United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Frank Thunder Hawk-Gallardo, an inmate at the Pennington
County Jail, filed this lawsuit under 42 U.S.C. § 1983.
Docket 28. Defendant, Sergeant Jeremy Wendling, moves for
summary judgment based on qualified immunity. Docket 48. The
court granted Wendling's motion to stay discovery pending
the resolution of the qualified immunity issue. Docket 40.
The matter was referred for a report and recommendation to
Magistrate Judge Veronica L. Duffy under 28 U.S.C. §
636(b)(1)(B). Magistrate Judge Duffy recommends that
Wendling's motion for summary judgment be granted. Docket
66. Thunder Hawk-Gallardo objects to the report and
recommendation. Docket 67; Docket 68. For the following
reasons, the court grants Wendling's motion for summary
judgment. Additionally, the court dismisses Thunder
Hawk-Gallardo's cruel and unusual punishment claim.
September 20, 2016, Thunder Hawk-Gallardo, an inmate at the
Pennington County Jail in Rapid City, South Dakota, was
transported from Pennington County to the South Dakota State
Penitentiary (SDSP) in Sioux Falls, South Dakota. Docket 50
¶ 8. Thunder Hawk-Gallardo and Dre Red Feather were
among a group of inmates transported in a shuttle bus to
SDSP. Id. ¶ 9. For security purposes, Thunder
Hawk-Gallardo and Red Feather each wore hand and leg
restraints and a “belly chain” during transport.
Id. ¶ 10.
the group arrived at the SDSP, the inmates were taken to the
intake area of the Jameson Prison Annex (JPA) for processing.
Id. ¶ 10. Jeremy Wendling, ID Sergeant of the
JPA, began to remove the inmates' restraints. Docket 51
¶ 2, ¶ 7. Wendling was assisted by Sean Levy, a
Lieutenant at the SDSP. Id. Once Red Feather's
hand restraints had been removed, he swung at Thunder
Hawk-Gallardo and struck him twice in the face. Docket 50
¶ 11. In response, Thunder Hawk-Gallardo bent over and
pushed himself into Red Feather to stop his advances. Docket
50 ¶ 15. Red Feather fell backward and Thunder
Hawk-Gallardo stood up. Id. Once he stood up,
Thunder Hawk-Gallardo looked for the guards and saw Wendling
grabbing his radio to call a code. Id. ¶ 16;
Docket 51 ¶ 12. Red Feather was then restrained by
Wendling and Levy and placed in a holding cell. Docket 51
entire incident between Thunder Hawk-Gallardo and Red Feather
lasted “only a matter of seconds.” Docket 51
¶ 14. This assertion is supported by affidavits from
Wendling, Levy, and from John Benting, a Major at the JPA.
Id.; Docket 53 ¶ 13; Docket 52 ¶ 13.
Thunder Hawk-Gallardo's only description of the
incident's duration-“a bit of time”-is less
specific but not inconsistent with Wendling's averment.
Docket 28 at 8. The brief duration of the incident did not
provide an opportunity for prison staff, including Wendling,
to intervene any sooner than they did. Docket 50 ¶ 19.
parties were surprised by Red Feather's attack on Thunder
Hawk-Gallarado. Docket 50 ¶ 12; Docket 56 at 4. Thunder
Hawk-Gallardo stated he “[did] not know why inmate Red
Feather attacked me.” Docket 56 at 4. Wendling stated
that he “had no advance knowledge of any animosity or
ill will between the two inmates that would have given me
reason to believe, even in the slightest sense, that there
was any risk of harm to Thunder Hawk-Gallardo.” Docket
51 ¶ 10.
the officers intervened in the fight and Red Feather was
removed to a holding cell, Thunder Hawk-Gallardo was placed
in a different holding cell within the JPA. Docket 51 ¶
13. Thunder Hawk-Gallardo was secured to a cement block and
was denied use of a bathroom from 12:30 p.m. to 6:00 p.m.
Docket 28 at 5. During this time, Thunder Hawk-Gallardo asked
Wendling to call his lawyer and asked to use the bathroom.
Id. Wendling told Thunder Hawk-Gallardo to
“shut up” in response to his requests.
