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Blazer v. Gall

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

September 20, 2017

ROBERT A BLAZER, Plaintiff,
v.
KEITH GALL, Corson County Sheriff; JOSH BOLL, Walworth County Sheriff; ALAN D. DALE, Deputy at Corson County, SD; JUSTIN TVEDT, Deputy at Corson County, SD; MIKE VARILEK, Deputy at Corson County, SD; KILEY FRANKLIN, Jailer/Guard at Walworth County Jail; KIMBERLY LONG KNIFE, Jailer/Guard at Walworth County Jail; JUSTIN UNKNOWN, Jailer/Guard at Walworth County Jail; MARRISSA UNKNOWN, Jailer/Guard at Walworth County Jail; HEATHER KROONJE, Jailer/Guard at Walworth County Jail; PATTY UNKNOWN, Jailer/Guard at Walworth County Jail; JERAMY JOHNSON, Jailer/Guard at Walworth County Jail; LANCE UNKNOWN, Jailer/Guard at Walworth County Jail; ERIC BOUGE, Corson County S.D. States Attorney; DEPUTY BENTZ, Deputy at Walworth County Jail; RON UNKNOWN, Jailer/Guard at Walworth County Jail; GLENN UNKNOWN, Jailer/Guard at Walworth County Jail; TAMMY UNKNOWN, Jailer/Guard at Walworth County Jail; and CINDY UNKNOWN, Jailer/Guard at Walworth County Jail; Defendants.

          ORDER

          CHARLES B. KORNMANN UNITED STATES DISTRICT JUDGE.

         Plaintiff instituted this action pursuant to 42 U.S.C. § 1983 alleging deprivation of constitutional rights while he was a pretrial detainee. Plaintiff was allowed to proceed without the prepayment of fees and the U.S. Marshals Service was ordered to effect service.

         Many of the defendants alleged to have been employed by Walworth County are named by first name only. I indicated in my previous order directing service that the surnames of those defendants should be supplied to the plaintiff. Nonetheless, when counsel entered their appearances on behalf of the Walworth County defendants, they specifically entered an appearance for those defendants by first name only. Likewise, their motion to dismiss and brief fail to set forth the surnames of those defendants.

         The U.S. Marshals Service filed returns of service for all defendants. Defendants Justin Unknown, Patty Unknown, Lance Unknown, Glenn Unknown, and Cindy Unknown were all "personally" served, although the return of service shows only that some persons named Justin, Patty, Lance, Glenn, and Cindy were served. The U.S. Marshals Service did not indicate at all who exactly was served.

         Defendants Jeremy Johnson, Marissa Unknown, Heather Kroonje, Ron Unknown, and Tammy Unknown were not served. The U.S. Marshals Service indicated on the return of service that those persons were no longer employed by Walworth County.

         All defendants were named in their individual and official capacities. The Court deleted reference to capacity in the caption for brevity.

         The Corson County and Walworth County defendants have moved to dismiss the official capacity claims for failure to state a claim that any official policy or custom was the moving force behind any claimed constitutional violations. The Corson County defendants further contend that dismissal is appropriate because plaintiffs claims do not support a finding of deliberate indifference, that plaintiff has failed to allege any claim against defendants Dale, Tvedt, Varilek, or Bogue, and that defendant Bogue is entitled to prosecutorial immunity if it is contended that any claims arise out of his prosecution of the plaintiff.

         Plaintiff has moved to strike what he claims are motions for summary judgment, contending that defendants have failed to properly support such a motion. I reject that contention. Defendants filed motions to dismiss and briefs in support thereof as required by the Federal Rules of Civil Procedure and the Local Rules for the District of South Dakota.

         Plaintiff contends that defendants have failed to timely file an answer and that defendants have waived certain defenses. No answer is due at this time since the Court has not yet ruled on the pre-answer motions to dismiss.

         Plaintiff contends counsel of record for the defendants have acted in violation of the law and in violation of the code of ethics in filing and pursuing the motions to dismiss. I reject outright any such contention. Counsel for defendants have properly raised certain issues by pre-answer motion to dismiss as required by Fed.R.Civ.P. 12(b).

         Plaintiff has filed motions for the appointment of counsel.

         DECISION

         Pretrial detainee's conditions of confinement claims arise out of the Fourteenth Amendment's Due Process Clause. Walton v. Dawson, 752 F.3d 1109, 1117 (8th Cir. 2014) ("Although 'the Eighth Amendment has no application' until there has been a 'formal adjudication of guilt, ' the Fourteenth Amendment gives state pretrial detainees-just as the Fifth Amendment gives federal pretrial detainees-rights which are 'at least as great as the Eighth Amendment protections available to a convicted prisoner.'") (City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983)). "The Constitution affords greater protection to quoting a pretrial detainee compared to a convicted inmate in the sense that '[d]ue process requires that a pretrial detainee not be punished.'" Walton v. Dawson, 752 F.3d at 1117 (Quotins Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)).

         Under the Due Process Clause, a pretrial detainee may be subject to conditions and restrictions only to the extent such conditions do not amount to punishment. Bell v. Wolfish, 441 U.S. at 536, 99 S.Ct. at 1872-73. Under the Due Process Clause, prior to an adjudication of guilty a pretrial detainee cannot be punished "at all." ...


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