United States District Court, D. South Dakota, Southern Division
TERRY L. THOMPSON, Plaintiff,
JOSH KLIMEK, Unit Manager; DIANE ROMKEMA, Manager; JERRAME LARSEN, D-H-O Hearing Officer; and LEE KAUFENBERG, Correctional Officer, Defendants.
ORDER ADOPTING THE REPORT AND RECOMMENDATION,
GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF'S VARIOUS OTHER MOTIONS
E. SCHREIER, UNITED STATES DISTRICT JUDGE
Terry L. Thompson, filed this lawsuit under 42 U.S.C. §
1983. The case was referred to Magistrate Judge Veronica
Duffy under 28 U.S.C. § 636(b)(1)(B) for a report and
recommendation on several motions, including defendants'
motion for summary judgment (Docket 52), Thompson's
motion for relief from order (Docket 68), Thompson's
motion supporting factual positions (Docket 77), and
Thompson's motions for preliminary injunction (Docket 79,
August 18, 2017, the magistrate judge submitted her report
and recommended that defendants' motion for summary
judgment be granted and Thompson's pending motions be
denied as moot. Docket 95. Thompson filed his objection
(Docket 97) to the report and recommendation (Docket 95) on
September 25, 2017. Thompson also filed a motion requesting
updated documents. (Docket 98). For the reasons below,
Magistrate Judge Duffy's report and recommendation is
adopted as supplemented by this order and Thompson's
remaining motions are denied as moot.
is currently an inmate at the South Dakota State Penitentiary
in Sioux Falls, South Dakota. A factual background was
compiled by Magistrate Judge Duffy in her report and
recommendation. Docket 95. The court will utilize those facts
as relevant in the discussion section below.
addition to the facts in the report and recommendation,
Thompson alleges that during the months of December 2015 and
January 2016, D-H-O Officer Jerrame Larsen was “doing
coordinated drops” of synthetic marijuana in the Mike
Durfee State Prison. Docket 97. Thompson alleges that he went
to case manager Diane Romkema to tell her about the drugs
going around the prison and offer his assistance.
Id. Thompson alleges that he offered to ask
individuals using marijuana where they were getting drugs.
Id. Thompson alleges that he, along with other
Native American inmates, asked individuals who they got their
drugs from and D-H-O Jerrame Larsen's name came up as the
person doing “coordinated drops.” Id. As
a result, Thompson alleges that he got in trouble and was
placed in the SHU in retaliation. Id. Defendant
Jerrame Larsen presided over the disciplinary hearing that
gave Thompson sixty days in the SHU. Docket 55 at pp. 4-5.
also objects to the facts in the report and recommendation
because it excluded the reason for several of his actions.
First, Thompson claims he approached Registered Nurse Rachel
Pravecek, because he claims he was in fear for his life due
to his heart condition. Thompson claims that he only smiled
and tried to be nice to R.N. Pravecek. Second, Thompson
claims he asked for Correctional Officer Beach because she
treats everyone as equal and has respect for inmates.
Furthermore, Thompson claims that during this time he was
still under the influence of anesthesia and morphine
following his pacemaker surgery.
court's review of a magistrate judge's report and
recommendation is governed by 28 U.S.C. § 636 and Rule
72 of the Federal Rules of Civil Procedure. The court reviews
de novo any objections to the magistrate judge's
recommendations with respect to dispositive matters that are
timely made and specific. 28 U.S.C. § 636(b)(1)(B);
Fed.R.Civ.P. 72(b). In conducting its de novo review, this
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);
United States v. Craft, 30 F.3d 1044, 1045 (8th Cir.
judgment is appropriate 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). The moving party can meet its burden by
presenting evidence that there is no dispute of material fact
or that the nonmoving party has not presented evidence to
support an element of its case on which it bears the ultimate
burden of proof. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). To avoid summary judgment, “[t]he
nonmoving party may not ‘rest on mere allegations or
denials, but must demonstrate on the record the existence of
specific facts which create a genuine issue for trial.'
” Mosley v. City of Northwoods, 415 F.3d 908,
910 (8th Cir. 2005) (quoting Krenik v. Cty. of Le
Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). Summary
judgment is precluded if there is a genuine dispute of fact
that could affect the outcome of the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When
considering a summary judgment motion, the court views the
facts and the inferences drawn from such facts “in the
light most favorable to the party opposing the motion.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
who proceed pro se are entitled to the benefit of liberal
construction at the pleading stage. Quam v. Minnehaha
Cty. Jail, 821 F.2d 522, 522 (8th Cir. 1987).
Nonetheless, the summary judgment standard set forth in Rule
56 of the Federal Rules of Civil Procedure remains applicable
to prisoners proceeding pro se. Id. The district
court is not required 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).
Courts must remain sensitive, however, “to the special
problems faced by prisoners attempting to proceed pro se in
vindicating their constitutional rights, and [the Eighth
Circuit does] not approve summary dismissal of such pro se
claims without regard for these special problems.”
Nickens v. White, 622 F.2d 967, 971 (8th Cir. 1980).
“[W]hen dealing with summary judgment procedures
technical rigor is inappropriate where . . . uninformed
prisoners are involved.” Ross v. Franzen, 777
F.2d 1216, 1219 (7th Cir. 1985).
raises thirty-seven objections to Magistrate Judge
Duffy's Report and Recommendation. Docket 97. Many of
Thompson's objections raise similar facts and legal
claims. Thompson's relevant objections will be addressed
when the court analyzes the applicable legal claims.
raises new claims in his objections. See Docket 97
at pp. 21-23, 27. This court denied Thompson's three
motions to amend (Dockets 20, 21, and 22) after defendants
filed their answer (Docket 14) and after Thompson had
previously amended his complaint (Docket 3). Docket 37. This
court did not grant Thompson leave to amend his complaint. If
Thompson wishes to litigate these claims, he needs to file a
contend that they are entitled to summary judgment on grounds
of qualified immunity. Docket 53 at p. 3. Section 1983
provides a cause of action against any “person who,
under color of any statute, ordinance, regulation, custom, or
usage, of any State” causes the deprivation of a right
protected by federal law or the United States Constitution.
42 U.S.C. § 1983.
doctrine of qualified immunity, however, generally shields
“ ‘[g]overnment officials performing
discretionary functions . . . 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.' ” Smith v.
City of Minneapolis, 754 F.3d 541, 545 (8th Cir. 2014)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). Qualified immunity protects ...