this Court screened McPeek's initial

complaint and granted him leave to amend it. Doc.6. This Courtthen dismissed certain defendants
and elaims in his amended complaint, leaving only Unknown Pennington County Officers,

Cassondra Rabe(Rabe), and Mark Payer(Payer) as defendants. Doe. 9. This Court dismissed all
but two of the eight elaims in McPeek's amended complaint, leaving claims that McPeek was

denied adequate medical care in South Dakota in violation ofhis constitutional rights and that his
Fifth and Eighth Amendment rights were violated when he was put in administrative segregation
in the Yankton County Jail. Doc. 9 at 12.

Defendants moved for summary judgment, Doc. 41; Doc. 42, and McPeek filed a separate

motion for leave to amend his eomplaint. Doc. 57. As was required of him by Local Rule 56.1,

McPeek responded to the defendants' statements ofundisputed material facts which accompanied
their motions for summaryjudgment,making clear that he disputed the summaryjudgment motion.
D.S.D. Civ. LR 56.1(B); Doc. 64; Doc. 65. However, McPeek did not file a response briefraising

legal arguments in opposition to the defendants' motions for summary judgment within 21 days
ofservice oftheir motions. D.S.D. Civ. LR 7.1(B). Instead, McPeek styled his proposed amended

complaint as an affidavit and attached various documents to it. Doc. 57-1, and filed separate
affidavits of himself, Ronnie Young, and Robert Little to contest certain matters in the summary

judgment motions. Docs. 58, 59, 60. MePeek, who is a pro se inmate, also filed a "statement"
regarding his lack oflegal sophistication and access to legal resources. Doc.66. Defendants Payer
and Rabe then moved for entry of an order declaring McPeek in default for failing to file a brief

opposing their motion for summaryjudgment. Doe.68. Defendant Unknown Pennington County
Officers joined in the motion. Doe. 71. McPeek's response to the statements of material facts,
affidavits, statement and effort to amend his complaint with attachments, while not technically a

response brief, are sufficient filings to contest the summary judgment motions, so the motions to
deem McPeek in default are denied. For the reasons explained below,this Court denies MePeek's

motion to amend his complaint, grants Unknown Pennington County Officers' Motion for

Summary Judgment, and grants in part and denies in part Rabe and Payer's Motion for Summary
Judgment.

I.

Factual Background

On August 6, 2016, McPeek was involved in an incident in Tyndall, South Dakota which
resulted in his indictment for aggravated assault against law enforcement officer Kelly Young.

Doc. 46 at 11; Doc. 64 at If 1. Following the incident, MePeek traveled to Mesa, Arizona, where
he was arrested on December 15, 2016. Doc.46 at Ti 1-3; Doc. 52-4; Doc. 64 at Tf 1- During the

arrest, McPeek was shot, perhaps five times apparently with rubber bullets, by law enforcement,
and suffered injuries for which he was hospitalized for a day. Doc. 46 at Tn| 4-5; Doc. 50 at 4;

Doc. 64 at lit 2-3; Doc. 65 at t 4. On December 16, 2016, while hospitalized, McPeek was

prescribed thirty 5-10 mg tablets of oxycodone to be taken every four hours for five days and
fourteen docusate sodium 100 mg capsules to be taken twice daily for seven days. Doc. 8-10; Doc.

8-11; Doc. 50 ^ 8-9; Doc. 65 ^ 8-9. Neither preseription indicated it was refillable beyond the

short period for which it was prescribed.' Doc. 8-10; Doc. 8-11. On December 27, 2016, he was

prescribed thirty ibuprofen 800 mg tablets to be taken twice daily for fifteen days with no refills.
Doe. 8-5; Doc. 52-6 at 2. McPeek remained in Maricopa County custody from his arrest until

January 2, 2017, when he began his extradition to the Yankton County Jail in Yankton, South
Dakota via the Northwest Shuttle prisoner transportation service. Doc. 8-4; Doc. 46 at

11-13;

Doc.64 at 4. En route to Yankton County, McPeek was held in various state facilities, ineluding

the Pennington County Jail in Rapid City, South Dakota, from January 19 until January 26. Doc.
50 at^l 6; Doc. 65 at^f 6.

