Brakeall v. Stanwick-Klemik

• Decision Date: 11 March 2020
• Docket Number: 4:17-CV-04101-LLP
• Parties: WINSTON GREY BRAKEALL, Plaintiff, v. JENIFER STANWICK-KLEMIK, ASSOCIATE WARDEN, INDIVIDUALLY AND OFFICIAL CAPACITY; JOSH KLIMEK, WEST CRAWFORD UNIT MANAGER, INDIVIDUALLY AND OFFICIAL CAPACITY; DENNIS KAEMINGK, SECRETARY OF CORRECTIONS, INDIVIDUALLY AND OFFICIAL CAPACITY; ROBERT DOOLEY, DIRECTOR OF PRISON OPERATIONS AND WARDEN, INDIVIDUALLY AND OFFICIAL CAPACITY; KELLY TJEERDSMA, CORPORAL, INDIVIDUALLY AND OFFICIAL CAPACITY; NICOLE ST. PIERRE, CHAPEL ACTIVITIES COORDINATOR, INDIVIDUAL AND OFFICIAL CAPACITY; TAMMY MERTON-JONES, SENIOR CAC, SDSP, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; ANNIE ANTROBUS, CBM FOOD SERVICES MANAGER, INDIVIDUALLY AND OFFICIAL CAPACITY; UNKNOWN CBM FOOD SERVICES STAFF, INDIVIDUALLY AND OFFICIAL CAPACITY; UNKNOWN DEPARTMENT OF CORRECTIONS STAFF MEMBERS, INDIVIDUALLY AND OFFICIAL CAPACITY; SOUTH DAKOTA DEPARTMENT OF CORRECTIONS, JONATHON FLEEK, CHAPEL ACTIVITIES COORDINATOR IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; LT. MADDOX, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; TIFFANY VOIGT, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; AND BRENT FLUKE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; Defendants.
• Court: U.S. District Court — District of South Dakota

WINSTON GREY BRAKEALL, Plaintiff, v. JENIFER STANWICK-KLEMIK, ASSOCIATE WARDEN, INDIVIDUALLY AND OFFICIAL CAPACITY; JOSH KLIMEK,

WEST CRAWFORD UNIT MANAGER, INDIVIDUALLY AND OFFICIAL CAPACITY; DENNIS KAEMINGK,

SECRETARY OF CORRECTIONS, INDIVIDUALLY AND OFFICIAL CAPACITY; ROBERT DOOLEY,

DIRECTOR OF PRISON OPERATIONS AND WARDEN, INDIVIDUALLY AND OFFICIAL CAPACITY;

KELLY TJEERDSMA, CORPORAL, INDIVIDUALLY AND OFFICIAL CAPACITY; NICOLE ST. PIERRE,

CHAPEL ACTIVITIES COORDINATOR, INDIVIDUAL AND OFFICIAL CAPACITY; TAMMY MERTON-JONES, SENIOR CAC,

SDSP, IN HER INDIVIDUAL AND OFFICIAL CAPACITY; ANNIE ANTROBUS, CBM FOOD SERVICES MANAGER,

INDIVIDUALLY AND OFFICIAL CAPACITY; UNKNOWN CBM FOOD SERVICES STAFF, INDIVIDUALLY AND

OFFICIAL CAPACITY; UNKNOWN DEPARTMENT OF CORRECTIONS STAFF MEMBERS, INDIVIDUALLY

AND OFFICIAL CAPACITY; SOUTH DAKOTA DEPARTMENT OF CORRECTIONS, JONATHON FLEEK,

CHAPEL ACTIVITIES COORDINATOR IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; LT. MADDOX,

IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; TIFFANY VOIGT, IN HER INDIVIDUAL AND

OFFICIAL CAPACITY; AND BRENT FLUKE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; Defendants.

4:17-CV-04101-LLP

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

March 11, 2020

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff, Winston Grey Brakeall, is an inmate at Mike Durfee State Prison (MDSP) in Springfield, South Dakota. Brakeall filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Doc. 1. The Court screened Brakeall's original complaint under 28 U.S.C. § 1915A, he then moved to amend and supplement his complaint. Docs. 12, 17, 19, and 20. This Court granted his motions to amend and screened his amended complaint, dismissing in part and directing service in part. Doc. 22.

