McPeek v. Kelsey et al

Filing 9

OPINION AND ORDER Dismissing Complaint in part and Directing Service. Signed by U.S. District Judge Roberto A. Lange on 3/30/2017. (JLS)

UNITED STATES DISTRICT COURT

A ZLi£

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

TRAVIS RAY MCPEEK,

4:17-CV-04015-RAL

Plaintiff,
vs.

BON HOMME COUNTY SHERIFF

KELSEY; PENNINGTON COUNTY
STEPHANIE BORN; NORTHWEST

SHUTTLE, UNKNOWN AGENT;
MARICOPA COUNTY SHERIFF, FABIO
MORAN; UNKNOWN MARICOPA
COUNTY ATTORNEY; UNKNOWN MESA
POLICE; UNKNOWN APACHE COUNTY
OFFICERS; MONTEZUMA COUNTY

OPINION AND ORDER
DISMISSING COMPLAINT IN PART
AND DIRECTING SERVICE

OFFICERS; SGT. BURK; UNKNOWN
MALE NURSE; UNKNOWN LA PLATA
COUNTY OFFICERS; UNKNOWN
CASTLE ROCK OFFICERS; UNKNOWN
BOULDER OFFICERS; UNKNOWN
PENNINGTON COUNTY OFFICERS;
SGT. MUNSCH; CPL. MUHLBEIER;
YANKTON COUNTY SHERIFF JIM

VALASKEZ; OFFICER HANES; SGT.
CASS; JAIL ADMINISTRATOR PAYER;
BON HOMME COUNTY OFFICER

KELLY YOUNG; PROSECUTING

ATTORNEY LISA ROTHSCHADL;
UNKNOWN SOUTH DAKOTA

TRANSPORT OFFICERS,
Defendants.

Plaintiff Travis R. McPeek ("McPeek"), an inmate at the Yankton County
Jail in Yankton, South Dakota, filed this lawsuit pursuant to 42 U.S.C.

§ 1983. Doc. 1. This Court screened his complaint pursuant to 28 U.S.C.
§ 19ISA, and ordered McPeek to amend his complaint. Doc. 5. McPeek has
now filed his amended complaint. Doc. 8. For the following reasons, the Court
dismisses his complaint in part and directs service.
I.

FACTS ALLEGED IN THE COMPLAINTi

On January 4, 2017, McPeek signed a "waiver of extradition" in Maricopa
County, Arizona, with the alleged understanding that Bon Homme County,
South Dakota would transport him. Doc. 8 at 4. McPeek alleges that he suffers

from multiple medical issues. He alleges that he has myofascial and tissue
damage from being struck by a truck and suffers from chronic pain from that
injury as well as being shot multiple times. Id. at 9-10. He further suffers from
mobility issues because of his injuries. Id. at 10.

On January 12, 2017, McPeek was transferred from Maricopa County to

Apache County Jail in St. John, Arizona. Id. at 9. He alleges that the Apache
County officer who transported him was aware of his medical issues, but put
him in a belly chain and handcuffs, which aggravated McPeek's prior injuries.
Id. McPeek alleges that when he arrived at the Apache County Jail, he was
strip searched in a degrading manner, including his genitals being touched. Id.
He was denied medication and was sent through the booking process. Id. at

10-11. He was chained in a similar manner the next day and transported to
Gallop, New Mexico. Id. at 11. He was taken to Montezuma County Jail in

1 This Court makes no findings of fact at this point in the case. The matters set forth in this
section are taken from the factual allegations pled m McPeek's Amended Complaint, which this
Court must take as true on initial screening.

Cortez, Colorado, then La Plata County Jail Colorado. Id. at 11-12. He was

chained during transport and searched once he arrived at these jails. Id.
In La Plata, McPeek alleges that officers were aware of his medical issues.
Id. at 12. He was given permission to use a bottom bunk, but it was taken
away after McPeek requested to move to another cell because his cell mate was

mad at him. Id. at 12-13. McPeek grieved these issues and felt that he was

discriminated against during the procedure for his disability and because he
had filed complaints. Id. at 14-15.

