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Good Voice Elk v. Perrett

United States District Court, Eighth Circuit

November 6, 2013

BYRON GOOD VOICE ELK, Plaintiff,
v.
CORRECTIONAL OFFICER PERRETT; CORRECTIONAL OFFICER NEZIREVIC; LIEUTENANT WENDLING; MEDICAL STAFF KITTY; HEALTH SERVICE; and MENTAL HEALTH, all in their individual and official capacities, Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

KAREN E. SCHREIER, District Judge.

Plaintiff, Byron Good Voice Elk, is an inmate at the South Dakota State Penitentiary (SDSP) in Sioux Falls, South Dakota. On November 16, 2012, plaintiff filed a pro se civil rights lawsuit pursuant to 42 U.S.C. § 1983, alleging that defendants used excessive force against him, engaged in retaliation, failed to protect him from violence, and acted with deliberate indifference toward his serious medical needs, all in violation of the Eighth Amendment. Docket 1 at 3-7. Good Voice Elk also alleged that defendants discriminated against him based on his disability, thus violating the Americans with Disabilities Act (ADA). Docket 1 at 8.

The court screened Good Voice Elk's complaint pursuant to 28 U.S.C. § 1915. Docket 13. In doing so, the court construed his retaliation claim as an excessive force claim and characterized his ADA claim as a prison conditions claim. The court then dismissed one of Good Voice Elk's deliberate indifference claims and his ADA/prison conditions claim for failure to state a claim upon which relief may be granted. Defendants answered, denied all claims against them, and asserted various affirmative defenses. Docket 21.

On April 18, 2013, the court granted Good Voice Elk leave to amend his complaint. Docket 31. Good Voice Elk filed an amended complaint on May 10, 2013, this time alleging one ADA claim and one excessive force claim. Docket 32. Once again, the defendants answered, denied all claims against them, and reasserted various affirmative defenses. Docket 33. Defendants now move for summary judgment. Docket 34. Good Voice Elk has not responded to the motion for summary judgment and the time for response has passed. The court has considered the arguments set forth by defendants, and for the reasons set forth herein, the court grants defendants' motion for summary judgment.

FACTUAL BACKGROUND

According to defendants' statements of undisputed material facts, which have not been objected to by Good Voice Elk[1]:

Plaintiff is an inmate in the custody of the South Dakota Department of Corrections (DOC). Docket 36 at ¶ 1. He is incarcerated at SDSP. Docket 36 at ¶ 1. On the evening of June 1, 2012, Officer Nick Anderson discovered Good Voice Elk and inmate Jeremiah Hart "holding each other in an embrace with their heads obscured in what appeared to be a kissing position with each other." Docket 35-1 at ¶ 3; Docket 36 at ¶ 17. Because it is a major prohibited act for any inmate to "engage in consensual sexual contact and/or unnatural acts or propositioning sexual contact with any person, " Officer Anderson radioed for backup and directed Good Voice Elk and Hart to "cuff up." Docket 35-1 at ¶¶ 4-5; Docket 35-6; Docket 35-8; Docket 36 at ¶¶ 17-19.

Sergeant Jeremy Wendling[2] arrived on the scene shortly thereafter. Docket 35-1 at ¶ 6; Docket 35-5 at ¶ 4; Docket 36 at ¶¶ 20-21. When Hart and Good Voice Elk denied any wrongdoing, Sergeant Wendling "asked Officer Anderson to step out of the section so [they] could further discuss the matter." Docket 35-5 at ¶¶ 4-5; Docket 35-7 at 4. Based on Officer Anderson's assertion that the two inmates had been engaging in prohibited conduct, Sergeant Wendling returned to Hart and Good Voice Elk's cell and directed Hart and Good Voice Elk to "cuff up." Docket 35-5 at ¶ 6; Docket 35-7 at 4; Docket 36 at ¶ 21. He then "explained to both inmates that they were going to be locked up' and placed in segregation as a result of Officer Anderson having witnessed them kissing." Docket 35-5 at ¶ 6; Docket 35-7 at 4. Despite repeated directives from Officer Anderson, Sergeant Wendling, and Officer Underberg, [3] the inmates refused to cuff up, and instead stated that they were "suiting up the team." Docket 35-1 at ¶ 6; Docket 35-5 at ¶ 8; Docket 35-6; Docket 35-7 at 4; Docket 35-10; Docket 36 at ¶ 22.

