East v. South Dakota
| Decision Date | 14 February 2023 |
| Docket Number | 4:22-CV-04126-RAL |
| Parties | DONALD EAST, Plaintiff, v. STATE OF SOUTH DAKOTA; SECRETARY OF CORRECTIONS KELLIE WASKO, INDIVIDUAL AND OFFICIAL CAPACITY; WARDEN BRENT FLUKE, INDIVIDUAL AND OFFICIAL CAPACITY; UNIT MANAGE DANIEL SESTAK, INDIVIDUAL AND OFFICIAL CAPACITY; SEX OFFENDER MANAGEMENT PROGRAM JEFF NEIL, INDIVIDUAL AND OFFICIAL CAPACITY; JOHN DOE 1, INDIVIDUAL AND OFFICIAL CAPACITY; OTHER UNKNOWN PERSONS AND ENTITIES, INDIVIDUAL AND OFFICIAL CAPACITIES, Defendants. |
| Court | U.S. District Court — District of South Dakota |
Plaintiff Donald East, an inmate at the Mike Durfee State Prison, filed a pro se civil rights lawsuit under 42 U.S.C. § 1983 Doc. 1. East moves for leave to proceed in forma pauperis and has filed a prisoner trust account report. Docs. 2, 3. East paid $350 towards his filing fee on September 15, 2022.
Under the Prison Litigation Reform Act, a prisoner who “brings a civil action or files an appeal in forma pauperis ... shall be required to pay the full amount of a filing fee.” 28 U.S.C. § 1915(b)(1). The Court may, however, accept partial payment of the initial filing fee where appropriate. Therefore, “[w]hen an inmate seeks pauper status, the only issue is whether the inmate pays the entire fee at the initiation of the proceeding or over a period of time under an installment plan.” Henderson v. Norris, 129 F.3d 481,483 (8th Cir. 1997) (per curiam) (alteration in original) (quoting McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997)).
East reports an average monthly balance for the past six months in hi s prisoner trust account of $95.20 and an average monthly deposit of $161.34. Doc. 3 at 1. Based on the information regarding East's prisoner trust account, this Court grants East leave to proceed in forma pauperis. The total civil complaint filing fee is $402. Because prisoners who are granted leave to proceed in forma pauperis do not have to pay the $52 administrative fee, they only owe $350. East has already paid $350 towards his filing fee. Thus, East has paid his filing fee in full.
East claims that sexual assault of inmates by other inmates and by prison staff is common in Mike Durfee State Prison and in South Dakota Department of Corrections (SD DOC) facilities. See Doc. 1 ¶¶ 11, 39. He claims that the S.D. DOC has a policy or custom of deterring inmates and staff from reporting sexual assault and harassment. Id. ¶ 1. East alleges that those who report these incidents are retaliated against and that the S.D. DOC has failed to “adopt, implement, and follow” national standards regarding prison sexual assault including the Prison Rape Elimination Act (PREA). Id. He asserts that S.D. DOC facilities also fail to follow their own guidelines and “commit fraud and falsify records in order to be in compliance to receive federal funding.” Id. ¶ 12.
East provides examples of what he believes is a South Dakota prison system culture that is “often indifferent to preventing prison rape.” Id. ¶ 39. He states that night shift personnel would announce safe words and instruct inmates to sleep one person to a bunk. Id. ¶ 40. He claims that news reports have covered female guards who complained of a culture of sexual abuse and harassment. Id. ¶ 44. He asserts that these complaints were covered up and led to the firing of former South Dakota State Penitentiary Warden Darin Young and the early retirement of former Secretary of Corrections Mike Leidholt. Id. ¶ 45. He provides several examples of prison officials and prison contractors engaging in sexual acts with inmates and alleges that criminal charges only followed when two involved inmates died by suicide. Id. ¶¶ 48-55. .East claims that prison staff members have announced that they may remove recreational weights and eliminate the Special Operations Response Teams from S.D. DOC facilities, actions he believes would make inmates more violent. Id. ¶¶ 57-59.
East provides details of sexual abuse that he allegedly underwent when he arrived at the State Prison in 2014. See id. ¶ 61-107. He alleges that he and another inmate were targeted by Inmate A, who lived in a different unit in his building. Id. ¶¶ 65, 67. East was transferred to Inmate A's unit and housed with Inmate A. Id. ¶¶ 69-70. Inmate A initially befriended East but then started making sexual comments and advances towards him. Id. ¶¶ 71, 73. East claims that another inmate “wrote a detailed kite about what he saw East had suffered from Inmate A.” Id. ¶ 76. He states that he was then called into a meeting with Special Security Lieutenant Loewe and that Inmate A followed him and saw that he was meeting with Special Security. Id. ¶ 77. East alleges that he provided Loewe with a detailed list of times and dates when he was abused by Inmate A. Id. ¶ 80. Loewe told East that he would look into it and dismissed him, and Inmate A approached East as he left the meeting, demanding to know what happened. Id. ¶¶ 81-82. East states that he was called back later that day and that Loewe told him that the bunk is a blind spot with no cameras, so there was nothing they could do but move him because State Prison officials wanted to keep Inmate A out of trouble to ensure he received parole. Id. ¶ 85. He also states that Inmate A was eventually moved to a different unit after two more PREA complaints were filed against him. Id. ¶ 107.
