Salway v. Wilson et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
AUSTIN SALWAY,
Plaintiff,
vs.
LT. WILSON, LIEUTENANT SHERIFF AT
PENNINGTON COUNTY JAIL, INDIVIDUAL
AND OFFICIAL CAPACITY; UNKNOWN
MEDICAL STAFF, NURSE AT
PENNINGTON COUNTY JAIL, INDIVIDUAL
AND OFFICIAL CAPACITY; LISHA SMITH,
MEDICAL NURSE AT PENNINGTON
COUNTY JAIL, INDIVIDUAL AND
OFFICIAL CAPACITY; PENNINGTON
COUNTY SHERIFF'S DEPARTMENT,
RESPONDEAT SUPERIOR AT
PENNINGTON COUNTY JAIL,
Defendants.
5:22-CV-05069-RAL
OPINION AND ORDER GRANTING
PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS AND
1915A SCREENING FOR DISMISSAL
Plaintiff Austin Salway filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Doc. 1.
Salway was an inmate at the Pennington County Jail at the time this complaint was filed. Id. at
1. Salway moves for leave to proceed in forma pauperis and has filed a prisoner trust account
* Salway does not provide facts regarding the reason why he was detained at the Pennington
County Jail. See Doc. 1. He states in his motion for leave to proceed in forma pauperis that his
expected release date was October 24, 2022. Doc. 2 at 1. He is no longer in custody at the
Pennington County Jail. See Current Inmates, Pennington County Jail,
https://www.pennco.org/index.asp?SEC=CDB01E68-46D3-4C6D-9B71-B9E339009D8E (last
visited Oct. 27, 2022). For purposes of this screening, the Court will treat Salway as if he was a
pretrial detainee because he was incarcerated at a county jail when he filed the present action. See
Doc. 1 at 1.
1
Case 5:22-cv-05069-RAL Document 7 Filed 10/28/22 Page 1 of 12 PageID #: <pageID>

report. Docs. 2, 3. Salway has also filed a motion for appointment of counsel. Doc. 4. This Court
now screens Salway's complaint under 28 U.S.C. § 1915A.
I. Motion for Leave to Proceed in Forma Pauperis
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)(l). 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, WriRglesworth, 1 14 F.3d 601, 604 (6th Cir. 1997)).
The initial partial filing fee that accompanies an installment plan is calculated according to
28 U.S.C. § 1915(b)(l), which requires a payment of 20 percent of the greater of:
(A) the average monthly deposits to the prisoner's account; or
(B) the average monthly balance in the prisoner's account for the 6-month
period immediately preceding the filing of the complaint or notice of appeal.
Salway reports an average monthly balance for the past six months in his prisoner trust
account of $0.00 and an average monthly deposit of $30.00. Doc. 3 at 1. Based on the information
regarding Salway's prisoner trust account, this Court grants Salway leave to proceed in forma
pauperis and waives the initial partial filing fee. See 28 U.S.C. § 1915(b)(4) ("In no event shall a
prisoner be prohibited from bringing a civil action ... for the reason that the prisoner has no assets
and no means by which to pay the initial partial filing fee.").
In order to pay his filing fee, Salway must "make monthly payments of 20 percent of the
preceding month's income credited to the prisoner's account." 28U.S.C.§ 1915(b)(2). The statute
Case 5:22-cv-05069-RAL Document 7 Filed 10/28/22 Page 2 of 12 PageID #: <pageID>

places the burden on the prisoner's institution to collect the additional monthly payments and
forward them to the court as follows:
After payment of the initial partial filing fee, the prisoner shall be required to make
monthly payments of 20 percent of the preceding month's income credited to the
prisoner's account. The agency having custody of the prisoner shall forward
payments from the prisoner's account to the clerk of the court each time the amount
in the account exceeds $10 until the filing fees are paid.
28 U.S.C, § 1915(b)(2). The installments will be collected pursuant to this procedure. The Clerk
of Court will send a copy of this order to the appropriate financial official at Salway's institution.
Salway remains responsible for the entire filing fee, as long as he is a prisoner. See In re Tyler,
110 F,3d 528, 529-30 (8th Cir. 1997).
II. 1915A Screening
A. Factual Allegations of Salway's Complaint
Salway claims that wart treatments he received from an unknown medical staff member
and Nurse Lisha Smith at the Pennington County Jail resulted in damage to his fingers. Doc.1 at
2, 5. Specifically, he claims that he placed a sick call on July 2,2022, to be examined after medical
staff applied "excessive amounts of Compound W. . . to areas not affected by warts, resulting in
permanent damage to fingers[.]" Id. He claims that he was seen the next day by the unknown
medical staff member, and she applied "yet more Compound W to warts, as well as unaffected
areas of fingers on both hands[.]" Id. He also claims that the unknown medical staff member told
him that she was "sure that's what it's supposed to do[.]" Id. Salway asserts that Smith applied
more Compound W after he informed her of the original injury, but he makes no claims regarding
Case 5:22-cv-05069-RAL Document 7 Filed 10/28/22 Page 3 of 12 PageID #: <pageID>