On January 20, 2017, McPeek participated in filling out an inmate intake form at the

Pennington County Jail. Doc. 50 at 115; Doc. 52-2; Doc.65 at H 15. The intake form records that
McPeek reported being on oxycodone,Zyrtec, Motrin, Excedrin, Tramadol, and Flexeril. Doc. 50

atf 16; Doc.65 at 116. Because ofthe wounds from his arrest in Mesa, McPeek was placed on a
lower bunk restrietion and referred to jail medical staff. Doc. 50 at ^ 18; Doc. 52-2; Doc. 65 at T|

18. On his first night in the Pennington County Jail, McPeek was provided 400 mg ofibuprofen.

Doc. 50 at t 20; Doc. 65 at t 20. Jail medical staff made clear to McPeek that they could not

provide him additional medication or a special allergen-fi-ee meal tray until they had received
Prescription refills are not permitted at all for oxycodone, a Schedule II drug. 21 U.S.C. § 829(a).
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medical records documenting McPeek's active prescriptions and allergies. Doc. 50 at 130; Doc.
65 at 124.

McPeek believes that he was improperly denied access to prescribed medication while in

the Pennington County Jail. He made nine medical inquiries and filed four grievances regarding
denied medications and food allergies during his stay at the Pennington County Jail, each of which

Pennington County officials responded to. Doc. 50 at 22; Doc. 65 at 20. The first two inquiries
resulted in McPeek receiving and completing a release ofinformation(ROI)form allowing the jail
to obtain and view his medical records. Doc. 50 at

23-25; Doc. 65 at ^ 20. The Pennington

County Jail faxed ROIs to Siouxland Community Health, McKennan Hospital, and Sioux Falls
Chiropractic for various medical records on January 20, and refaxed them on January 23. Doc. 50

at m 26-28, 35; Doc. 52-2 at 10; contra Doc. 65 at

21-23, 26.^ The Pennington County Jail

received responses from McKennan Hospital and Sioux Falls Chiropractic on January 25. Doc.
50 at

36, 38; Doc. 52-2 at 10; contra Doc. 65 at ^ 27. McKennan Hospital sent McPeek's

records, which neither showed any active prescriptions nor confirmed his purported soy allergy.

Doc. 50 at t 37; Doc.52 at 10; contra Doc. 65 at ^ 28. But, the McKennan Hospital records did
show he was allergic to bee stings and penicillin. Doc. 50 at ^ 37; Doc. 52 at 10, contra Doc. 65

at ^ 28. In its response to the ROI, Sioux Falls Chiropractic informed Pennington County that it
had purged McPeek's records due to their age. Doc. 50 at ^ 38; Doc. 52-2 at 11, contra Doc. 65
at If 29. Siouxland Community Health did not respond to Pennington County's ROI while he

2 McPeek contests

26-28 and 35-40 because Unknown Officers have not entered the ROIs or

reply documents into evidence. Doc. 65 at 21—23, 26—31. However, the fact that Pennington
County Jail sent ROIs to Siouxland Community Health, McKennan Hospital, and Sioux Falls
Chiropractic is established by filings in the eourt record and would be admissible in evidence
anyway under the business records exception. Fed. R.Evid. 803(6)(B). Doc.52-2 contains records
"kept in the course of a regularly conducted activity" of the jail, showing that the ROIs had been
sent and responded to.

remained at the Pennington County Jail. Doc. 50 at ^ 40; contra Doc. 65 at If 31; cf Doc. 52-2.
The other medical inquiries and grievances suhmitted by McPeek while in the Pennington County
Jail involved either further medication requests or concerns regarding his food allergies. Doc. 50
at II29; Doc. 65 at ^ 24.

On January 25, medical staffexamined McPeek's right arm, which was observed as having
a healing wound, with no warmth, swelling, or drainage. Doc. 50 at ^f 32; Doc. 65 at ^ 24. A
medication order was placed for McPeek to have four 200 mg tablets ofibuprofen twice daily, hut
McPeek claims never to have received this medication. Doc. 50 at ^f 33-34; Doc. 65 at

24-25.

