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Dismissal of suit against jail overturned - District Court abused its discretion
A column
By Hazel Bonner
December 29 2003
RAPID CITY – In December 2002, the Pennington County Jail, and federal agents of the United States Marshall Service received an early Christmas present. A lawsuit against them was dismissed by Judge Andrew Bogue of the South Dakota District Court, Western Division in Rapid City.
This Christmas plaintiff Bradley Ham received the early present when the Eighth Circuit Court of Appeals reversed the dismissal on December 22. They said the local federal court had abused its discretion.
Plaintiff Ham had been returned by the US Marshalls Service (USMS) on a fugitive warrant from South Dakota in November, 1999. He had charged with growing marijuana plants in Spearfish in 1998 . While executing the federal warrant, a Texas deputy shot him in the left leg just below the knee.
He underwent a below the knee amputation at Brooke Army Medical Center (BAMC) and then within a week was released to a Texas Jail where he was placed in the infirmary. No prescribed follow-up care was done there.
His stump became infected and while it remained infected the USMS transported him to the Pennington County Jail. During the nine days it took to transport him, he received none of the medications for the infected stump that he had received in the Texas Jail infirmary. He arrived with open oozing sores on his stump. Except for treatment for the infection, he received no medical care, including the care prescribed at BAMC on his release from the hospital, during the entire time he spent in the local jail.
In February 2000 he sued Sheryl Jackson, head nurse of Jackson Nursing Service, and the Sheriff and administrators of the Pennington County Jail. In March 2002, he attempted to join the USMS and South Dakota Agents Doug Ludovissie, office supervisor in Rapid City, and Marshall Whitlock, Chief Deputy USM in the Sioux Falls Office.
Initially the USMS and the individual agents were joined in the lawsuit. However the local District Court determined that he could not sue the USMS or the individual agents. When they were dismissed, the Pennington County Jail sought dismissal of the claims against them saying they could not provide medical care because the USMS refused to authorize it. The court agreed with the defendants and dismissed claims against both the federal and nonfederal defendants.
In an unpublished opinion the Eighth Circuit Court of appeals overturned the dismissal finding it an abuse of discretion. A three-judge panel ruled that Ham had stated a viable claim against agents Ludovissie and Whitelock within the statute of limitations, and that the Court had failed to properly explain why the case against the private and County defendants could not go forward in the absence of the Federal agents.
The appellate court did uphold the ruling that Ham could not sue the USMS except through a Federal Tort Claims Act suit that had to be filed within two years. In reversing the remainder of the dismissal, the court cited Spirit Lake Tribe of North Dakota, a case decided by them in 2001.
Ham is not represented by an attorney. The U.S. Attorney’s office represents the federal agents. Todd Brink of Lynn, Jackson et al represents Sheryl Jackson and James Nelson and Donald Knudsen of the Porter, Nelson et al firm represents the County defendants.
Ham said when he learned of the reversal on December 26, “It is gratifying to know that as a pro se plaintiff, I can be heard, if not in this federal court, at least in the Eighth Circuit Court of Appeals. After what I have suffered in Texas and South Dakota, maybe there is some relief in sight”
Bonner is a free lance writer who writes from her home. She can be reached electronically at hbonpidge1 at hotmail.com; by phone at (605)343-4467; or by mail at PO Box 3712, Rapid City, SD 55709-3712.
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