The opinion of the court was delivered by: John E. Simko United States District Judge
REPORT and RECOMMENDATION
(Motion for Summary Judgment, Doc. 30)
Pending is Defendants' Motion for Summary Judgment (Doc. 30). Also pending is Plaintiff's Motion for Appointment of Counsel (Doc. 15). For the reasons more fully explained below, Plaintiff's Motion for Appointment of Counsel is DENIED and it is respectfully recommended to the District Court that Defendants' Motion for Summary Judgment be GRANTED.
Plaintiff filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983 in August, 2009. In his Complaint, Plaintiff asserted that in May, 2009, he was placed in a cell with another inmate who had active tuberculosis. Plaintiff asserted the "SDSP administration" was aware the other inmate had active tuberculosis but failed to inform Plaintiff. Plaintiff claimed that as a consequence, he "contracted an incurable disease that threatens [his] health and life." Plaintiff asserted the Defendants actions rose to the level of deliberate indifference to his health and welfare.
In the "relief" section of his Complaint, Plaintiff requested actual damages in the form of payment of his medical bills, punitive damages in the amount of five million dollars, and injunctive relief in the form of an order by this Court directing the Defendants to implement and follow policies to control exposure to communicable disease in their institutions. He also requested a TRO directing Defendant Al Madsen to refrain from retaliation because Plaintiff "feared for his life."
The Defendants were served suit papers in September, 2009 and filed their Answer in October, 2009. A scheduling order was issued in November, 2009. Attached to the Court's Scheduling Order were copies of the Local Rules of Practice and Federal Rules of Civil Procedure 26, 33, 34, 36, 37, and 56. Defendants filed a Motion for Summary Judgment on April 22, 2010. In support of the motion, Defendants filed a Supporting Memorandum (Doc. 31), a Statement of Undisputed Facts (Doc. 32), the Affidavit of Douglas Weber (Doc. 33), the Affidavit of Al Madsen (Doc. 34), the Affidavit of Clifton Fantroy (Doc. 35) and the Affidavit of Dr. Eugene Regier (Doc. 36). Plaintiff filed nothing in response to the motion except a letter dated May 6, 2010 which does not address the issues raised in his Complaint or the summary judgment motion.*fn1 See Doc. 37. This matter is therefore ripe for decision.
"A Plaintiff's verified complaint is the equivalent of an affidavit for purposes of summary judgment, and complaint signed and dated as true under penalty of perjury satisfies the requirements of a verified complaint." Roberson v. Hayti Police Department, 241 F.3d 992, 994-95 (8th Cir. 2001). However, if the allegations in the verified complaint consist of nothing more than conclusory allegations, they are insufficient to overcome a summary judgment motion. Roberson v. Bradshaw, 198 F.3d 645, 647 (8th Cir. 1999). Plaintiffs' Verified Complaint alleges the Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment because they were deliberately indifferent to a serious medical need. Specifically, he asserts they knowingly placed him in the same cell with another inmate who was ill with an active case of tuberculosis, and as a result Plaintiff became ill with "an incurable disease." To prevail, however, Plaintiff must provide through discovery, affidavits, and/or depositions more than conclusory assertions.
In this case, some of the Defendants' undisputed facts contradict the conclusory allegations contained in Plaintiff's verified Complaints. These contradictions do not necessitate the denial of Defendants' motion. The Local Rules of Practice for the United States District Court, District of South Dakota require the party opposing a summary judgment motion to respond to the moving party's statement of undisputed material facts, and provides "all material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party." See Local Rule 56.1(B),(C)) & (D). "Although pro se pleadings are to be construed liberally, pro se litigants are not excused from failing to comply with substantive and procedural law." Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984). Additionally, a district court has no obligation to "plumb the record in order to find a genuine issue of material fact." Barge v. Anheuser Busch, Inc., 87 F.3d 256, 260 (8th Cir. 1996). Nor is the court "required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Id. Because he did not respond to Defendants' Statement of Undisputed Facts, therefore, Plaintiff has admitted them.
The Court could grant summary judgment without further analysis because a party opposing summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). That said, and out of an abundance of caution, the merits of this case will be briefly examined. The undisputed facts as presented by the Defendants are as follows:
Plaintiff Domach Reath (Reath) is in the custody of the South Dakota Department of Corrections (DOC) and is currently incarcerated at the South Dakota State Penitentiary in Sioux Falls, South Dakota (SDSP) (Doc 1). Defendant Douglas Weber (Weber) is employed by the DOC as warden of the SDSP. Id. Defendant Al Madsen (Madsen) is employed by the DOC as a unit manager at the SDSP. Id. Reath filed this action against Weber and Madsen in both their individual and official capacities. Doc.1.
Reath alleges the Defendants were deliberately indifferent and violated the Eighth Amendment provision against cruel and unusual punishment when they placed Reath in the same cell as an inmate who will be referred to by his initials (KI).*fn2 Reath alleges KI had tuberculosis (TB) at the time he shared a cell ...