5/12/18

Mother of Brady Folkens petitions for change of venue, hearing in federal court

UNITED STATES DISTRICT COURT OF SOUTH DAKOTA

SIOUX FALLS SOUTH DAKOTA

DAWN VAN BALLEGOOYEN, Guardian/ Mother of

The BRADY FOLKEN (DECEASED)

PLAINTIFF

v. District Court Judge



Magistrate:

DENNIS DAUGAARD, in his capacity as GOVERNOR

For the STATE OF SOUTH DAKOTA;

DENNY KAEMINGK, in his capacity as SECRETARY for the

SOUTH DAKOTA DEPARTMENT OF CORRECTIONS;

DANIEL MART in his capacity as CORRECTIONAL OFFICER;

AARON RODGERS in his capacity as CORRECTIONAL OFFICER;

NANCY FLEMING in her capacity as CORRECTIONAL OFFICER;

JEFF HAIAR, in his capacity of DIRECTOR for

STAR ACADEMY; AARON BROWNSON in his

Capacity as COUNSELOR for STAR ACADEMY;

DR. HEITH WADDELL in his capacity as PHYSICIAN

For CUSTER REGIONAL HEALTH HOSPITAL; BRENT R. PHILLIPS in his capacity as

PRESIDENT/CEO on behalf of REGIONAL HEALTH HOSPITAL

CUSTER REGIONAL HEALTH HOSPITAL; STEPHANIE LAHR in her

Capacity as CHIEF INFORMATION OFFICER AND MEDICAL INFORMATION

OFFICER; ROBERT PRESTON in his capacity as acting SUPERVISE PHYSICIAN contracted through CUSTER REGIONAL HEALTH HOSPITAL; ROBERT VAN DEVENTER, in his capacity as PHYSICIAN ASSISTANT contacted through CUSTER REGIONAL HEALTH HOSPITAL for STAR ACADEMY;

ETAL,



DEFENDANT (S)

CHANGE OF VENUE

TO THE HONORABLE DISTRICT COURT OF SOUTH DAKOTA, comes now Plaintiff Dawn Van Ballegooyen seeking a change of venue under 28 U.S.C.§ 1391 (a) (1) (2) (b) (1). Plaintiff original complaint was filed (docket#4:14-cv-04186) which was dismissed and directed in changed venue in state court. Plaintiff seek return jurisdiction due to the complex issues which has arisen from the death of her son, Brady Folkens violation of the United States Constitution 8th and 14th amendment. Additional evidence and statements provided to Plaintiff by the state supports her allege complaint citing state created a conspiracy to cover up the death and cause of.

Plaintiff assert the State of South Dakota wanted to boost the recognition of Star Academy in recruiting and federal grants sent juveniles who were not a threat to the rehabilitation facility on charges not warranty instead of alternative solutions. Brady Folkens had tested positive for THC of marijuana in his urine. There was nothing in his record he was ever charge with such possession prior to suggesting he was addictive to any illegal substance.

Plaintiff’s Pleadings will support (1) Medication prescribed to Brady caused side effects which required hospitalization. (2) Star Academy governed by the State of South Dakota failed to monitor the side effects which lead to Brady’s hospitalization resulting in his death could have been preventative. (3) State of South Dakota, Star Academy and Department of Correction has attempted to cover up the death of Brady in violating this 8th amendment caused cruel and inhuman treatment and (4) Custer Regional Hospital became a party of the state failing to provide adequate care for Brady which lead to his death. Both the state and hospital violated his due process and his 8th amendment right.

JURISDICTION

The court has jurisdiction under 28 U.S.C§ 1331 seeking a federal question jurisdiction before this court.

PLAINTIFF APPEARING BEFORE THE COURT PRO SE

Plaintiff, Dawn Van Ballegooyen is petitioning this court pro se on behalf of her Son, Brady Folkens. Plaintiff is filing under Federal Rule of Civ. 25 on behalf of the deceased. Unless Plaintiff obtains counsel, she is appearing a substitute party on behalf of the deceased. Evidence submitted on behalf of the deceased by the Plaintiff shall be taken as the same of the person who would have presented.

The court shall take Plaintiff complaint as true and liberal, Haines v. Kerner, 404 U.S 519, 520-21 92 S Ct. 594, 30 L. Ed. 2d. 652 (1972). This must also give Plaintiff a wider latitude and cannot dismiss an action if there is any valid cause that the court can see even if Plaintiff is not pointing out the right law and presenting it well. Statements made by Plaintiff on behalf of the deceased shall be taken as factual using the diary of the deceased. Plaintiff submission to the court are to be construed liberal and held less stringent than submission of lawyers regardless of failure to cite legal authority, confusion of legal theories, poor syntax, and sentence construction, Bogg v. MacDougall, 454, U.S. 364, 102 S. Ct. 700, L. ed. 2d. 551 (1982).