East claims that he was called into the Unit Coordinator's Office after he filed for clemency with the Board of Pardons and Paroles in 2018. Id. ¶¶ 89-90. He claims that Special Security Captain Kaufenberg handed him a page from his application that detailed Inmate A's abuse and asked him, “[W]hat the fuck is this[?]” Id. ¶¶ 92-93. East alleges that Kaufenberg took him to the dimly lit Disciplinary Housing Office in the Segregated Housing Unit and asked for more information, telling him, “(W]ell you said this fucking happened so get to talking.” Id. ¶¶ 95-96. .
He alleges that Kaufenberg insisted he never reported the abuse to Loewe because Loewe never filed a report. Id. ¶ 97. East states that the next day, he was called into Loewe's office to meet with Loewe and Kaufenberg, at which point Loewe told Kaufenberg that he made the complaint in question. Id. ¶¶ 100-101. East asserts that he was then handed a form to sign in order to make a PREA complaint but that he was not offered this form in 2015. Id. ¶¶ 102-103.
East claims that he was sexually assaulted by Physician's Assistant Karissa Zimmer, a medical provider at the State Prison, on May 23, 2019. See id. ¶¶ 108-140. He claims that he repeatedly complained of foot pain between January and June of 2019 and that he received surgery in July 2019. Id. ¶ 111. He also claims that he had frequent urinary incontinence during this time and a single incident of bowel incontinence in March 2019. Id. ¶ 112. East asserts that at a visit on May 23, 2019, Zimmer recommended a digital rectal exam to check his rectal sphincter tone. See Id. ¶ 113. He states that he expressed his discomfort with a female provider conducting the exam and asked Zimmer if a male provider could do the exam instead. Id. ¶¶ 116,118. He claims that a male nurse was working at the time and that a male doctor also worked at the State Prison. Id. ¶ 118. He alleges that Zimmer told him, “[Y]ou have two options, one you let me stick my finger up your butt and sign a consent form, so I can't be held liable, or you sign a refusal form stating you are refusing medical treatment.” Id. ¶ 119. East alleges that signing the refusal form would cost him his future foot appointment, so he consented to the exam. Id. ¶¶ 120-121. East also alleges that he told Zimmer the exam was unnecessary because his bowel incident was two months ago. Id. ¶ 122. East further asserts that he “does not recall actually signing a consent form.” Id. ¶ 123.
East claims that Zimmer's rectal exam lasted minutes and was not conducted with proper lubrication, causing him pain. Id. ¶¶ 125, 128-129, 131, 135. He also claims that Zimmer never inspected his anal skin or instructed him to clamp down, as is normally done during this exam, and that she conducted the exam “for the purpose humiliating, degrading, or demeaning” him. Id. ¶¶ 115,127,130. East asserts that the assault “rekindled the memories of the prior sexual abuse [he] suffered throughout 2014-15[.]” Id. ¶ 136. He also asserts that he has refrained from seeking further medical treatment for other issues because of his desire to avoid Zimmer. Id. ¶ 140.
East alleges that Mike Durfee State Prison Warden Brent Fluke has failed to report sexual abuse in violation of federal law. See id. ¶¶ 141-187. East alleges that he filed a prior federal civil lawsuit in 2019 in which he claimed that he had been sexually abused while in prison. Id. ¶ 146. He claims that Fluke was served in this lawsuit, filed an answer, and filed a motion for summary judgment. Id. ¶¶ 148, 150, 152. East states that he filed a response to the motion for summary judgment which contained, in bold lettering, “SEXUAL ABUSE - ZIMMER[.]” Id. ¶ 154. East contends that Fluke did not report or investigate his allegations of sexual abuse at any time. Id. ¶¶ 149,151,153,155,157,161,164,166,168. He claims that Fluke violated his duty to report sexual abuse and that the various filings in the lawsuit put Fluke on notice of the abuse. See id. ¶¶ 169, 171. East further alleges that he spoke with PREA Coordinator Brittney Lengkeek and asked her what the implications would be if South Dakota were noncompliant with the PREA because of...
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