Now, defendants, Jenifer Stanwick-Klemik, Josh Klimek, Dennis Kaemingk, Robert Dooley, Brent Fluke, Kelly Tjeerdsma, Nicole St. Pierre, Tammy Merton-Jones, South Dakota Department of Corrections, Lt. Maddox, Jonathon Fleek, and Tiffany Voigt move for summary judgment based on qualified immunity. Doc 98. This Court granted a stay on discovery. Doc. 68. Brakeall opposes defendants' motion for summary judgment. Docs. 140, 141, 142. Defendants replied to Brakeall's opposition. Doc. 147.

FACTUAL BACKGROUND

Viewing the evidence in the light most favorable to Brakeall as the nonmoving party, including the defendants' statement of undisputed material facts, which Brakeall did not object to, the facts are:¹

Brakeall claims that he is nearly seven feet tall and "approaching 400 pounds" when he was transferred to MDSP. Doc. 141 ¶ 3. Brakeall alleges he was first assigned to the top bunk in the Barracks, and when he was transferred to West Crawford when he was "informed [] that there was no medical order that the was too big for a top bunk." Id. Brakeall claims he "was aware that he would be forced to remain wherever his modified bed was for the duration of his incarceration, which is why he waited . . . to request the accommodation." Id. Brakeall argues that he was given a bed accommodation from 1997 until 2012 at both SDSP and MDSP. Id. He asserts that when he would ask Klimek about his mattress extension/bed modification that Klimek would give repeated verbal assurances. Id.

Brakeall asserts that the ice machines (old and new) are unable to keep up with the demands of the population. Id. ¶¶6, 7, 8, 9. He claims that the rooms are not ventilated because air cannot flow through unless the outside wind is blowing right, "[m]oving air will take the path of least resistance form the day hall doors straight down the hall to the fans. Nothing will be sucked through the room windows through the doors and down the hall." Id. ¶ 12. Brakeall submits multiple affidavits of other inmates at MDSP stating there is no ventilation. See Doc. 141-5 at 88-89, 92-93, 95-97, 100, 106-107.

"Each inmate room in West Crawford has a fan mounted on the wall." Id. ¶ 81. Brakeall claims that many of these fans "have their gears stripped and can no longer oscillate." Id. He alleges that some inmates monopolize the fan and other inmates do not try to move the air flow for fear of assault. Id. Personal fans are available, however, Brakeall contests that they cost $32.00 and are overpriced and underpowered. Id. ¶ 82. Brakeall claims that the temperature sensors installed by the DOC are outside air-conditioned offices or in the basement. Id. ¶¶ 85, 86, 87. Brakeall has recorded exterior temperatures reported by the Weather Channel and claims thatanother inmate has stated " 'I've seen thermometers and humidity sensors show the temperatures in my room past 100 with humidity at 80% a lot of times.' " Doc. 141-5 at 95.

Brakeall alleges that there are no "air-conditioned areas at the MDSP where inmates can go if they are in need of relief from the alleged heat." Doc. 141 ¶145. Brakeall claims that "[g]enerally, inmate's rooms are not air conditioned. However, inmates are given a portable air conditioner for their room, if it is determined to be medically necessary. Id. ¶ 167. Brakeall claims that "The defendants do not define the threshold for 'medically necessary.' Id. To the plaintiff's knowledge, there are less than ten air[-]conditioned inmate rooms at MDSP." Id.

Misty Hanvey, who serves as the Clinical Supervisor at MDSP, reviewed Brakeall's medical records from July 2016 to present. Doc. 113 ¶¶ 164, 166. "The only mention of a heat related condition occurred on August 17, 2016. During a medical appointment Brakeall complained of a rash and said that the rash had gotten worse due to the heat." Id. ¶ 169. Brakeall alleges that " 'morbid' in 'morbid obesity' suggest that weight is a comorbidity factor in most medical conditions. Id. His weight is an aggravating factor in reaction to extended periods of extreme heat which affect even thin people." Doc. 141 ¶ 170.