SUMMARY OF THE COMPLAINT

Brady Folkens was a seventeen (17) year old minor sent to Star Academy, a treatment center ran by the State of South Dakota under Governor Dennis Daugaard Administration. The allege violation of Brady’s parole of an “allege” incident over a detained hat from school. His original charge was testing positive or ingesting marijuana and possible truancy. Faced with Brady being a first-time offender incarcerated for a misdemeanor. Brady’s Mother, Dawn attempted intervention of the state taking custody by enrolling him in a state program called CHINS (a child in need of supervision). Dawn enrolled Brady into CHINS without being provided full knowledge of the program and her parental rights. Brady first stay at the faculty was for three (3) months which he returned better and a well-behaved child. The second stay of incarceration at Star Academy under this parole violation lead to his death.

Brady was not under any medication nor taking any over the counter drugs nor prior to being a resident of Star Academy. During his incarceration at the facility, Brady was prescribed a medication for his acne call Minocycline taken was 200mg two (2) times a day orally. Brady complained shortly after being prescribed about the side effects writing in his daily journal how it was affecting his physical and mental mobility. It’s a daily operation for an employee of Star Academy to read journal entries and to to see his handwriting deteriorating and to continue to give Brady the medication without full knowledge of the side effects. On December 21, 2013, Dawn went to visit Brady at Star Academy when she was approached by Star Academy Counselor Nancy Fleming and was told Brady had been admitted to Custer Regional Health Hospital. Dawn witness Star Director Haiar and five others discussing with Dr. Waddle behind a closed curtain discussing Brady’s condition at Custer Regional Hospital. Brady was semi alert and was able to talk about his future with his mother when he was released he planned on going to school and preparing for college. On or around 2: 30 pm Dr. Waddle informed Dawn that Brady was being transferred to Avera McKennan Hospital due to Custer Regional not having proper equipment to treat him. Brady’s mother Dawn arrived at the Avera McKennan Hospital and was informed fifteen minutes later of Brady’s passing. Certain property of Brady’s was seized by Starr Academy without the express permission from Brady’s estate including his daily journal. Brady’s journal described his side effects of (vomiting) while prescribed Minocycline. Dawn demanded the Governor Daugaard’s office to release Brady’s journal after seeing him at an event. The journal was release intact.

VIOLATION OF BRADY’S 8TH AMENDMENT RIGHT BY STAR ACADEMY

The state of South Dakota, under the administration of Governor Dennis Daugaard neglected to regulate it Star Academy, its staff, Director, administrators, and correctional staff in properly care and custody of Brady, a minor who was incarcerated in a state detention center from cruel and inhuman treatment by not providing medical treatment. Director, Jeff Haiar acting in his capacity of Star Academy intentionally violating Brady’s 8th Amendment rights by failure to provide proper medical treatment causing cruel and inhuman treatment resulting in his death. The court held a person detained in the custody of the government, that person becomes the property of the state. A prisoner should not be deprived of any medical treatment prior to being diagnosed while in custody. The State of South Dakota, the Governor of the state, Director Haiar of Star Academy, its staff, Nancy Fleming Counselor, Aaron Brownson, Aaron Rodgers and Daniel Mart in their capacity as Correctional Officer failed to perform a “mere” ministerial duty resulting in the death of Brady Folkens. Although state employees are immune from lawsuits in the performance of their duty, in Hancock v. Western South Dakota Juvenile Service Center, held state employees are cloaked with immunity only if the employee fails to perform a merely ministerial duty, is liable for the proximate results of his failure to any person to whom he owes performance of such duty, (quoting Ritter v. Johnson, 465, N.W. 2d. 196, 198 ( SD 1991).

Brady Folkens was entitled to the same equal protection of medical treatment during as a prisoner by Star Academy which in where the care was not properly given which lead to his death.

CONSPIRACY AGAINST THE PLAINTIFF CAUSED BY THE STATE

When Plaintiff arrived at Custer Regional Hospital she noticed five (5) Star Academy employees including Jeff Haiar who was discussing the incident when Dawn received a call from Judge Steve Polchow, Eastern Division of South Dakota Juvenile Court. Judge Polchow asked Dawn did she want return custody of Brady returned which she accepted custody. Yet, Star Academy did not return him to Dawn for her to take him to another hospital. Brady was not returned to the custody of his Mother, Dawn but instead transported to Avera McKenna Hospital after he died enroute. After Brady’s death Plaintiff, Dawn received medical bills from the various hospitals for medical services of Brady from six (6) to (8) months.

