Milk v. Ripperda
| Docket Number | 4:23-CV-04063-KES |
| Decision Date | 02 August 2023 |
| Parties | CORNELIUS MILK, Plaintiff, v. TRAVIS RIPPERDA, Risk Manager SDSP/D.O.C., in his individual and official capacity; UNKNOWN PERSONS AND/OR ENTITIES SYSTEM RISK MANAGEMENT TEAM, SDSP/D.O.C., in their individual and official capacities; RILEY DEGROOT, East Hall Case Mgr., SDSP/D.O.C., in his individual and official capacity; KELLIE WASKO, Secretary of Corrections, D.O.C., in her individual and official capacity; CHAD STRAATMEYER, Former System Risk Manager, in his individual and official capacity; STRAATMEYER'S FORMER SYSTEM RISK MANAGEMENT TEAM AND OTHER UNKNOWN PERSONS AND OR ENTITIES, in their individual and official capacities; DENNY KAEMINGK, Former Secretary of Corrections, in his individual and official capacity; DARIN YOUNG, Former Warden, in his individual and official capacity; MIKE LEIDHOLT, Former Secretary of Corrections, in his individual and official capacity; J.C. SMITH, SE Region Parole Supervisor, in his or her individual and official capacity; DANIEL SULLIVAN, Former Warden, in his individual and official capacity; JOSH KULM, Parole Officer, in his individual and official capacity; AMBER PIRRAGLIA, Director of Prisons, in her individual and official capacity; TERESA BITTINGER, Warden, in her individual and official capacity; UNKNOWN FORMER DIRECTOR OF PRISONS, in his or her individual and official capacity; DEPARTMENT OF CORRECTIONS; PAROLE OFFICER KAYLA OELKERS, in her individual and official capacity; PAROLE OFFICER JAKE ANDERSON, in his individual and official capacity; EXECUTIVE DIRECTOR OF PAROLE SERVICES BRAD LEWANDOWSKI, in his individual and official capacity, Defendants. |
| Court | U.S. District Court — District of South Dakota |
Plaintiff Cornelius Milk, an inmate at the South Dakota State Penitentiary, filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Docket 1. This court granted Milk leave to proceed in forma pauperis and ordered him to pay an initial partial filing fee. Docket 5. Milk timely paid his initial partial filing fee on May 1, 2023. Milk has also moved for leave to amend his complaint and for a preliminary injunction and temporary restraining order. Dockets 12, 15.
Milk has filed several documents with the court that express a desire to amend his complaint and add additional facts relief sought, and defendants. See Dockets 12, 12-1, 17, 19, 20, 21, 22. Under Federal Rule of Civil Procedure 15(a)(1), “[a] party may amend its pleading once as a matter of course within . . . 21 days after serving it[.]” Because defendants have not yet been served and Milk has not previously amended his complaint, Milk is within the window provided by Rule 15(a)(1) and may amend his complaint. Milk's motion for leave to amend his complaint, Docket 12, is granted. This court will now screen Milk's amended complaint under 28 U.S.C. § 1915A.
The facts alleged in Milk's complaint are: that he has been incorrectly classified as a violent inmate, causing him to be placed in high security housing while imprisoned and more restrictive parole supervision while out of prison. Docket 1-1 at 4-8. In August 2016, Milk had been incarcerated at the intake unit in the Jameson Annex of the South Dakota State Penitentiary for 60 days. See id. at 4. He was classified to go to the Mike Durfee State Prison, a medium security facility, but he wanted to stay in the State Penitentiary so that his family could visit him more easily and because he was more familiar with that facility. See id. On approximately August 12, 2016, he spoke with System Risk Manager Chad Straatmeyer, who told him that he had an upcoming assessment and that if he wanted to remain at the State Penitentiary, he should “ ‘throw the assessment' by ‘not answering truthfully' or ‘exaggerating' some of [his] responses.” Id. Milk “altered the test by falsifying and exaggerating [his] responses.” Id.
Approximately one year later, the parole board sought to impose his suspended time because he had received a System Risk Level 3 score on his risk assessment. Id. Milk notes that he was only able to view his risk report while with his attorney for a half hour that day, and he states that Id. Milk's Level 3 status kept him incarcerated for two and a half years past his initial parole date from July 2017 to December 2019 and prevented him from earning work discharge credits even though he had a job while incarcerated for almost two years. Id. Instead of being paroled on September 13, 2019, he was sent to a minimum-security prison unit until December 13, 2019. Id. When paroled, he was placed on “intensive supervision[,]” the most restrictive form of parole, and he was required to wear a GPS monitor for six months after his release. Id.