when this incident occurred. See icL at 2, 5. He also asserts that Sgt. Johnson took pictures of the
injuries on both his hands. Id. at 5.
Salway alleges that Lt. Wilson told him that the problem had been addressed and denied
him access to the unknown medical staff member's name for the purpose of bringing a civil claim
against the unknown medical staff member. Id. He alleges that he also asked other officers and
the unknown medical staff member for her name and never received an answer. Id. Salway asserts
that he "[e]xperienced pain and suffering at the extreme indifference of medical staff and that
"Lt. Wilson rejected [his] grievance and grievance was unresolved." Id. He brings claims against
Lt. Wilson, the unknown medical staff member, and Lisha Smith in their individual and official
capacities, and he also brings claims against the Pennington County Sheriff Office.3 Id. at 2.
Salway seeks $130,000 in "monetary damages[,]" $25,000 in punitive damages, and "any and
other such relief [the Court] deems just, fit, proper, and equitable." Id. at 8.
B. Legal Standard
A court when screening under § 1915A must assume as true all facts well pleaded in the
complaint. Estate ofRosenberg v, Crandell, 56 F.3d 35,36 (8th Cir. 1995). Pro se and civil rights
complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam);
The exact roles played by the unnamed medical staff member and Smith are unclear from
Salway's complaint. In his statement of facts, he does not specify who applied an excessive
amount of Compound W the first time and states that "unknown medical staff was responsible
for the second application of Compound W. Doc. 1 at 5. But in the defendants section of his
complaint, he states that unknown medical staff repeatedly used Compound W and that Lisha
Smith "put more Compound W on" after she was informed of his initial injury. Thus, this Court
construes Salway's complaint as alleging that the unknown medical staff member injured him by
applying Compound W either the first or second time and that Smith further injured him by
applying Compound W at some point after that.
Salway names the Pennington County Sheriffs Department as a defendant in this lawsuit. Doc.
1 at 2. The defendant's actual name is the Pennington County Sheriff Office. This Court will use
the defendant's actual name in this order.
Case 5:22-cv-05069-RAL Document 7 Filed 10/28/22 Page 4 of 12 PageID #: <pageID>

Bediako v. Stein Mart. Inc., 354 F.3d 835, 839 (8th Cir. 2004) (citation omitted). Even with this
construction, "a pro se complaint must contain specific facts supporting its conclusions." Martin
v. Sareent, 780 F.2d 1334, 1337 f8th Cir. 1985) fcitation omitted); see also Ellis v. City of
Minneapolis, 518 F. App'x 502, 504 (8th Cir. 2013) (per curiam) (citation omitted). Civil rights
complaints cannot be merely conclusory. Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993) (per
curiam) (citation omitted); Parker v. Porter, 221 F. App'x 481, 482 (8th Cir. 2007) (per curiam)
(citations omitted).
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[.]" Bell
Ati. Corp. v. Twomblv, 550 U.S. 544, 555 (2007) (internal citation omitted). If a complaint does
not contain these bare essentials, dismissal is appropriate. See Beavers v. Lockhart, 755 F.2d 657,
663 (8th Cir. 1985) (citation omitted). Twombly requires that a complaint's "[fjactual allegations
must be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true[.]" Twombly, 550 U.S. at 555 (internal citation omitted); see
also Abdullah v. Minnesota, 261 F. App'x 926, 927 (8th Cir. 2008) (noting that a complaint "must
contain either direct or inferential allegations respecting all material elements necessary to sustain
recovery under some viable legal theory" (citing Twombly, 550 U.S. at 553-63)). Further, "a well-
pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged
is improbable, and that a recovery is very remote and unlikely." Braden v. Wal-Mart Stores, Inc.,
588 F,3d 585, 594 (8th dr. 2009) (internal quotation removed) (quoting Twombly, 550 U.S. at
556). Under 28 U.S.C, § 1915A, the court must screen prisoner complaints and dismiss them if
they "(I) [are] frivolous, malicious, or fail[] to state a claim upon which relief may be granted; or
Case 5:22-cv-05069-RAL Document 7 Filed 10/28/22 Page 5 of 12 PageID #: <pageID>