Later, Sgt. Burke searched McPeek roughly, including "karate chopping"
his testicles. Id. at 15. Burke then put McPeek in segregation. Id. McPeek

asked him why, but he did not respond. Id. McPeek complained that he was
put in segregation, that he was searched roughly, and that he was denied a
bible, grievances, and toilet paper, but never received a response. Id. at 15-16.
On January 17, 2017, McPeek was transported to Pennington County

Jail in South Dakota, via Alamosa County, Colorado; Colorado Springs,
Colorado; Pueblo, Colorado; Jefferson County, Colorado; Boulder, Colorado;
Cheyanne, Wyoming; Lusk, Wyoming; and Rushville, Nebraska. Id. at 17-20. In
these jails, he was roughly searched and booked. Id.

While in Pennington County Jail, McPeek filed a grievance arguing that
his transfer was illegal. Id. at 20. Sgt. Munsch responded that the issue was
non-greivable. Id. He also filed a grievance concerning admittance into the
"Rebound Program," and was told he was ineligible because he was on a hold
through the federal government or South Dakota Department of Corrections.

Id. at 21. At Pennington County Jail, he was also denied medical treatment. Id.
at 22.

On January 26, 2017, McPeek was transferred to Yankton County Jail
on the South Dakota Prison Bus. Id. At Yankton, McPeek alleges he was

searched by Officer Hanes in a degrading manner, including having his penis
and butt touched. Id. at 22-23. He was placed in segregation in the jail even
though he had no disciplinary problems. Id. at 23. McPeek alleges he was
denied his medications by Sgt. Cass for five weeks. Id. He also alleges that he
filed a number of grievances about different incidences, but they were denied
by Payer, the Jail Administrator. Id. at 23-24.
At the end of his complaint, McPeek also makes a number of unrelated
allegations concerning an incident in 2016. He alleges that Bon Homme County
Officer Kelly Young conducted an illegal search of his vehicle and attacked him
without reason. Id. at 25. He also claims that Young claimed McPeek ran him
over, but McPeek denies this. Id. at 27. Finally, McPeek claims that these
allegations were in the news and destroyed his reputation. Id.
II.

PROCEDURAL BACKGROUND

On Februaiy 8, 2017, McPeek filed a complaint pursuant to 42 U.S.C.
§ 1983. Doc. 1. Because McPeek is incarcerated, this Court screened his

complaint pursuant to 28 U.S.C. § 19ISA. This Court ordered McPeek to

amend his complaint by April 3, 2017, because he had failed to state a claim
upon which relief could be granted. Doc. 6. McPeek timely filed an amended
complaint. Doc. 8.

III.

LEGAL STANDARD

At this stage of the case, this 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
conclusoiy. 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." BellAtl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). "If a plaintiff cannot make the requisite showing, dismissal is
appropriate." Beavers v. Lockhart, 755 F.2d 657, 663(8th Cir. 1985).
Under 28 U.S.C. § 1915A, this Court must screen prisoner claims filed in

forma pauperis 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 from such relief." See also Onstad v.

Wilkinson, 534 F. App'x 581, 582 (8th Cir. 2013).

IV.

A.

DISCUSSION

Screening Under § 1915A
McPeek's amended complaint does not specifically explain what claims

he seeks to raise. This Court construes his amended complaint as raising a
number of claims. McPeek raises claims concerning his medical treatment, his
housing in segregation, his transfer, defendants'response to his grievances,
and defendants' searches.
1.

Medical Claims

McPeek claims that defendants working at the Pennington County Jail
and the Yankton County Jail violated his Eighth Amendment rights by being

deliberately indifferent to his serious medical needs. "[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). To
state an Eighth Amendment claim, plaintiffs must show "a substantial risk of
serious harm to the victim," and "that the prison official was deliberately
indifferent to that risk of harm . . . ." Id. at 861-62 (citing Gordon v. Frank, 454

F.3d 858, 862 (8th Cir. 2006)). "The deliberate indifference element has two
components: an actor 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)).

McPeek alleges that he was denied his medication. He alleges that he
came to Yankton with prescriptions and medical paperwork. Doc. 8 at 23. Even

though prison officials were aware that he required medication, he alleges that
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Sgt. Cass denied him his medications for five weeks. Id. Therefore, McPeek

states a deliberate indifference claim against Cass upon which relief may be
granted.

McPeek also alleges that he was denied his medication in Pennington
County Jail, but does not name a defendant in this matter. At this point in
litigation, McPeek's naming of"Unknown Pennington County Officers" suffices
until McPeek has the chance to discover the identities of those officers.

2.