Sergeant Wendling next called Associate Warden Wagner to inform her of the situation. Docket 35-5 at ¶ 9; Docket 36 at ¶ 24. Associate Warden Wagner instructed Sergeant Wendling to "give them a couple more directives, " and if the inmates still refused to cuff up, Associate Warden Wagner authorized the use of cap stun. Docket 35-5 at ¶ 9; Docket 35-7 at 4; Docket 36 at ¶ 24. Sergeant Wendling returned to the jail cell and gave Hart and Good Voice Elk additional orders to cuff up. Docket 35-5 at ¶ 11; Docket 35-7 at 4; Docket 36 at ¶ 26. Sergeant Wendling also "warned them that cap stun would be deployed into the cell if they persisted in their refusal to cooperate." Docket 35-5 at ¶ 11; Docket 35-7 at 4; Docket 36 at ¶ 26.

Because Hart and Good Voice Elk still refused to cuff up, Sergeant Wendling "deployed one burst of cap stun into their cell." Docket 35-5 at ¶ 12; Docket 36 at ¶ 27. A short time thereafter, Hart and Good Voice Elk complied with the directive and cuffed up. Docket 35-5 at ¶ 12; Docket 35-8; Docket 36 at ¶ 28. But as soon the cell door was opened, Hart "came out and started kicking staff." Docket 35-1 at ¶ 9; Docket 35-4 at ¶ 4; Docket 35-5 at ¶ 13; Docket 35-7 at 4; Docket 36 at ¶ 29. When Officer Preston Perrett ordered Hart to cease his resisting, Hart responded by shoving Officer Perrett with his shoulder. Docket 35-4 at ¶ 5; Docket 36 at ¶ 30. Sergeant Wendling therefore called a "Code Red, Code Three, " which "signified that a staff member was in need of assistance and required an all hands' response by correctional officers." Docket 35-5 at ¶ 14; Docket 36 at ¶ 33.

Officers Perrett and Anderson then took Hart to the ground "with the proper force to gain control of the situation, " but Hart continued to kick and "also grabbed [Officer Perrett] by the testicles and started to squeeze." Docket 35-4 at ¶ 6; Docket 35-5 at ¶ 15; Docket 35-7 at 4; Docket 35-11; Docket 36 at ¶¶ 31-32. Officer Anderson eventually pinned Hart's legs together and held them against his body while Officer Amel Nezirevic[4] assisted in putting iron leg restraints on Hart. Docket 35-1 at ¶¶ 11-12; Docket 35-3 at ¶ 5; Docket 35-7 at 4; Docket 35-8 at 2; Docket 36 at ¶¶ 34-35. "Once restrained, Hart was removed from the unit and taken to be decontaminated." Docket 35-1 at ¶ 13; Docket 36 at ¶ 35.

According to defendants, Good Voice Elk was at no time "involved in the unplanned use of force on Inmate Hart." Docket 35-1 at ¶ 14; Docket 36 at ¶ 37. Although Good Voice Elk did verbally threaten the officers, he at no time physically assaulted the officers. Docket 35-1 at ¶ 14; Docket 35-5 at ¶ 18; Docket 36 at ¶ 37. Consequently, Good Voice Elk was not the victim of the use of unplanned physical force, nor was he ever hit, kicked, or slammed to the floor or wall. Docket 35-1 at ¶¶ 14-15; Docket 35-3 at ¶¶ 7-8; Docket 35-4 at ¶ 9; Docket 35-5 at ¶¶ 18-19, 21; Docket 36 at ¶¶ 37-38. Once the officers restrained Hart, Good Voice Elk was escorted out, decontaminated, and examined by health services. Docket 35-7 at 4; Docket 36 at ¶¶ 36-37. Medical staff detected no injuries to Good Voice Elk. Docket 35-1 at ¶ 16; Docket 35-2 at ¶ 5; Docket 35-4 at 10; Docket 35-8 at 2; Docket 36 at ¶ 36.

Good Voice Elk returned to health services on June 5, 2012, with "chronic knee pain stemming from an automobile accident occurring approximately ten years earlier." Docket 35-2 at ¶ 6; Docket 36 at ¶ 40; Docket 39-2. During the appointment, Good Voice Elk never "complain[ed] of any injuries stemming from the alleged trauma inflicted during the cell extraction on June 1, 2012." Docket 35-2 at ¶ 6. Good Voice Elk was seen again on June 16, 2012, this time with concerns about a rash he was experiencing after eating rice. Docket 35-2 at ¶ 7; Docket 36 at ¶ 41; Docket 39-3. Good Voice Elk was seen by health services a third time on June 27, 2012, with complaints of shortness of breath. Docket 35-2 at ¶ 8; Docket 36 at ¶ 42; Docket 39. During these medical examinations, Good Voice Elk denied any recent trauma or falls and exhibited no ...


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