(2) seek[] monetary relief from a defendant who is immune from such relief." 28 U.S.C. §
1915A(b).
C. Salway's Causes of Action
1. Claims Against the Pennington County Sheriff Office
Salway brings claims against the Pennington County Sheriff Office. Doc. 1 at 2. A county
Sheriff Office is "not [a] legal entit[y] subject to suit; therefore, the claims against [it] must be
dismissed." In re Scott Cntv. Master Docket, 672 F. Supp. 1152, 1163 n.l (D. Minn. 1987), affd,
Mvers v. Scott County, 868 F.2d 1017 (8th Cir. 1989); cf. Ketchum v. City of West Memphis, 974
F.2d 81, 82 (8th Cir. 1992) (holding that departments or subdivisions of city government, such as
the police department or paramedic services, "are notjuridical entities suable as such" in a § 1983
action). Also, "a municipality cannot be held liable solely because it employs a tortfeasor—or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory."
Monell v. Dep't ofSoc. Servs., 436 U.S. 658. 691 0978'); see also Larsen v. Minnehaha Cntv. Jail,
2008 WL 4753756, at *2 (D.S.D. Oct. 24, 2008) (finding that the county jail and city police
department could not be held vicariously liable for the actions of its employees). Thus, Salway's
claims against the Pennington County Sheriff Office are dismissed without prejudice under 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
2. Official Capacity Claims for Money Damages
Salway brings claims against the unknown medical staff member, Wilson, and Smith in
their official capacities for money damages. Doc. 1 at 2, 8. These defendants were employees of
the Pennington County Jail at the time of the incidents in question. See ui at 2. "A suit against a
government officer in his official capacity is functionally equivalent to a suit against the employing
governmental entity." Veatoh v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010).
Case 5:22-cv-05069-RAL Document 7 Filed 10/28/22 Page 6 of 12 PageID #: <pageID>

Salway's official capacity claims against the unknown medical staff member, Wilson, and Smith
are equivalent to claims against Pennington County.
"[A] local government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents." Monell, 436 U.S. at 694. A municipal government may be sued only "when
execution of a government's policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy," deprives a plaintiff of a federal right.
Id,; see also Clay v. Conlee, 815 F.2d 1164,1170 (8th Cir. 1987) (finding that "the [governmental]
entity's official 'policy or custom' must have 'caused' the constitutional violation" in order for
that entity to be liable under § 1983).
To establish governmental liability premised on an unofficial custom rather than an official
policy, a plaintiff must allege facts to support a finding of "a continuing, widespread, persistent
pattern of unconstitutional misconduct by the governmental entity's employees" and "deliberate
indifference to or tacit authorization of such conduct by the governmental entity's policymaking
officials after notice to the officials of that misconduct[.]" Brewington v. Keener, 902 F.3d 796,
801 (8th Cir. 2018) (quoting Corwin v. City of Independence, 829 F.3d 695, 700 (8th Cir. 2016)).
A § 1983 complaint does not need to "specifically plead the existence of an unconstitutional policy
or custom to survive a motion to dismiss." CrumpleY-Pattersony. Trinity Lutheran Hosp., 388
F.3d 588, 591 (8th Cir. 2004) (citing Doe ex rel. Doe v. Sch. Dist., 340 F.3d 605, 614 (8th Cir.
2003)). But the complaint must include some allegation, reference, or language that creates an
inference that the conduct resulted from an unconstitutional policy or custom. IdL; see also Doe,
340 F.3d at 614 ("At a minimum, a complaint must allege facts which would support the existence
of an unconstitutional policy or custom.").
Case 5:22-cv-05069-RAL Document 7 Filed 10/28/22 Page 7 of 12 PageID #: <pageID>

