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State to pay inmate in federal excessive force lawsuit


State to pay inmate in federal excessive force lawsuit

Sep 26, 2023 | 6:45 pm ET
By John Hult
State to pay inmate in federal excessive force lawsuit
The minimum security center of the South Dakota State Penitentiary in Sioux Falls, pictured on Feb. 16, 2023. (John Hult/South Dakota Searchlight)

The state of South Dakota will pay $6,000 to an inmate who represented himself in a lawsuit over his assault by a correctional officer in 2022.

The settlement, filed this week in federal court, comes on the heels of a state-level trial at which a jury convicted the officer of simple assault.

Shawn Albrecht was the victim in that case against Joshua Westenkirchner.

Former prison employee’s conviction is a rare occurrence in South Dakota

At trial, jurors learned that Albrecht has a history of mental illness and of swallowing objects, and has been hospitalized as a result on multiple occasions. Westenkirchner was among the officers involved in strapping Albrecht to a table in March 2022 to prevent him from swallowing more objects. 

Jurors found Westenkirchner guilty of simple assault for his actions over the course of two days, which included applying pressure to the inmate’s throat and allegedly banging his head into a metal table. Westenkirchner argued that he hadn’t choked Albrecht and disputed the claim that he’d slammed the restrained inmate’s head onto the table. 

The jury found Westenkirchner not guilty of aggravated assault, which is a felony that can draw prison time for the perpetrator of a chokehold.

As the criminal trial worked its way through South Dakota’s Unified Judicial System toward its August trial in Sioux Falls, Albrecht’s civil lawsuit proceeded in the U.S. District Court of South Dakota.

Albrecht alleged that his mistreatment in March 2022 rose to the level of a civil rights violation. In addition to Westenkirchner and one other correctional officer, his self-filed lawsuit named the former and current warden of the South Dakota State Penitentiary, where he lives, and Department of Corrections Secretary Kelli Wasko as defendants. 

At Westenkirchner’s criminal trial, he testified that he’d been “four-pointed” for weeks at a time, meaning he’d been restrained by his hands and feet. It was unclear from the testimony if such setups had been full-day affairs, but he said he’s “one of the few” inmates still tied down after a DOC policy change.

The DOC did not return a message seeking clarification on the practice. The DOC policy on suicide prevention says restraints may be recommended to prevent inmates from harming themselves or others. It also says inmates are to be monitored every 15 minutes while in restraints, and that periods of restraint longer than two hours must be approved by the warden or a designee.

The settlement in Albrecht’s civil lawsuit was filed on Monday. The document was signed by Wasko, Westenkirchner, Penitentiary Warden Teresa Bittinger, former Penitentiary Warden Dan Sullivan and a DOC employee named Ring Kuol-Arob.

It stipulates that the two disciplinary infractions logged on the two days during which the assaults took place will be stricken from Albrecht’s inmate record, and that the DOC will deposit $6,000 into his DOC offender account. Albrecht is serving time for drug and firearm possession in Minnehaha County, and was sentenced to suspended prison time for drug possession and multiple counts of forgery in Codington County. His initial parole date comes in September 2025, according to the DOC’s offender locator website.

The defendants in his civil lawsuit denied all claims of constitutional violations in the settlement. It specifies that the DOC will “adhere to its long-standing practice or policy of not subjecting any inmate to retaliation as a result of his having filed a lawsuit against the State.”

The case was dismissed “with prejudice,” meaning Albrecht cannot bring the case again at a later date based on the 2022 incidents.

The South Dakota Attorney General’s Office represented the state defendants in the case. Tony Mangan, spokesman for that office, said that the document “speaks for itself.”

The DOC did not immediately respond to a request for comment on the settlement.

Ron Volesky, who represented Westenkirchner at trial, declined to comment on the settlement on Tuesday afternoon.