McPeek left Pennington County Jail for Yankton County Jail on the night of January 25. Doc. 50
att41.

McPeek arrived at the Yankton County Jail on January 26, 2017. Doc. 46 at If 15. When

he was hooked into the Yankton County Jail, he had no medication on his person and the only

prescription documentation he had pertained to the prescriptions issued to him while incarcerated
in Maricopa County. Doc. 46 at tif 19,20; Doc.64 at tif 8, 9. Since all of McPeek's prescriptions
had ended before McPeek arrived in Pennington County, none ofthem were active when Yankton
County took custody of him.

McPeek was placed in administrative segregation upon admission to Yankton County Jail,
which is the basis for one of his remaining § 1983 claims. Rabe and Payer state that Corporal
Steve Bolhouse and Corrections Officer Leah Brandt made the decision to place McPeek in

administrative segregation for medical reasons, which McPeek denies although he lacks firsthand
knowledge of who or why he was placed in administrative segregation. Doc.46 at

16,17; Doc.

64 at TfTf 5-7. Although nobody told him he was placed in administrative segregation as a

punishment, McPeek believes that he may have been placed in administrative segregation in

retaliation for his prior assault in Tyndall on Officer Kelly Young from which the South Dakota
charges arose. Doc. 46 at

23-26. Payer and Rabe, based on an affidavit signed by Payer

himself, state that McPeek was assigned to administrative segregation because he still had several
visible wounds from being shot apparently with rubber bullets during his arrest in Mesa. Doc. 45

at If 6; Doc. 46 at ^ 16. The intake documents from the Yankton County Jail show that McPeek
was booked into the jail by Rabe and faced a pending charge of aggravated assault against law
enforcement officer with the arrest warrant issued in Bon Homme County. Doe. 57-1 at 24. The

medical history apparently taken on intake recorded that MePeek had allergies to bees, penicillin,
beans, and soy; was not deemed a behavior risk; did not need isolation; had visual trauma from
five rubber bullet wounds inflicted on December 15, 2016; had myofascial muscle and tissue

damage,bulging disks in neck, fibromyalgia and scar tissue on internal organs; was not an escape

risk; and was not a medical risk. Doe. 57-1 at 25-26.^
Curiously, despite being in administrative segregation ostensibly for medical reasons,
McPeek received no medical treatment of any kind at Yankton County Jail until he met with

physician's assistant Peter Murray on February 8,2017,almost two weeks after he had been placed
in administrative segregation. McPeek's initial medical request while at Yankton County Jail,
dated February 6, 2017, triggered this visit, which was for "lump on chin & throat," which was
found to be oozing and swollen and which was treated by a topical medicine. Doe. 42-2 at 1-4.
McPeek made later medical requests at the Yankton County Jail for myofascial pain,lump on chin,

^ McPeek, as mentioned above, responded to the motions for summary judgment in a somewhat
unusual manner, submitting a "Statement" about his lack of legal resources as a pro se inmate,

filing affidavits, and filing an amended complaint also styled an affidavit designed to forestall
summaryjudgment. Docs. 57,58, 59, 60, 66. McPeek attached the intake and booking materials
to his proposed amended complaint,Doe. 57-1 at 24—28,and this Court considers those documents
as part of the record and opposition to summaryjudgment.

nightmares and night sweats, and headache and dizziness. Each of those medical requests appear
to have prompted appropriate responses and medical care. Doc. 42—4. The record is not entirely
clear on how long McPeek remained in administrative segregation or at the Yankton County Jail,

although fellow inmate Ronnie Young signed an affidavit stating that McPeek was eventually
"moved out of segregation and put in general population" the day after the Super Bowl. Doc. 59
at^ 6.
II.

