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Dalrymple v. Dooley

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

September 11, 2014

DANIEL R. DALRYMPLE and LESLIE W. WHITE, JR., Plaintiffs,
v.
ROBERT DOOLEY, Warden; JENNIFER STANWICK-KLIMEK, Associate Warden; SUSAN JACOBS, Associate Warden; LELAND TJEERDSMA, Major, Special Security; JACQUELINE PETERS, Sergeant; NICOLE ST. PIERRE, Mail Room; CORY NELSON, Mental Health; TOM GILCHRIST, Mental Health; MATT FITCH, Laundry; TRAVIS TEERDSMA, Unit Coordinator; TAMMY DOYLE, Unit Manager; LORI DROTZMAN, GED Teacher; KIMBERLY LIPPINCOTT, Case Manager; SUNNY WALTER, Attorney; JAMES HALSEY, C.A.C. Library; GARY CHRISTENSEN, Unit Manager; NANCY CHRISTENSEN, Unit Manager; MARK BIDNE, Paralegal; CARLA GROSSHUESCH, Unit Coordinator; MICHAEL HANVEY, Physician Assistant; TERRY ROMKEMA, Corporal; MICHAEL GROSSHUESCH, Lieutenant; GARY AVDOYAN, Correctional Officer; DANIEL SESTAK, Lieutenant; MARK PISCHEL, Correctional Officer; Defendants.

REPORT AND RECOMMENDATION

JOHN E. SIMKO, Magistrate Judge.

Pending is the defendants' joint motion for summary judgment (Doc.167).

BACKGROUND

On initial screening the court described plaintiffs' allegations as follows:

Dalrymple and White make several claims, some independently, and others jointly.
Dalrymple and White claim that defendants (1) denied plaintiffs access to the courts in violation of the First Amendment; (2) denied plaintiffs the right to correspondence in violation of the First Amendment; (3) denied plaintiffs freedom of religion in violation of the First Amendment; (4) subjected plaintiffs to cruel and unusual prison conditions in violation of the Eighth Amendment; (5) denied plaintiffs access to medical care in violation of the Eighth Amendment; (6) engaged in retaliatory conduct in violation of the Eighth Amendment; (7) violated plaintiffs' Fourteenth Amendment right to equal protection; and (8) violated plaintiffs' Fourteenth Amendment right to due process. Docket 1 at 10-65. To remedy these alleged constitutional violations, Dalrymple and White have made twenty-five requests for relief, including compensatory and punitive damages. Id. at 67-68.

(Doc. 103, p. 6).

On initial screening Counts 2, 3, 6, 7, 9, 10, 14, 25, 26, 27, 32, 33, 36, 37, 38, 39, 40, 44, and 56 survived (Doc. 103, p. 38). Dalrymple/White filed an amended complaint (Doc. 107) which defendants answered (Doc. 111). Simultaneously defendants filed a motion for judgment of the pleadings on behalf of some defendants (Doc. 112) which was granted (Doc. 157, p. 11). In the same Order (Doc. 157, pp. 111-112) plaintiffs' motions for preliminary injunction (Doc. 116 & 119) were denied; plaintiffs' motion for appointment of counsel (Doc. 143) was denied; plaintiffs' motion to compel discovery (Doc. 149) was denied; and plaintiffs' motion to amend the complaint (Doc. 150) was granted.

Defendants have filed a motion for summary judgment (Doc. 167), a statement of facts (Doc. 167-1), memorandum in support of their motion (Doc. 168), together with 17 affidavits: #1 Affidavit Jennifer Stanwick-Klimek, #2 Affidavit Matt Fitch, #3 Affidavit Susan Jacobs, #4 Affidavit Tom Gilchrist, #5 Affidavit Cory Nelson, #6 Affidavit Michael Joe Hanvey, #7 Affidavit Misty Tolsma, #8 Affidavit Nancy Christensen, #9 Affidavit Jackie Peters, #10 Affidavit Travis Tjeerdsma, #11 Affidavit James Halsey, #12 Affidavit Kim Lippincott, #13 Affidavit Nicole St. Pierre, #14 Affidavit Robert Dooley, #15 Affidavit Carla Grosshuesch, #16 Affidavit Tammy Doyle, and #17 Affidavit Lori Drotzmann.

Dalrymple was released on parole on April 22, 2013, and White was released on parole on May 1, 2014 (Doc. 167-1, p. 2, 1 & 2, Statement of Facts). Dalrymple and White have filed nothing to resist the motion for summary judgment.

DISCUSSION

Summary Judgment Standard.

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV, P. 56(a). A party asserting that a fact is genuinely disputed must support the assertion by showing that the materials cited do not establish the absence of a genuine dispute. FED. R. CIV. P. 56(c)(1)(B). If a party fails to properly address another party's assertion of fact as required by Rule 56(c), the court may grant summary judgment if the motion and supporting materials including the facts considered undisputed- show that the movant is entitled to it. FED. R. Civ. P. 56(e)(3).

