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Estate of Johnson v. Weber

United States District Court, D. South Dakota, Southern Division

May 15, 2014

ESTATE OF RONALD E. JOHNSON, and through its Personal Representative, Lynette K. Johnson; and LYNETTE K. JOHNSON, individually, Plaintiffs,


LAWRENCE L. PIERSOL, District Judge.

This case arises from the death of Ronald E. Johnson, a correctional officer who worked for the South Dakota Department of Corrections at the South Dakota State Penitentiary (SDSP) for years. On April 12, 2011, Ronald Johnson was at work when he was brutally murdered by inmates Rodney Berget and Eric Robert. Plaintiffs Lynette Johnson and the Estate of Ronald Johnson (Plaintiffs) filed a complaint in state court pleading five state law claims and one federal constitutional claim under 42 U.S.C. § 1983 alleging that Defendants created the danger that resulted in the death of Ronald Johnson. Defendants removed the case to federal court pursuant to 28 U.S.C. § 1441(a). This Court has jurisdiction under 28 U.S.C. § 1331 because the complaint includes a federal constitutional law claim. The Court may exercise supplemental jurisdiction over the state-law claims under 28 U.S.C. § 1367.

Defendants filed a motion for summary judgment arguing that they are entitled to qualified immunity because the evidence does not meet the high standard required to prove a state-created danger claim. The brutal murder of guard Ronald Johnson by Berget and Robert shocks everyone's conscience. That, however, is not the test for whether there was a constitutional violation by Warden Weber and other Defendant South Dakota State Penitentiary employees. Likewise, this is not a question of whether Warden Weber and others were negligent or grossly negligent, as those levels of proof do not meet the high burden necessary for finding a constitutional violation. Instead, the question is primarily whether the actions and inactions of Warden Weber or any of the other prison employee Defendants shock the conscience. The actions of Warden Weber and the other employees do not shock the conscience, and for that and the following reasons Defendants are entitled to summary judgment on the constitutional violation claim.[1] The remaining five state law claims will be remanded for further proceedings to the South Dakota trial court from which they were removed.


In ruling on a motion for summary judgment, the Court is required to view the facts in the light most favorable to the non-moving party and must give that party the benefit of all reasonable inferences to be drawn from the underlying facts. Agristor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The facts below are presented in the light most favorable to the Plaintiffs in this case.

As part of an escape attempt, inmates Eric Robert and Rodney Berget murdered Ronald Johnson on April 12, 2011, in the Prison Industries building (PI building) at the SDSP in Sioux Falls, near Johnson's post that day.[2] Johnson was a senior correctional officer and was staffing the PI building in place of Officer Craig Baumberger, who was out that day. Johnson and eight shop supervisors were assigned to the PI building.

The Jameson Annex is the only South Dakota Department of Corrections (DOC) facility designated to house maximum custody inmates. On April 12, 2011, the SDSP housed mostly medium custody inmates. On that day, Berget and Robert were maximum custody inmates that, pursuant to DOC policy, were to be housed in the Jameson Annex absent a discretionary "administrative decision" or other similar process that allows them to be housed elsewhere.[3] The DOC's classification policy provides, in part, that, in the Warden's discretion, an inmate may be housed in a facility other than where his custody level suggests. Such a placement requires approval of the deputy warden or an associate warden, the warden, and the Classification and Transfer manager for the DOC. The Defendants moved Berget and Robert out of the Jameson Annex and into West Hall at the SDSP, a facility with lower levels of custody and supervision. Berget was moved to West Hall in June of 2004. Robert was moved there in June of 2009. The "administrative decision" paperwork process was not followed and Defendants did not properly document the transfers or the reasons for transferring Berget and Robert out of the Jameson Annex. Berget resided outside of the Jameson Annex for half of 2004 without any written authorization. Warden Weber testified that DOC policy forbids making deals with inmates, and that he was obligated to comply with DOC policy. Although Warden Weber denies it, the testimony of some other witnesses indicates that Warden Weber made deals to move Robert and Berget into West Hall in exchange for ending their hunger strikes.[4]

On April 12, 2011, both Berget and Robert were living in West Hall at the SDSP, although not in the same cell. According to DOC policy, inmates in the Jameson Annex are subject to direct correctional supervision while inmates in West Hall are not. Witnesses testified that Berget and Robert were not subject to direct correctional supervision while in West Hall.