Brakeall claims that the Kosher meals provided by Summit/CBM are not actually in compliance with Jewish dietary laws for "a variety of reasons. Further documentation requires discovery." Doc. 141 ¶ 40. Brakeall claims that rice is simply "self-certified as Kosher" and has not been inspected by religious authority. Id. ¶ 42. Brakeall claims that there is a difference between "self-certified as Kosher" and as "certified by a recognized authority[.]" Id. ¶ 48. A settlement agreement in Heftel v. South Dakota et al, sets for the basis for the DOC's Kosher meal program (5:98:CV-5106, this agreement was approved by the Honorable Judge Karen E. Schreier on March 2, 2000. Doc 113 ¶¶ 15, 16. Although, Brakeall listed this fact as undisputedhe questions whether the diet provided by Summit/CBM can truly be "considered to be in compliance with the provisions of Jewish dietary law, not merely in compliance with the Settlement Agreement reached in Heftel." Doc. 141 ¶ 15. In 2007, an inmate Charles Sisney challenged whether the DOC was complying with the Heftel agreement, and after reviewing the agreement and having an evidentiary hearing the Court found that the DOC was in compliance. Doc. 113 ¶¶ 17, 18. Brakeall claims that the DOC has never had a Jewish authority to inspect the facilities, he bases this requirement from his work as a teenager in a banquet hall where Jewish groups would gather. Doc. 141 ¶ 18.

When Brakeall returned to MDSP in July 2016, he has signed up to participate in 28 Jewish group events, "[i]t is unknown whether he followed through and participated but he was signed up and could have if he wanted to." Doc. 113 ¶ 36. Brakeall notes that he has not attended any of these celebrations because "he felt that to do so with the congregations at MDSP would dishonor his understanding of G-d." Doc. 141 ¶ 36. However, Brakeall claims that Nicole St. Pierre denied him participation in a fast until he filed a grievance and that Jonathon Fleek told him he needed to be a member of a Jewish group in order to observe the fast. Id. ¶ 21. Brakeall claims that the Jewish groups at the DOC are "dogmatically troublesome" to him and to observe holy days with these members would be "a violation of religious tenants among [his] faith . . . a denigration of one's own faith [and] an insult to the congregation upon which one intrudes." Id. ¶ 23. Brakeall claims he has said told officials he would be willing to observe holy days alone in his room but the DOC has cited security issues as a reason to deny such. Id. He alleges that participating with one of the "splinter sects would not honor the plaintiff's faith." Id. ¶ 31.

Brakeall is housed on the first floor of West Crawford. Doc. 113 ¶ 65. The first floor of West Crawford houses a maximum of 63 inmates. Id. ¶ 66. Each floor contains a bathroom andeach bathroom has three shower heads. Id. ¶ 67, 69. Brakeall alleges that the angles of the shower heads are awkward and to get within the water stream one has to be about two feet away from the wall. Doc. 141 ¶ 69. Another shower head allegedly sprays Brakeall to spray up to mid-high. Id. Brakeall claims that the urinals are four inches apart and do not have partitions. Id. ¶ 67. He states "[p]risoners have a strange aversion to rubbing shoulders while urinating and the center urinal is never used." Id. Brakeall claims that he has submitted grievances about having to wait several times to use the restroom. Id. ¶ 68. Inmates are allowed to shower everyday anytime between 5:00 am until 10:30 pm, as long as it is not during count. Id. ¶¶ 71, 72. Brakeall alleges that "he has never seen the bathroom runner cleaning more than once a day." Id. ¶ 76. Brakeall has "never seen unit staff or a guard inspect the bathrooms for cleanliness" and he has allegedly asked officers to open the supply closet so he could restock the toilet paper. Id. ¶¶ 77, 78. Brakeall claims there is black mold and mildew growing in the shower area and that the paint applications do not help the situation. Doc. 141 ¶¶ 92, 93. Brakeall submits affidavits of other inmates that say there is mold and mildew in the shower room. Id. ¶...