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Cabrera-Asencio v. Young

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

May 10, 2017

DARIN YOUNG Warden, DENNY KAEMINGK Secretary of Corrections, ELIZABETH VITETTA Coordinator D-Unit, AL ALLCOCK Associate Warden, JENIFER DRIESKE Dept Warden, Defendants.



         Plaintiff 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.


         A. Punishment

         Cabrera-Asencio 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.

         Cabrera-Asencio 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.

         On 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.

         B. Employment

         At the 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.[1] 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.

         Defendants 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.


         On July 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.

         On 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.

         III. ...

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