The record must be viewed in a light most favorable to the non-moving party. Stone Motor Co. v. General Motors Corp., 293 F.3d 456, 465 (8th Cir. 2002). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The substantive law identifies which facts are material. Id. at 248, 106 S.Ct. at 2510. The party moving for summary judgment has the burden to show that there is no genuine issue of fact and that it is entitled to judgment as a matter of law. Id. at 247, 106 S.Ct. at 2509-10. Once the moving party has met its burden, the non-moving party must set forth specific record facts showing that a genuine issue of material fact exists. Stone Motor Company, 293 F.3d at 465. 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.

Analysis.

Because Dalrymple and White have filed nothing to resist the defendants' joint motion for summary judgment, they have failed to address the defendants' assertions of fact as required by Rule 56(c). As a consequence the same Rule provides the court may grant summary judgment if the defendants' motion and supporting materials show the defendants are entitled to it. Defendants' statement of the facts is undisputed.

1 Official Capacity Claims.

Defendants correctly address plaintiff's claims against defendants' in their official capacities;

Plaintiffs have sued all Defendants in their official capacities. The United States Supreme Court has held an action against a state official in his or her official capacity is the same as a suit against the State itself. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). The State, however, has immunity from such actions underthe Eleventh Amendment. The Supreme Court has held "absent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court." Kentucky v. Graham, 473 U.S. 159, 170, 105 S.Ct. 3099, 3107, 87 L.Ed.2d 114 (1985). There has been no waiver of immunity by the State and therefore, Plaintiffs' claims for damages resulting from Defendants' actions in their official capacities are barred.

Doc. 168, p. 3.

2. Exhaustion of Administrative Procedures.

Plaintiffs admit in their complaint that they did not exhaust their administrative remedies. 42 U.S.C. § 1997e(a) provides:

[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

The prisoner must exhaust his administrative remedies even if the precise relief he seeks in his § 1983 lawsuit is not available through the prison grievance system. Booth v. Churner, 532 U.S. 731, 739, 121 S.Ct. 1819, 1824, 149 L.Ed.2d 958 (2001). Also, although § 1997e(a) refers to "prison conditions, " the United States Supreme Court has interpreted that phrase to mean "the PRLA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 992, 152 L.Ed.2d 12, (2002). "... [A] remedy that prison officials prevent a prisoner from utilizing is not an available remedy under § 1997e(a)..." Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001)(internal punctuation and citations omitted). An inmate's subjective belief or prediction that he will not be successful does not render his administrative remedies unavailable and does not relieve him from his obligation to exhaust. Lyon v. Vande Krol, 305 F.3d 806, 809-10 (8th Cir. 2002).

Defendants acknowledge plaintiffs' assertion that plaintiffs have been denied unfettered access to the grievance procedure at the prison (Doc. 168, p. 4.). Defendants explain, however, the denial was a sanction in March of 2012 for plaintiffs' abuse of the grievance system. After the sanction was imposed plaintiffs were still allowed to use the grievance system if they first sought permission from their unit manager and the associate warden of the prison. Plaintiffs have not asserted that they ever asked permission and were denied access to the grievance procedure about any of the claims in their lawsuit. Furthermore, the sanction was lifted a few months after it was imposed (Doc. 168, p. 4). Plaintiffs have neither exhausted the administrative procedures nor provided a legitimate reason for their failure to exhaust the administrative procedure regarding any of their claims in this lawsuit.

3. Qualified Immunity.

(a) The Doctrine.

"Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines. Qualified immunity will be defeated if an official knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the plaintiff, ... The qualified immunity standard gives ample room for mistaken judgments by protecting all but... those who knowingly violate the law. Ambrose v. Young, 474 F.3d 1070 (8th Cir. 2007)(internal quotations and citations omitted). Hence, "[q]ualified immunity, shields government officials from § 1983 damage liability unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Gardner v. Howard, 109 F.3d 427, 429 (8th Cir. 1997).... "[qualified immunity is an immunity from suit rather than a mere defense to liability, and... it is effectively lost if a case is erroneously permitted to go to trial. For this reason, the district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable final decision under the collateral order doctrine notwithstanding the absence of a final judgment." Johnson v. Hay, 931 F.2d 456, 459 (8th Cir. 1991)(internal quotations and citations omitted).

(b) The Test.

"We analyze the officials' qualified immunity claims in two steps. First, viewing the facts in the light most favorable to [plaintiff], we ask whether the official's conduct violated a constitutional right. If the answer is no, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if the answer is yes, we must determine whether the right was clearly established at the time of the deprivation such that a reasonable official would understand his conduct was unlawful in the situation he confronted." Ambrose v. Young, 474 F.3d 1070, 1077 (8th Cir. 2007). This procedure of first determining whether there has been a constitutional violation is often appropriate, but not mandatory. Pearson v. Callahan, 129 S.Ct. 808, 818 (2009). "The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the particular circumstances in the particular case at hand." Id.

(1) Eighth Amendment - Excessive Force.

Defendants correctly address this issue:

Count 1 alleges that Officer Matt Fitch threw an unknown object at Dalrymple resulting in a bruise on Dalrymple's back. Defendants construe the claim as one alleging excessive force in violation of his Eighth Amendment rights.
To demonstrate a violation of the Eighth Amendment, Dalrymple must prove that "the deprivation of rights was sufficiently serious." Irving v. Dormire, 519 F.3d 441, 446 (8th Cir. 2008) (citing Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). Dalrymple must also "prove that [Officer Fitch] had a 'sufficiently culpable state ...

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