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Boyter v. Pennington Co. Sherrif Dept.

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

September 27, 2015

JAMES BOYTER, a/k/a JAIMIE BOYDER, a/k/a JAMES BOYDER, a/k/a JAMES KIRBY BOYTER, Plaintiff,
v.
PENNINGTON CO. SHERRIF DEPT.; KEVEN THOM, Pennington County Sheriff at Pennington County Jail; JAMES ROWN HORST, Jail Commander at Pennington County Jail; MIKE PETERSON, Supervisor and Building and Grounds at Pennington County Jail; and PENNINGTON COUNTY AUDITOR, County Lawyer at Pennington County, Defendants.

ORDER

JEFFREY L. VIKEN, Chief District Judge.

INTRODUCTION

Pending before the court is plaintiff James Boyter's pro se complaint pursuant to 42 U.S.C. § 1983. Mr. Boyter is an inmate currently incarcerated at the federal correctional institute in Seagoville, Texas.[1] (Docket 48). The court previously granted Mr. Boyter's motion to proceed in forma pauperis. (Docket 9 at p. 3). Mr. Boyter alleges defendants violated his constitutional rights by confining him in a jail cell with a toilet that flushed loudly and for long periods of time. (Docket 5). The court referred the case to Magistrate Judge Veronica L. Duffy. (Docket No. 23). Defendants and Mr. Boyter filed cross-motions for summary judgment. (Dockets 32 & 38). The magistrate judge filed a report recommending the court grant defendants' motion for summary judgment and deny plaintiff's motion for summary judgment. (Docket 40). Mr. Boyter filed objections to the magistrate judge's report and recommendation. (Docket 42). Mr. Boyter filed a motion for leave to amend the complaint subsequent to the magistrate judge's report and recommendation. (Docket 45).

The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(l). The court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). After careful review of the record, the court adopts the findings and recommendations of the magistrate judge, as modified by this order. The court grants defendants' motion for summary judgment and denies Mr. Boyter's motion for summary judgment.

DISCUSSION

Mr. Boyter raises four objections to the magistrate judge's report and recommendation. Mr. Boyter's objections, liberally construed, [2] are:

1. The magistrate judge improperly concluded he did not explain the duration of the toilet problem;
2. The defendants admitted negligence;
3. Mr. Boyter is in the process of seeking leave to amend the complaint; and
4. The magistrate judge's qualified immunity analysis reaches an incorrect result.

See Dockets 42 at pp. 1, 3; 45.

1. Mr. Boyter's Time with the Toilet

Mr. Boyter objects to the magistrate judge's statement that "Mr. Boyter does not explain how long the toilet problem went on, but he does state that as soon as I sent [a] letter of intent they came and actually fixed [the] problem.'" (Docket 40 at p. 2) (quoting Docket 5 at p. 4 (the amended complaint)). Mr. Boyter references a Turnkey email correspondence between himself and Sgt. Weitgerts as evidence:

[He] went to guards on pod who have went to maintince [sic], [I] have talk[ed] to cprl, sgt [sic], [I] had maint [sic] tell me toilits [sic] were fixed this has been going on since [I] was placed in cell block 3which [sic] was 3 months ago the toilits [sic] flushing and continue to run for extanded [sic] periods... this is ...

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