Segregation at Yankton County Jail

McPeek claims that he was put 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) cert, denied, 507 U.S. 1009 (1993)(citing Bell v. Wolfish, 441 U.S.
520, 535 (1979)). "The determination whether a particular restriction or
condition accompanying pretrial detention is punishment turns 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. Riser, 172 F. App'x 128, 129 (8th Cir. 2006)(finding
that pretrial detainee stated a claim against prosecutor for ordering solitary
confinement to punish the detainee).
McPeek alleges that he was placed in segregated housing. Doc. 1 at 23.
He alleges that he had no disciplinary record and was classified as a medium
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securily prisoner even though he had previously been elassifled as "low

seeurity." Id. A reasonable inferenee from the Amended Complaint is that
McPeek is alleging that he was plaeed in segregation as a punishment.
Therefore, McPeek has stated a claim under the Due Process Clause upon
which relief may be granted.
3.

Out-of-State Defendants

Much of McPeek's complaint is devoted to actions in states other than

South Dakota taken by out-of-state defendants. To determine whether personal

jurisdiction can be exercised over a nonresident defendant, the district court
must determine that personal jurisdiction exists under the forum state's longarm statute and that the exercise of personal jurisdiction is consistent with due

process. Wells Dairy, Inc. v. Food Movers Int'l, Inc., 607 F.3d 515, 518 (8th Cir.
2010). The South Dakota long arm statute confers jurisdiction to the fullest
extent allowed by the Due Process Clause. Bell Paper Box, Inc. v. Trans W.

Polymers, Inc., 53 F.3d 920, 921 (8th Cir. 1995). This Court must therefore
address only the question whether the exercise of personal jurisdiction satisfies
due process. Dakota Indus, v. Ever Best Ltd., 28 F.3d 910, 914 (8th Cir. 1994).
"Due process requires that there be minimum contacts between the
nonresident defendant and the forum state such that the assertion of personal

jurisdiction is consistent with traditional notions of fair play and substantial
justice." Wells Dairy, 607 F.3d at 518 (citations omitted)."'Sufficient contacts
exist when the defendant's conduct and connection with the forum state are

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such that [it] should reasonably anticipate being haled into court there.'" Id.
(quoting Bell Paper Box, 22 F.3d at 818).
McPeek does not allege any facts showing that these out of state

defendants had any contacts with South Dakota. Therefore, this Court may not
exercise jurisdiction over the out-of-state defendants. Fabio Moran, Unknown
Maricopa County Attorney, Unknown Mesa Police, Unknown Apache County
Officers, Unknown Montizuma County Officers, Sgt. Burke, Unknown Male
Nurse, Unknown La Plata County Officers, Unknown Castle Rock Officers, and
Unknown Boulder Officers are dismissed as defendants. See also Sanders v.

United States, 760 F.2d 869, 871 (8th Cir.1985)(affirming dismissal under
§ 1915 because plaintiff could allege "no set of facts which would support an
exercise ofjurisdiction over the defendants by the district court").
4.

Claims under the Interstate Agreement on Detainers

McPeek alleges that his transfer violated the Interstate Agreement on

Detainers Act (IADA). "The basic purpose of the Interstate Agreement on

Detainers is to ensure prompt disposition of outstanding charges in order to

implement a prisoner's right to a speedy trial and to prevent interference with
his participation in treatment and rehabilitation programs." Rhodes v. Schoen,
574 F.2d 968, 969-70 (8th Cir. 1978)(citing United States ex rel. Esola v.
Groomes, 520 F.2d 830, 833-34 (3d Cir. 1975)). McPeek does not raise a claim

concerning disposition of his charges. He argues instead that he agreed to be

transferred but not by the Northwest Shuttle. The lADA does not grant rights
concerning the mode of transfer. Therefore, McPeek fails to state a claim under

the lADA upon which relief may be granted, and his claim is dismissed

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A{b)(l).
5.

Due Process for Transfer

McPeek claims that his Due Process rights were violated when he was

transferred. However,"the due process clause is not implicated when a pretrial
detainee is transferred from one prison to another." Ervin v. Busby, 992 F.2d
147, 150 (Sth Cir. 1993). There are certain situations in which a transfer may
violate Due Process, see id., but they do not apply here. Therefore, McPeek fails
to state a Due Process claim upon which relief may be granted, and his claim is

dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
6.