Plaintiff, Dawn demanded from Star Academy and to Governor Daugaard demanding the release of Brady’s journal. The journal contained critical information related to the side effects of the drug prescribed to him by Star Academy. Information related to his death has been contradicting the state and Custer Regional Hospital. Dawn hired an independent Physicians to determine the original cause of Brady health issues which lead him to Custer Regional Hospital and his untimely death. Information related to the cause of death has been altered on the death certificate 18 U.S.C§ 1519.

CUSTER REGIONAL HOSPITAL FAILURE TO PROVIDE PROPER CARE OF MINOR IN STATE CUSTODY

The second part of Plaintiff’s complaint deals with the care Brady received when he was transported to Custer Regional Hospital. Brady was transported from Star Academy to the hospital at or around 9 am on December 21, 2013. Plaintiff, Dawn arrived at the hospital around 1 pm after learning that Brady was rushed to the hospital when she arrived for her visit with him. At 2pm, Dr. Waddell informed Dawn the hospital did not have the equipment to properly care for Brady and made arrangements for Brady to be transported to Avera McKennan hospital eight (8) hours away instead of a medical facility which was forty-five (45) minutes away. Brady Folkens died enroute to Avera McKennan Hospital.

The first part of the complaint is Custer Regional Hospital is liable in association to Brady’s death in which the hospital is liable for Brady’s §1983 rights. A Physician who may have a private practice and contracted with a hospital to provide care for an inmate is acting on behalf of the state when it provides medical attention to an inmate, Estelle v. Gamble, 429, U.S 97, 97 S Ct. 285. Brady was in the custody of Star Academy who transported him to Custer Regional Medical. When it was discovered Custer Regional could not properly care for him, the state and Custer Regional began to cover up their wrongdoing by placing the responsibility back to Dawn.

Custer Regional Hospital violated Brady’s 8th amendment right causing a violation of §1983 of his due process causing of cruel and inhuman treatment.

THE LOSS OF BRADY FOLKENS

Brady Folkens was the Second to the youngest of Dawn Van Ballegooyen’s four children. Brady was a normal seventeen-year-old who was at the age of experimental issue. He tried marijuana but there was not proof of an addiction to the drug. There are children who committed truancy but are not addictive to illegal substance as well. The state in its attempt get higher attendance to Star Academy to being federal funding for this project, sent Brady there for treatment without his due process. Brady’s due process was immediately violated. Simply put, Brady should not have been a candidate for Star Academy and should have been given alternative measure with the family unit in mind instead of treating him in a manner of a juvenile with a harsher charge or background. Brady’s due process of the court was violation as well. Prisoners who are charged less as an adult have been given probation, community service as alternative sentencing, and on a first offense and not sent directly to state confinement. This was the hardest time for a first offender.

Brady was provided medication for the treatment for acne. Minocycline is the antibiotics group in which when the side effects were mentioned or revealed he should have been taken off as a precaution. Photos of Brady prior to this death will be presented to the court weeks before his death will show his acne was not causing any medical or social issue which would have resulted in Star Academy or any Physician to prescribe medication. Acne is a cosmetic issue which can be contain by over the counter remedies or to a Dermatologist. In the reports from Starr Academy have no documentation the medication prescribed was from a Dermatologist. Minocycline is in the group of the antibiotics and should have sought to see by prior physician if he had any allergic reaction to antibiotics. Dawn will never see Brady finish high school or go to college, graduate, get marry or have any grandchildren.

The stress on the family itself is extreme. Attempting to find the truth about his death has been extreme stressful. Plaintiff acknowledge no amount of money will make her whole and therefore she is seeking statutory and punitive damages.

IT IS THEREFORE PLAINTIFF:

The change of venue be before this court.
The court has complete jurisdiction over this matter.
The court order the South Dakota to change the death on Brady death Certificate to the real cause of death.
Plaintiff seeks statutory and punitive damages for the cause of death of Brady Folkens against the State of South Dakota.
Plaintiff seeks statutory and punitive damages for the cause of death of Brady Folkens against Star Academy and its staff,
Plaintiff seeks statutory and punitive damages for the cause of death of Brady Folkens against Custer Regional Hospital and its staff
The court award Plaintiff any additional relief she is entitled to.

Respectfully Submitted,



Dawn Van Ballegooyen

303 Thunder Lane

Brookings, SD 57006

CERTIFICATE OF SERVICE

A copy of this pleading has been mailed to the opposing party on ____ May 2018 by delivery confirmation for Custer Regional Hospital, attention legal Counsel though the United States Postal Service. A copy has been provided to the State of South Dakota by hand delivery and my mail through the United States Postal Service on ____ May 2018

Respectfully,

Dawn Van Ballegooyen

Copy of original document linked here. Docket number in federal court - 4:18-cv-04051-KES Van Ballegooyen v. Daugaard et al.

No comments: