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Prisoner Who Reached $11,400 Retaliation Settlement with South Dakota Jail Tries Again with DOC

by Keith Sanders

On March 31, 2023, most of South Dakota prisoner Travis McPeek’s federal civil rights claims were dismissed against officials with the state Department of Corrections (DOC) – and he was barred from collecting damages on those that were not dismissed because he suffered no physical injury, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e.

McPeek may have expected lightning to strike twice, after winning an $11,400 settlement on earlier retaliation claims against the Yankton County Jail, where he awaited trial on aggravated assault charges that ultimately sent him to state prison.

He was indicted for that after a traffic stop in Tyndell on August 6, 2016, during which he drove over a policeman’s foot and got away. When he was arrested in Mesa, Arizona, on December 15, 2016, he was shot  multiple times with rubber bullets, leaving him with injuries that required hospitalization and medication.

During extradition to YCJ, he was held in various lockups, including Pennington County Jail in Rapid City. Arriving there on January 26, 2017, he was immediately placed in “administrative segregation” or “ad seg” – essentially solitary confinement – reportedly for medical reasons. But jail records later showed he received no medical attention or medication. McPeek understood ad-seg to be retaliation for the assault in Tyndell.

McPeek also claimed the jail refused him medication. He filed multiple grievances to no avail. He then filed a pro se federal civil rights action in the federal court for the District of South Dakota. Defendants moved for summary judgment, and the Court dismissed six claims. But it left claims for inadequate medical assistance and violation of McPeek’s Fifth and Eighth Amendment rights with his placement in ad seg.

The Court found a genuine issue of material fact concerning McPeek’s confinement in ad seg. “Pretrial detainees are presumed innocent and may not be punished,” the Court noted, citing Martinez v. Turner, 977 F.2d 421 (8th Cir. 1992) – the same standard earlier laid out in Bell v. Wolfish, 441 US 520 (1979). But placing a pretrial detainee in ad seg constitutes punishment, the Court continued, citing Chestnut v. Magnusson, 942 F.2d 820 (1st Cir. 1991). McPeek’s medical files stated he was not a medical risk, and YCJ records provided no other explanation for his placement in ad seg. So the Court denied defendants’ motion for summary judgment on McPeek’s retaliation claim.

McPeek moved to appoint counsel, and the Court gr anted the motion. With assistance from attorney Raleigh Hansman, he then reached his settlement with the jail on May 2, 2019. See: McPeek v. Rabe, USDC (D.S.D.), Case No.4:17-cv-04015.

After his transfer to the state DOC, McPeek accused a guard named Myers at Mike Durfee State Prison (MDSP) of sticking his hand down McPeek’s shirt and groping his chest. The prisoner made a report under the Prison Rape Elimination Act (PREA), 42 U.S.C. ch. 147 § 15601 et seq., and he was placed in ad-seg while an investigation began. McPeek claimed that another guard named Klimek eventually told him he was in ad-seg for protection from Myers.

McPeek filed another pro se civil rights action in the Court, accusing prison officials of retaliation when they put him in isolation after filing a PREA report. He also made mail-interference and conditions-of-confinement claims related to his stay in solitary confinement.

The Court wasn’t buying most of these claims. It granted summary judgment to all prison officials in their official capacities on both the retaliation and mail-interference claims. It also granted summary judgment to most in their individual capacities, adding that the absence of a physical injury precluded McPeek under PLRA from recovering compensatory damages against the others. See: McPeek v. Meyers, 2023 U.S. Dist. LEXIS 59076 (D.S.D.).

McPeek filed a motion to reconsider on April 28, 2023. The Court agreed three days later to appoint counsel by attorney Matthew A. Tysdal of Heidepriem, Purtell, Siegel & Hinrichs LLP in Sioux Falls. Soon after, though, on May 12, 2023, McPeek withdrew his motion for reconsideration. The case remains open, and PLN will update developments as they are available. See: McPeek v. Klimek, USDC (D.S.D.), Case No . 4:20-cv-04078.

Additional source: Mitchell Republic