United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER ON CROSS MOTIONS FOR SUMMARY
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
Cnstian Cabrera-Asencio ("Cabrera-Asencio") filed
this lawsuit pursuant to 42 U.S.C. § 1983. Doc. 1. This
Court screened his complaint pursuant to 28 U.S.C. §
1915A, dismissed it in part, and directed service. Doc. 9.
Cabrera-Asencio and defendants now move for summary judgment.
For the following reasons, Cabrera-Asencio's motion is
denied, and defendants' motion is granted in part and
denied m part.
is an inmate at the South Dakota State Penitentiary (SDSP).
Doc. 1 On November 5, 2014, Cabrera-Asencio was working in
the SDSP kitchen. Doc 34-1 at 14. Both parties agree that he
was speaking to his boss m Spanish, and she ordered him to
speak English. Id. ; Doc. 28 at 2 Defendants allege
that Cabrera-Asencio then called his bosses in the kitchen
racists; this fact was in the "Incident Details" of
Cabrera-Asencio's Disciplinary Report. Doc. 34-1 at 14.
Cabrera-Asencio claims that he did not call them racists and
that they fabricated this in the report in order to punish
him for something other than speaking Spanish. Doc. 26 ¶
1. He also avers defendants were seeking to "teach him a
lesson" for speaking Spanish. Doc. 28 at 1-2.
was sent to the Segregated Housing Unit as punishment.
Id. at 2. He alleges that when he returned to the
general population, he was harassed and retaliated against
for filing grievances based on prison officials' alleged
mistreatment of him Id. He complained more, which
led to further retaliation. Id.
January 1, 2015, Cabrera-Asencio was again working m the SDSP
kitchen Doc 34-1 at 10. Defendants allege and the
Disciplinary Report states that Cabrera-Asencio said in
Spanish to another prisoner that his boss was a "crazy
witch" and that she "can go to the shit."
Id. Cabrera-Asencio avers that this is untrue and
was made up to punish him in retaliation for complaining of
his mistreatment. Doc 28 at 2-3. Cabrera-Asencio was
disciplined again even though another inmate told the
disciplinary hearing officer that it was he, rather than
Cabrera-Asencio, who made the offensive remark. Doc. 34-1 at
4, 7, 11. After this, Cabrera-Asencio avers that prison
officials harassed him in a number of ways, including strip
searches, pat downs, drug testing, and requesting his
mother's green card during visits, which she does not
have because she is a legal citizen. Doc. 28 at 3.
relevant time, inmates on Unit D of the Jameson Annex at SDSP
were eligible for no more than sixty jobs and there were
usually about sixty additional inmates on the waitlist for
employment. Doc. 33 ¶¶ 2-6. There is a low turnover rate
for jobs in Unit D. Id. ¶ 7. Inmates on the
waitlist are listed in order of their last disciplinary
report, and if inmates are sent to the SHU, they are removed
from the list until they return to their unit Id.
¶ 8 Throughout the relevant period, Cabrera-Asencio was
in and out of prison jobs. See Doc. 33-1; Doc. 33-2; Doc.
33-3. Cabrera-Asencio claims that he was paid intermittently.
Doc. 37 at 3. He also avers that his coordinator told him he
could not work because he was an undocumented immigrant. Doc
28 at 4. He asserts that he was not paid and eventually lost
his job because of a misapplication of a prison policy
denying paid jobs to prisoners who were undocumented
immigrants. Id. at 5.
aver that Cabrera-Asencio was removed from the waitlist when
he was sent to the SHU. Doc. 33 ¶ 9. The Defendants say
that Cabrera-Asencio was placed back into his SDSP kitchen
job by accident, but was removed before he working there
because he did not have the necessary training. Id.
¶ 12. Defendants also aver they later discovered that
Cabrera- Asencio did not have a valid Social Security number
("SSN"), a requirement to work at SDSP.
Id. ¶ 13 Cabrera-Asencio avers that he never
had a SSN and that SDSP staff was aware of this fact the
entire time he was incarcerated at SDSP. Doc. 37 ¶ 15.
1, 2016, Cabrera-Asencio filed this complaint. Doc. 1 He
alleged that defendants violated his rights under the Equal
Protection Clause, the First Amendment, and the Eighth
Amendment Id. at 5-7. This Court screened
Cabrera-Asencio's complaint under 28 U S.C. 1915A,
dismissed Cabrera-Asencio's claim under the Eighth
Amendment, and directed service of the remainder of the
complaint Doc. 9.
January 11, 2017, Cabrera-Asencio moved for summary judgment,
Doc. 24, and filed two affidavits supporting his motion. Doc.
26, 28. On January 20, 2017, defendants moved for summary
judgment Doc. 30. In support of their motion, defendants
filed the affidavits of Elizabeth Vitetta, a correctional
officer at SDSP, Doc. 33, and Jennifer Dreiske, the deputy
warden at SDSP. Doc. 34. Cabrera-Asencio also moves this
Court to appoint him counsel. Doc 27.