Id. After several hours in pain and still needing a
bathroom, Thunder Hawk-Gallardo urinated and defecated on
himself. Id. A prison official then took him to the
“hole” where Thunder Hawk-Gallardo alleges he
still had urine and feces on himself and was given a
“crazy dress” to wear. Id.
following day, both Thunder Hawk-Gallardo and Red Feather
were transported back to the Pennington County Jail. Docket
51 ¶ 13.
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. Under 28 U.S.C. § 636(b)(1),
the court reviews de novo any objections that are timely made
and specific. See Fed. R. Civ. P. 72(b) (“The
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.”). 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.
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate where the moving party “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 court must view the facts, and
inferences from those facts, in the light most favorable to
the nonmoving party. Scott v. Harris, 550 U.S. 372,
378 (2007) (citing United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962)); Helton v. Southland Racing
Corp., 600 F.3d 954, 957 (8th Cir. 2010) (per curiam).
The burden is placed on the moving party to establish both
the absence of any genuine issue of material fact and that it
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a). Once the movant has met its burden, the nonmoving
party may not simply rest on the allegations in the
pleadings, but must set forth specific facts, by affidavit or
other evidence, showing that a genuine issue of material fact
exists. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986); Fed.R.Civ.P. 56(e).
dispute is genuine when ‘the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.' ” Westchem Agric. Chems. Inc., v. Ford
Motor Co., 990 F.2d 426, 429 (8th Cir. 1993) (quoting
Anderson, 477 U.S. at 248). “A fact is
material when it might affect the outcome of the suit under
governing law.” Davis v. Or. Cty., 607 F.3d
543, 548 (8th Cir. 2010) (citing Anderson, 477 U.S.
at 248)). “Only disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that
are irrelevant or unnecessary will not be counted.”
Anderson, 477 U.S. at 248. “[T]he mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine
issue of material fact.” Id. at 247-48.
availability of summary judgment is essentially a question of
determining “whether there is the need for a
trial-whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either
party.” Id. at 250. Though pro se litigants
are entitled to a liberal construction of their pleadings,
Federal Rule of Civil Procedure 56 remains equally applicable
to them. Quam v. Minnehaha Cty. Jail, 821 F.2d 522,
522 (8th Cir. 1987).
moves for summary judgment based on qualified immunity.
Docket 48. Because the court has stayed discovery in this
matter until the issue of qualified immunity is determined,
the court must first determine whether Wendling is entitled
to qualified immunity. Before determining whether Wendling is
entitled to qualified immunity, however, the court will
address Thunder Hawk-Gallardo's objections to the report
and recommendation, his official capacity claim against
Wendling, and his request for declaratory and injunctive
Objections to the Report and Recommendation
Hawk-Gallardo timely submitted objections to the report and
recommendation. Docket 67; Docket 68. Thunder Hawk-Gallardo
identifies six specific objections, five of which are factual
objections. Docket 67 at 1-2. Thunder Hawk-Gallardo's
first objection is to the report and recommendation's
conclusion that Thunder Hawk-Gallardo did not file a response
to Wendling's statement of undisputed material facts.
Docket 67 at 1. The report and recommendation acknowledges
that Thunder Hawk-Gallardo submitted a motion in opposition
to defendant's motion for summary judgment (Docket 56).
Docket 66 at 4. But Thunder Hawk-Gallardo failed to respond
to defendant's statement of undisputed material facts in
compliance with Local Rule 56, a copy of which was provided
to him. Id. Because Thunder
Hawk-Gallardo's motion in opposition to Wendling's
summary judgment motion did not identify material facts that
were in genuine dispute, the report and recommendation was
accurate and the objection is overruled.
Thunder Hawk-Gallardo objects to the report and
recommendation's clarification that he was not a pretrial
detainee on September 20, 2016. Docket 67 at 1. The report
and recommendation correctly states that while Thunder
Hawk-Gallardo cites legal authority describing pretrial
detainees' rights, he does not specifically identify
himself as a pretrial detainee. Docket 66 at 6 n.3. To do so
would be incorrect. The report notes that Thunder
Hawk-Gallardo is a post-trial detainee. Id. Thus,