Here, Salway makes no claims regarding official policies or unofficial customs. He only
alleges that the unknown medical member injured him when she applied Compound W to his
warts, that Smith further injured him by applying more Compound W, and that Wilson interfered
with his ability to file this lawsuit by refusing to provide the name of a potential defendants. Doc.
1 at 2,5. Thus, Salway's claims against the unknown medical staff member, Wilson, and Smith
in their official capacities for money damages are dismissed without prejudice under 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(l).
3. Individual Capacity Claims and Official Capacity Claims for
Injunctive Relief
"Because vicarious liability is inapplicable to. .. § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official's own individual actions, has violated the
Constitution." Ashcroft v. Igbal, 556 U.S.662,676 (2009).
Thus, each Government official ... is only liable for his or her own misconduct.
As we have held, a supervising officer can be liable for an inferior officer's
constitutional violation only if he directly participated in the constitutional
violation, or if his failure to train or supervise the offending actor caused the
deprivation.
Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010) (cleaned up), Salway's individual capacity
claims must allege that each individual defendant either participated in the unconstitutional
conduct or caused the conduct to occur through a failure to train or supervise the offending actor.
a. Deliberate Indifference to Serious Medical Needs Claims
Salway alleges that the unknown medical staff member who injured his fingers with
Compound W and Smith, who further injured his fingers by applying more Compound W, violated
his Eighth Amendment rights. Doc. 1 at 2, 5. Construed liberally, Salway brings deliberate
indifference to serious medical needs claims against the unknown medical staff member and Smith
in their individual capacities and in their official capacities for injunctive relief. See KL
Case 5:22-cv-05069-RAL Document 7 Filed 10/28/22 Page 8 of 12 PageID #: <pageID>

The Eighth Amendment is not implicated until after "a formal adjudication of guilt in
accordance with due process of law." Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977). A
pretrial detainee's right to be free from punishment is protected by the Due Process Clause of the
Fourteenth Amendment. See id,; Bell v. Wolfish, 441 U.S. 520, 535-37 (1979). The United States
Court of Appeals for the Eighth Circuit has explained that the appropriate standard for Fourteenth
Amendment due process inadequate medical care claims by pretrial detainees is the same
deliberate indifference standard that applies to inadequate medical care claims by prisoners under
the Eighth Amendment. Karsiens v. Lourey, 988 F.3d 1047, 1051-52 (8th Cir. 2021). The
"plaintiff must show that 'officials knew about excessive risks to his health but disregarded them,
and that their unconstitutional actions in fact caused his injuries.' " Id. at 1052 (quoting Senty-
Haueen v. Goodno, 462 F.3d 876, 890 (8th Cir. 2006)). Thus, this Court will apply the Eighth
Amendment deliberate indifference standard.
"[D]eliberate indifference to serious medical needs of prisoners constitutes the
'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." Estelle v.
Gamble, 429 U.S. 97, 104 C1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). "This is
true whether the indifference is manifested by prison doctors in their response to the prisoner s
needs or by prison guards in intentionally denying or delaying access to medical care or
intentionally interfering with the treatment once prescribed." Id. at 104-05 (footnotes omitted).
"This conclusion does not mean, however, that every claim by a prisoner that he has not received
adequate medical treatment states a violation of the Eighth Amendment." Id at 105. "[A] prisoner
must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious
medical needs." Id. at 106. Allegations of negligence will not suffice, nor will mere disagreement
Case 5:22-cv-05069-RAL Document 7 Filed 10/28/22 Page 9 of 12 PageID #: <pageID>