The Defendants knew the violent criminal histories of Berget and Robert. Berget's criminal history includes a conviction for grand theft in 1977, when he was first incarcerated at the SDSP at the age of 15. His criminal history after 1977 included convictions for grand theft, burglary, escape, kidnapping, and attempted first degree murder. As of April 12, 2011, Berget was serving a life sentence for the attempted murder conviction, and a second life sentence for the kidnapping.[5] When Berget arrived at the SDSP on December 4, 2003, he was housed at the Jameson Annex until his transfer to West Hall in June of 2004. Berget's West Hall housing was continued by Acting Warden, Daryl Slykhuis, in February, 2005, and renewed again in December, 2005, without all of the required signatures on the form. Berget's placement in West Hall was reviewed and confirmed again in December of the following years, up to and including December, 2010. The proper paperwork was not always completed.

Robert was convicted of kidnapping in January, 2006.[6] He was sentenced in Meade County to a term of 80 years in prison. He had no previous criminal history. Shortly after Robert arrived at the SDSP in January, 2006, he was housed in West Hall because he was not a maximum custody inmate. After his arrival, penitentiary officials learned that a woman in Brule County had been raped by Robert in 2002 or 2003, and she had obtained a protection order against Robert. She had been in a relationship with Robert and she did not report the rape at the time it occurred. At Robert's annual classification review on January 8, 2007, his recommended placement was at the SDSP. On September 5, 2007, after he was written up for tampering with a lock, Robert's placement was changed to Jameson and this was renewed in April of 2008 and 2009. He was moved back to West hall on June 24, 2009. That placement was continued by "administrative decision" in April, 2010.

Defendants knew about Berget and Robert's escape histories. In 1984, Berget escaped from the SDSP, for which he was prosecuted and convicted. In 1987, Berget escaped from the SDSP through an air handling unit, for which he was prosecuted and convicted. In 1988, Berget jumped out of a van during a transport. In June, 1991, Berget was disciplined because of his involvement in a proposed escape that was discovered before it was attempted involving some steel mesh over windows in the cell hall that had been cut. In 1994, Berget was disciplined for cutting security bars in the East Hall shower room. In December, 2003, Berget was involved in helping another inmate try to escape from the Lawrence County jail by lifting him over a wall. He was not charged with a crime, but the activity was scored by the DOC as an escape attempt in his classification reviews. Although some witnesses testified that Berget may have been involved with Robert in planning an escape in 2007, there is no evidence that any of the Defendants were aware of his possible involvement, and there are no documented escape attempts for Berget between December 4, 2003 and April 12, 2011. There is some evidence, however, that Berget might have been planning escape attempts. Former inmate Tim Henry indicated that in late 2009 he reported to a DOC employee that Berget and Robert were planning to escape from the penitentiary. Berget's cell was searched in August, 2010, and officers discovered a box cutter razor blade, an exacto knife razor blade, and drill bits. He was cited for possessing unauthorized articles, and he was placed in disciplinary segregation. Except for what happened on April 12, 2011, Berget's escapes or attempts did not involve violence.

Robert was disciplined for attempted escape in June, 2007. A confidential informant told authorities that Robert cut part of a lock in the West Hall shower room at the SDSP. At the time, Robert was working as an orderly in the shower room. As stated earlier, there is some testimony indicating that Berget may have been involved. Robert was given 90 days in disciplinary segregation in the Jameson Annex, and he continued to reside in Jameson until 2009 when he was moved back to West Hall. Robert had no other escape attempts and no escapes in his institutional or criminal history.

As for job assignments, Berget regularly held orderly positions. There are no documented problems with Berget's job assignments before April 12, 2011. Former correctional officer Chester Buie opined in his affidavit that Berget used his jobs to give him the ability to have periods of time where he could move about the penitentiary, unobserved, possibly planning escapes.[7] Berget's job on April 12 was trash recycling orderly, a job he started on March 18, 2011. In that position, Berget would leave and return to West Hall multiple times per day.

Robert was working as a laundry cart pusher on April 12, 2011. He was assigned his job as a laundry cart pusher on December 14, 2009. This involved making round trips each day with a laundry cart between West Hall and the laundry, located in the PI building, which is outside and across the yard, but within the secure perimeter of the SDSP. The round trip typically occurred six times each weekday morning and 10-12 times each weekday afternoon. Correctional officer, Brad Woodward, testified that Robert wanted to work in the shop in the PI Building, but he was not allowed to work there because he had seven escape points for his ...

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