Discussion

A. Motion to Amend Complaint

McPeek moves to amend his complaint for the second time. Doc. 57; see also Doc. 30. In

his most recent proposed amended complaint, McPeek seeks to change his federal civil rights claim
from a 42 U.S.C. § 1983 claim to a § 1986 negligent failure to prevent a conspiracy to interfere

with civil rights claim. Doc 57-1 at 1. He also seeks to add state tort elaims against each defendant
and identifies certain defendants by name. Doc. 57-1 at 11-12. Generally, "[t]he court should

freely give leave" to a party to amend its eomplaint "when justice so requires." Fed. R. Civ. P.

15(a)(2). However, denying leave to amend a complaint "is appropriate . . . in those limited
circumstances in which undue delay, bad faith on the part of the moving [party], futility of the

amendment, or unfair prejudice to the non-moving party can be demonstrated." Roberson v. Hayti
PoliceDep't.241 F.3d 992,995(8th Cir. 2001)tcitingFoman v. Davis. 371 U.S. 178,182(1962)).

The amendment sought by McPeek is fixtile, so the Court denies his motion for leave to amend.

McPeek's proposed amended complaint contains an invalid § 1986 claim because the

proposed amendment to the eomplaint does not include a § 1985 claim. See Mclntosh v. Ark.
Republican Partv-Frank White Election Comm.. 766 F.2d 337, 340 (8th Cir. 1985)("Recovery
under section 1986 is dependent on the existence of a elaim under seetion 1985 . . . ."). McPeek

misconstraes § 1986, treating it as though it constitutes a cause of action for general negligence
leading to violations of one's civil rights. See, e.g.. Doe. 57-1 at 1 (referring to § 1986 as "cause
of action negligence"). McPeek's desired amendment fails to state a valid § 1986 claim and is
frivolous.

Because the lone federal claim in McPeek's proposed amended complaint—the § 1986
claim—is frivolous, this Court would not exercise supplemental jurisdiction over the state tort

claim, which is the only other claim in the proposed amended complaint. Federal courts may

exercise supplemental jurisdiction over state claims which do not involve diversity or a federal

question ifthe claims are "so related to claims in the action within... original [federal]jurisdiction
that they form part of the same ease or controversy under Article III of the United States
Constitution." 28 U.S.C. § 1367(a). However, a district court "may decline to exercise

supplemental jurisdiction over a claim under subsection(a)[of § 1367] if... the district court has
dismissed all claims over which it has original jurisdiction." Ifr § 1367(c)(3). The principle of

comity weighs strongly against federal courts exercising jurisdiction over cases where diversity or
a federal question is absent. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715,726(1966)

("Needless decisions of state law should be avoided ... as a matter of comity . . . ."). McPeek
presents no countervailing reason why his state law claim should not be litigated in state court, so
this Court sees no reason to consider hearing it. Consequently, McPeek's motion to amend his
complaint is denied as futile.
B. Motions for Summary Judgment

1. Summary Judgment Standard

Summary judgment is proper when "the evidence, viewed in the light most favorable to
the nonmoving party, shows that no genuine issue ofmaterial fact exists and that the moving party

is entitled to judgment as a matter oflaw." Cordry v. Vanderbilt Mort.& Fin.. Inc.. 445 F.3d 1106,
1109 (8th Cir. 2006)(quoting Bockelman v. MCI Worldcom. Inc., 403 F.3d 528, 531 (8th Cir.
2005)); see also Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when a "reasonable
jury [could] return a verdict for either party" on a particular issue. Mayer v. Countrywide Home
Loans. 647 F.3d 789, 791 (8th Cir. 2011). To withstand a properly made motion for summary

judgment,the nonmoving party must provide "sufficient probative evidence [that] would permit a
finding in [his] favor on more than mere speculation, conjecture, or fantasy." Moody v. St. Charles
Ctv., 23 F.3d 1410, 1412(8th Cir. 1994)(alterations in original).
2. Defendants' Motions for Summary Judgment

Unknown Pennington County Jail Officers'Motion

McPeek's sole claim against Unknown Pennington County Officers is a § 1983 claim

alleging that they violated the Eighth Amendment by wrongfully delaying or denying him
treatment and access to medications he had been prescribed. See Doc. 8 at 21-22; Doc. 9 at 7.