Equal Protection and Eighth Amendment

McPeek claims that his rights under the Equal Protection Clause and the

Eighth Amendment were violated by his transfer. He does not explain how his
rights were violated. "A pleading that offers 'labels and conclusions' or 'a

formulaic recitation of the elements of a cause of action will not do.'" Ashcroft
V. Iqbal, 556 U.S. 662,678 (2009)(quoting Twombly, 550 U.S. at 555). McPeek
merely uses the phrases "Equal Protection" and "Eighth Amendment." He does
not allege facts that would support a claim under either. Therefore, McPeek

fails to state a claim under the Equal Protection Clause and the Eighth
Amendment upon which relief may be granted, and his claim is dismissed

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).

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7.

Grievances

McPeek alleges that he was not able to grieve certain issues at both the

Pennington County Jail and the Yankton County Jail. Although some of the
grievances may have contained constitutional claims, see Doc. 8 at 23-24,
McPeek does not provide facts to state a claim on any of those constitutional

grounds. Defendants' mere denial of McPeek's grievances did not violate his
constitutional rights. "[A prison] grievance procedure is a procedural right only,
it does not confer any substantive right upon the inmates. Hence, it does not

give rise to a protected liberty interest requiring the procedural protections
envisioned by the fourteenth amendment." Buckley v. Barlow, 997 F.2d 494,

495 (8th Cir. 1993)(quoting Azeez v. DeRobertis, 568 F.Supp. 8, 10 (N.D. 111.
1982)). Therefore, McPeek fails to state a claim upon which relief may be
granted, and his claims are dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(l).
8.

Search at Yankton

McPeek alleges that his rights were violated when he was searched at
Yankton County Jail. "In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme
Court articulated a balancing test for determining whether searches conducted

on pretrial detainees were reasonable under the Fourth Amendment." Sema v.
Goodno, 567 F.3d 944, 949 (8th Cir. 2009). In this balancing test, "Courts

must consider the scope of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in which it is
conducted." Bell v. Wolfish, 441 U.S. 520, 559 (1979). While McPeek claims he
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was searched "in a degrading manner," Doc. 8 at 22, he does not explain how
the search was degrading or allege any facts that would cause this Court to
weigh the Bell factors in his favor. Therefore, MePeek fails to state a claim upon
which relief may be granted, and his claim is dismissed pursuant to 28 U.S.C.

§§ 1915{e){2)(B)(ii) and 1915A(b)(l).
V.

ORDER

Accordingly, it is ORDERED
1. MePeek fails to state a claim upon which relief may be granted against
Bon Homme County Sheriff Kelsey, Stephanie Born, Unknown
Northwest Shuttle Agent, Fabio Moran, Unknown Maricopa County
Attorney, Unknown Mesa Police, Unknown Apache County Officers,
Unknown Montezuma County Officers, Sgt. Burke, Unknown Male
Nurse, Unknown La Plata County Officers, Unknown Castle Rock
Officers, Unknown Boulder Officers, Sgt. Munsch, Cpl. Muhlbeier,
Jim Valaskez, Officer Hanes, Officer Kelly Young, Lisa Rothschadl,
and Unknown South Dakota Transport Officers, and these defendants
are dismissed from the case pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(l).
2. MePeek states a claim that he was denied adequate medical care in

South Dakota and states a claim that his Due Process rights were

violated when he was put in segregation in South Dakota. The
remainder of McPeek's claims are dismissed pursuant to 28 U.S.C.

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§§ 1915(e)(2)(B){ii) and 1915A(b)(l) for failure to state a claim upon
which relief may be granted.

3. The Clerk shall send blank summons forms to McPeek so he may
cause the summons and complaint to be served upon the defendants.
4. The United States Marshal shall serve a copy of the amended
complaint(Doc. 8), Summons, and this Order upon defendants
Unknown Pennington County Officers, Sgt. Cass, and Jail
Administrator Payer as directed by McPeek. All costs of service shall
be advanced by the United States.

5. 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.

6. McPeek will serve upon defendants, or, if appearance has been
entered by counsel, upon their counsel, a copy of every further
pleading 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.

7. McPeek 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 District of South Dakota Civil Local Rules while this case

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is pending.

Dated March 3^*! 2017.
BY THE COURT:

ROBERTO A. LAN<
UNITED STATES DISTRICT JUDGE

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