United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER ON MOTION FOR SUMMARY
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
Cristian Cabrera-Asencio ("Cabrera-Asencio") filed
this lawsuit pursuant to 42U.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 moved for summary judgment,
which the Court granted in part and denied in part. Doc. 39.
The Court denied defendants' motion without prejudice to
refiling a renewed motion as to Cabrera-Asencio's claim
that they violated his rights under the Equal Protection
Clause by denying him employment. Id. Defendants
then filed a second motion for summary judgment (Doc. 43) and
Cabrera-Asencio responded (Doc. 48). Cabrera-Asencio also
filed a motion for reconsideration, entry of default,
discovery, and scheduling order (Doc. 40) and a motion for
court appointed counsel (Doc. 42). For the following reasons,
Cabrera-Asencio's motions are denied, and defendants'
second motion for summary judgment is granted.
heart of the sole remaining claim in this lawsuit is whether
the defendants violated Cabrera-Asencio's constitutional
rights when they denied him further employment at the South
Dakota State Penitentiary (SDSP). Cabrera-Asencio has held
paying jobs at the SDSP. Doc. 47 at 1. But on two separate
occasions, November 5, 2014 and January 1, 2015, he lost
those paying job when he was disciplined. Id. at
1-2. At the SDSP, jobs are rewards for good behavior and
major disciplinary actions move inmates to the bottom of the
job waitlist. Doc. 45 at 1.
Elizabeth Vitetta held the position of Correctional Officer
at the SDSP and was the Unit D Coordinator from December 8,
2015 to July 29, 2016. Id. As Unit D Coordinator,
Vitetta was involved in hiring inmates from the waitlist for
available jobs. Id. One of the possible jobs was
working in the kitchen for an entity called CBM. Id.
Normally, CBM would email when it needed inmates for a
certain shift. Id. at 2. Vitetta would then review
the waitlist of inmates to see who was eligible for a job.
Id. Vitetta had access to inmate files and records
regarding inmate work history. Id. at 1. Inmates
could be restricted from holding jobs because they are
federal inmates, have medical restrictions, or lack a valid
or verifiable SSN. Id.
March 2016, CBM attempted to hire Cabrera-Asencio directly.
Vitetta intervened. Doc. 47. Vitetta "informed CBM that
Cabrera-Ascencio 1) had not been cleared by the Unit
Coordinator for the position, 2) was at the bottom of the
jobs list because of major disciplinary action, 3) had not
been cleared through Health Services, 4) having checked his
Social Security number, it had not been verified and
therefore he was ineligible for that position, and 5) he was
not trained to work in the kitchen." Id.
claims that the SDSP has a policy that prohibits undocumented
inmates from working. Doc. 9 at 5. Defendants aver that the
South Dakota Department of Corrections (SDDOC) does not have
a policy prohibiting undocumented inmates from working at the
penitentiary. Doc. 47 ¶17. SDDOC does, however, have
Policy 1.1.A.7 that requires all inmates to have a verified
SSN prior to being paid wages. Id. ¶ 16. The
policy states that SDDOC is required to submit a report to
the IRS containing the names and SSNs of all inmates who earn
wages. Doc. 25-1 at 16.
claim that in 2016 Vitetta discovered that the SSN
Cabrera-Asencio provided SDDOC did not match what was on file
with the IRS. Doc. 45 at 2. Defendants maintain that
Cabrera-Asencio has not provided the SDDOC a valid SSN.
Cabrera-Asencio claims that he has never had a SSN and has
never provided defendants one. Doc 37 ¶ 15. It is
uncontested that Cabrera-Asencio does not have a SSN. Doc. 37
Summary Judgment Standard
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 this burden by
presenting evidence that there is no dispute of material fact
or by showing 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).
party opposing a properly supported motion for summary
judgment may not rest on mere allegations or denials, but
must set forth specific facts in the record showing that
there is a genuine issue for trial." Denn v. CSL
Plasma, Inc., 816 F.3d 1027, 1032 (8th Cir. 2016)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986)). For purposes of summary judgment, the
facts, and inferences drawn from those facts, are
"viewed 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) (quoting
United States v. Diebold, Inc., 369 U.S. 654, 655
sole remaining issue in this lawsuit is whether the
defendants violated Cabrera-Asencio's constitutional
rights under the Equal Protection Clause by denying him
employment. In its screening order, this Court stated that
the policy of not paying undocumented immigrant prisoners
will be upheld if defendants show a rational basis for the
policy. See Doc. 9 at 5. Defendants now argue that
they are entitled to summary judgment based on qualified
immunity, because there is a rational basis for the policy
requiring a valid SSN and that the policy was applied to
Cabrera-Asencio. Doc. 44 at 7.
maintains that he was not allowed to work because he is an
undocumented immigrant. Doc. 9 at 5.. This Court held in its
opinion and order on cross motions for summary judgment that
defendants provided a rational basis for this policy:
complying with federal law by reporting income and
withholdings for Social Security. Doc. 39 at 7. Defendants
need only show that this policy was applied to
Cabrera-Asencio. Id. at 8. Previously, the