Milk was sentenced to six years in prison with three years suspended for another conviction on December 1, 2022, but he claims that he was supposed to receive a sentence of time served because of the jail time that he had already served. Id. at 5. At the time that he filed his complaint on April 21, 2023, Milk alleged that he was “forced to sit in a maximum security prison on 23 hour per day lockdown even though [his] release date was October 25, 2022.” Id. He alleges that he was told he only had to go back to prison to be assigned a new number, at which point he could go home, but instead he was incarcerated on December 9, 2022, and held for several months. Id.
On February 13, 2023, Case Manager Riley DeGroot told Milk that a mistake was made regarding his parole and that he was supposed to be released on October 25, 2022. Id. They discussed Milk's parole plan, which Milk believed to be release to his home with his fiancee[1]and stepchildren, but three days later, DeGroot informed him that he was required to go to either Glory House or the Arch, transitional facilities in Sioux Falls, when released. See id. DeGroot later told Milk that the Arch would not work because his “[substance] usage while on parole wasn't severe enough for them [to] help [him].” Id. at 6. Because DeGroot claimed that Glory House had no open beds until July, Milk was required to spend further time in the State Penitentiary. Id. Milk claims that his fiancee called Glory House and was told by a counselor that the waiting list is rarely over two months and that she called the Arch and was told that they “accept ‘pretty much everyone' ” and they do not “deny anyone for ‘not enough drug and alcohol use.' ” Id. at 5-6. DeGroot recommended Milk speak to his Parole Officer, Josh Kulm, or to the Risk Manager, Travis Ripperda. Id. at 6. Milk asked if these issues were caused by “that stupid assessment [he] altered by lying on 7 years ago[,]” and DeGroot replied, Id. Milk wrote a letter to Ripperda and claims that he received no response and has not heard from him directly since.[2]Id. He did not write to Kulm because Kulm never responded to a previous letter and because DeGroot told him that Kulm would “do whatever [Ripperda] wanted to and probably not respond.” Id.
In his February 17, 2023, letter to Ripperda, Milk requested that his System Risk Level assessment be reviewed because of the circumstances of his August 2016 evaluation and his good behavior while incarcerated and on parole since then. Id. at 15-17. Ripperda responded that Milk's assessment scores “reflect historical information and cannot be lowered” and that he would remain at System Risk Level 3 classification. Id. at 18. Milk replied in another letter, asking the basis of this historical information and arguing that the “truly violent people” he is housed with either have not undergone System Level Risk assessments or have scores of 0 or 1. Id. at 19-21. In this letter and in a later letter written to Senior Parole Officer Ken Schaaf, Milk claims that he is entitled to a review or reassessment of his System Risk Level score under DOC policy. Id. at 21, 27.
Milk filed a grievance regarding this issue, and he received an Informal Remedy Response on March 9, 2023, denying his request for a reassessment. Id. at 14. In this denial, Milk was informed that “there is no evidence that [he] w[as] advised to exaggerate” and that “[r]eassessment is taken into action if there is more information to add.” Id. Although Milk did not attach his Administrative Remedy Request following the Informal Remedy Response, he attaches an appeal of his grievances that he submitted to South Dakota Secretary of Corrections Kellie Wasko that references his Administrative Remedy Request. Id. at 22. In his appeal, Milk asked to have his System Risk Level score either reassessed or reduced to zero and inquired about the change in his parole plan from being home on parole to being sent to Glory House. Id. Wasko denied the appeal and wrote that she “agree[d] with the recommendations put forth by classification staff and the subsequently approved parole plan.” Id. at 23.
Milk was released on parole on April 20, 2023, and “forced to go to a Christian based transitional house called ‘Washed Clean[.]' ” Docket 17 at 1. He claims in a supplement filed after his initial complaint that Parole Officer Aileen Winters, Parole Officer Kayla Oelkers, and Schaaf all previously deemed his house “suitable, safe and positive” for his parole but that he was placed at Washed Clean in retaliation for filing this lawsuit. Id. Although Milk participated in all programming at Washed Clean, he was terminated for “[p]utting [his] family before God and [himself]” and...
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