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Hawk-Gallardo v. Wendling

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

July 18, 2018

FRANK THUNDER HAWK-GALLARDO, Plaintiff,
v.
SERGEANT JEREMY WENDLING, Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Plaintiff, 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.

         FACTS[1]

         On 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.

         When 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 ¶¶ 12-13.

         The 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.

         Both 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.

         Once 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.

         The following day, both Thunder Hawk-Gallardo and Red Feather were transported back to the Pennington County Jail. Docket 51 ¶ 13.

         LEGAL STANDARD

         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. 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. 1994).

         Under 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).

         “A 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.

         The 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).

         DISCUSSION

         Wendling 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 relief.

         I. Objections to the Report and Recommendation

         Thunder 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.[2] 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.

         Second, 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, his ...


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