"[A] prison official who is deliberately indifferent to the medical needs of a prisoner violates the
prisoner's constitutional rights." Letterman v. Does,789 F.3d 856,861 (8th Cir. 2015). Deliberate
indifference includes "indifference . . . manifested by prison doctors in their response to the

prisoner's needs[,]... by prison guards in intentionally denying or delaying access to medical care
or intentionally interfering with the treatment once prescribed." Estelle v. Gamble, 429 U.S. 97,

104-105(1976)(footnote omitted). McPeek's complaint alleges Pennington County Jail officials
intentionally denied and delayed his access to medical care and intentionally interfered with his
access to preexisting prescriptions.

No one at the Pennington County Jail intentionally denied or delayed McPeek's access to

necessary medical treatment as a matter oflaw. After completing his intake form upon his arrival

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at the jail on January 20, 2017, McPeek was placed on a lower bunk restriction and referred to
medical staff. Doc. 50 at 18; Doe. 65 at If 18. He was provided 400 mg doses of ibuprofen

beginning on bis first nigbt. Doc. 50 at^20; Doc.65 at^20. The jail staff bad McPeek sign ROIs

and actively sought bis treatment records to determine if be bad active prescriptions or food
allergies. Doc. 50 at Tflf 26-28, 35-38; Doc. 52-2 at 10. After a January 25 medical appointment,
McPeek was to receive 800 mg ibuprofen twice daily. Doe. 52-2 at 5. McPeek left the Pennington

County Jail on the nigbt of January 25. Doc. 50 at ]f 41. McPeek did not have active prescriptions
for the drugs be sought from employees ofthe jail, so bis lack of access to those drugs was proper.

Nor did anyone at the Pennington County Jail intentionally interfere with McPeek's access to

prescriptions, as McPeek did not have active prescriptions for any of the medications be sought
when be arrived at the Pennington County Jail. The only prescriptions McPeek alleges were

improperly withheld from bim were the 800 mg ibuprofen, oxycodone, and docusate sodium
preseribed in Maricopa County. Doc. 50 at ^ 12; Doc. 65 at

12. However, none of these

prescriptions were active when the Pennington County Jail assumed custody of McPeek.
Further, MePeek has not provided any evidence that any delay in treatment which may
have occurred during bis six days at the Pennington County Jail bad a detrimental effect. "An

inmate who complains that delay in medical treatment rose to a constitutional violation must place

verifying evidence in the reeord to establish the detrimental effect of delay in medical treatment to
succeed." Crowlev v. Hedgepetb. 109 F.3d 500,502(8tb Cir. 1997)(quoting Hill v. Dekalb Reg'l

Youth Det. Ctr.. 40 F.3d 1176, 1188 (lltb Cir. 1994)). Thus, any claim by McPeek that a delay

in medical treatment (if one occurred) amounted to a violation of the Eighth Amendment fails as
a matter of law. Even if all reasonable inferences are made in favor of McPeek, Unknown

Pennington County Offieers are entitled to summaryjudgment.

10

Robe and Payer's Motion

One of McPeek's claims against Rabe and Payer is that they too withheld the medications

he had been prescribed in Maricopa County from him. These prescriptions were inactive before
McPeek arrived at the Yankton County Jail, though. Consequently, McPeek's allegation that

Payer or Rabe violated his Eighth Amendment right by refusing to provide him any of the
medications he claimed to have a prescription for is groundless, and Payer and Rabe are entitled

to judgment as a matter of law on that issue. Indeed, the records indicate that McPeek received
timely responses to his medical requests made at the Yankton County Jail. Doc. 42-4.
McPeek's remaining claim against Rabe and Payer involves his placement in segregation
in the Yankton County Jail, even though he had not been disciplined. "Pretrial detainees are

presumed innocent and may not be punished." Martinez v. Turner, 977 F.2d 421, 423 (8th
Cir.1992) (citing Bell v. Wolfish. 441 U.S. 520, 535 (1979)). "The determination whether a

particular restriction or condition accompanying pretrial detention is punishment tums on whether
the restriction or condition is reasonably related to a legitimate governmental objective." Id.(citing

Bell 441 U.S. at 538-39). Placing a pretrial detainee in administrative segregation is punishment.