with treatment decisions. Jolly v. Knudsen. 205 F.3d 1094. 1096 f 8th Cir. 2000) fciting Estate of
Rosenbere, 56 F.3d at 37).
The deliberate indifference standard includes both an objective and subjective component.
Dulanv v. Carnahan. 132 F.3d 1234.1239 ('8th Cir. \997) fciting Coleman v. Rahiia, 1 14 F.3d 778,
784 (8th Cir. 1997)). The plaintiff "must demonstrate (1) that [he] suffered objectively serious
medical needs and (2) that the prison officials actually knew of but deliberately disregarded those
needs." Id (citing Coleman, 114 F.3d at 784). "A serious medical need is 'one that has been
diagnosed by a physician as requiring treatment, or one that is so obvious that even a layperson
would easily recognize the necessity for a doctor's attention.' " Coleman, 114 F.3d at 784 (quoting
Camberos v. Branstad, 73 F.3d 174,176 (8th Cir. 1995)). To be liable for deliberately disregarding
medical needs, "the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v.
Brennan, 511 U.S. 825, 837 (1994).
Here, Salway fails to allege facts sufficient to state claims for deliberate indifference to
serious medical needs against the unknown medical staff member and Smith. The injuries to his
fingers are serious medical needs, although his warts are likely not serious medical needs. But
even assuming that both the injuries and the warts are serious medical needs, Salway does not
allege that the unknown medical staff member or Smith knew of but deliberately disregarded those
needs. See Doc. 1 at 2, 5. Instead, he alleges that they injured him while treating those needs and
accuses them of "malpractice[.]" See i(L Thus, Salway's Fourteenth Amendment deliberate
indifference to serious medical needs claims against the unknown medical staff member and Smith
in their individual capacities and in their official capacities for injunctive relief are dismissed
without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(h) and 1915A(b)(l).
10
Case 5:22-cv-05069-RAL Document 7 Filed 10/28/22 Page 10 of 12 PageID #: <pageID>

b. Access to the Courts Claim
Salway claims that Wilson violated his Eighth Amendment rights by denying him access
to the name of the unknown medical staff member that injured him. Doc. 1 at 2, 5. Construing
his complaint liberally, Salway brings a First Amendment access to the courts claim against Wilson
in his individual capacity and in his official capacity for injunctive relief. See id,
"The Constitution guarantees prisoners a right to access the courts." White v. Kautzky,
494 F.3d 677, 679 (8th Cir. 2007). To succeed on a claim for denial of access to the courts, a
plaintiff must show that he suffered actual injury as a result of the defendants' actions. Lewis v.
Casev, 518 U.S. 343, 349 (1996). In order to satisfy the actual injmy requirement, a plaintiff must
"demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded." Johnson
v. Missouri. 142 F.3d 1087. 1089 C8th Cir. 1998) fquoting Lewis, 518 U,S. at 353).
Salway fails to allege an actual injury as required by Lewis. He claims that Wilson denied
him access to the unknown medical staff member's name so that he could file a lawsuit, but he
does not identify a nonfrivolous legal claim that has been frustrated or impeded. See Doc. 1 at 5;
Johnson, 142 F.3d at 1089 (citing Lewis, 518 U,S. at 353). Thus, Salway's First Amendment
access to the courts claim against Wilson in his individual capacity and in his official capacity for
injunctive relief is dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(l).
4. State-Law Medical Malpractice Claims
Salway brings state-law medical malpractice claims against the unknown medical staff
member and Smith for their excessive use of Compound W. Doc. 1 at 2, 5. Under 28 U.S.C. §
1367(a), this Court shall have supplemental jurisdiction over all other claims that "form part of the
same case or controversy" as the civil action over which this court has original jurisdiction. But
11
Case 5:22-cv-05069-RAL Document 7 Filed 10/28/22 Page 11 of 12 PageID #: <pageID>

the court may decline to exercise supplemental jurisdiction if it "has dismissed all claims over
which it has original jurisdiction[.]" 28 U.S.C. § 1367(c)(3). Thus, because all ofSalway's federal-
law claims have been dismissed, this Court declines to exercise supplemental jurisdiction over his
state-law claims. Salway's state-law medical malpractice claims against the unknown medical
staff member and Smith are dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(l).
III. Order
Accordingly, it is
ORDERED that Salway's motion for leave to proceed in forma pauperis, Doc. 2, is granted
and his initial filing fee is waived. It is further
ORDERED that Salway's claims against all defendants are dismissed without prejudice
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l). It is finally
ORDERED that Salway's motion for appointment of counsel. Doc. 4, is denied as moot.
DATED October ^2022.
BY THE COURT:
ROBERTO A. LA^JGE
CHIEF JUDGE
12
Case 5:22-cv-05069-RAL Document 7 Filed 10/28/22 Page 12 of 12 PageID #: <pageID>