Id. (citing Chestnut v. Magnusson, 942 F.2d 820, 823 (1st Cir. 1991)); Bell v. Wolff, 496 F.2d
1252, 1254(8th Cir. 1974); see also Phillips v. Kiser. 172 F. App'x 128, 129(8th Cir. 2006)(per

curiam) (finding that pretrial detainee stated a claim against prosecutor for ordering solitary
confinement to punish the detainee).

Rabe and Payer assert that "McPeek was not placed in administrative segregation for any
reason related to discipline or punishment; rather it was for purposes of medical isolation." Doc.

46 at 18. Payer submits an affidavit to that effect, but states that two others actually made the

decision to place McPeek in administrative segregation. Doc. 45 at T[ 6. Rabe meanwhile is listed

11

as the booking officer on intake. Doc. 57-1 at 24. McPeek contests that his placement in
administrative segregation was for medical reasons, but he lacks firsthand knowledge and relies

on the booking forms and an affidavit of a fellow inmate at the time. A genuine issue of material
fact exists on the legitimacy of Rabe and Payer's assertion as to why McPeek was placed in
administrative segregation.

The Yankton County Jail's booking forms do not explain why McPeek was placed in

segregation. Doc. 57-1 at 25. The medical history lists medical conditions and visual trauma from
rubber bullets, but characterizes McPeek as "no" on medical risk. Doc. 57-1 at 25-26. Moreover,

the jail apparently did not furnish McPeek any medical treatment of any kind until February 8,
2017, some two weeks after he was placed in segregation ostensibly due to his medical condition.
Doc.42-4. McPeek's fellow inmate Ronnie Young stated in an affidavit that, when McPeek asked

jail staff why he had been placed on administrative segregation, "the staff would tell him they
didn't have room [elsewhere] in the jail for him," even though cells were available outside of
administrative segregation. Doc.59 at

4,5. Ifall inferences are made in the light most favorable

to McPeek, a genuine question of material fact exists regarding the reason for his administrative
segregation.

There may also be a genuine issue of material fact regarding the role ofthe remaining two
defendants—Rabe and Payer—in placing and keeping McPeek in administrative segregation in
the first instance. Rabe and Payer have attributed the decision to Corporal Steve Bolhouse and
Corrections Officer Leah Brandt for placing McPeak in administrative segregation initially. Doc.

46 at

16, 17; Doc. 64 at

5-7. McPeek has not sought to amend his complaint to add those

two as defendants or to make a § 1983 claim against them. Rabe was listed as the booking officer

and Payer, according to McPeek, has control over where inmates are placed, so this Court caimot

12

grant them summary judgment on their alleged role in placing or retaining McPeek in
administrative segregation.
III.

Conclusion

For the reasons stated above, it is hereby

ORDERED that McPeek's Motion for Leave to Amend Complaint, Doc. 57, is denied. It
is further

ORDERED that Unknown Pennington County Officers' Motion for Summary Judgment,

Doc. 48,is granted and their joinder in the motion for entry of default, Doc. 71,is denied as moot.
It is further

ORDERED that Rabe and Payer's motion for summary judgment. Doc. 41, is granted in

part with respect to the claim involving medical care and medications for McPeek but denied as to
the claim regarding his placement in segregation. It is further

ORDERED that Rabe and Payer's motion for entry of order of default. Doc. 68,is denied.
It is finally

ORDERED that, if McPeek wishes to amend his complaint strictly to add the two

individuals who Rabe and Payer claim made the decision to place McPeek in segregation or seek
to have the Court reconsider appointment of counsel, McPeek is to file such motions, with an
attached amended complaint, no later than 21 days after this opinion and order is filed.

DATED this^day of July, 2018.
BY THE COURT;

ROBERTO A. LANGE

UNITED STATES DISTRICT JUDGE

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