United States District Court, D. South Dakota, Southern Division
ORDER GRANTING RENEWED MOTION FOR SUMMARY
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Derek Vice, filed an amended complaint alleging that
defendants violated his rights under the Eighth Amendment.
Dockets 1, 13. Defendants moved for summary judgment and
claimed qualified immunity. Docket 57. Vice opposed the
motion. Docket 67. The court granted defendants' motion
in part and denied it in part. Docket 81. Defendants renew
their motion for summary judgment. Docket 85. For the
following reasons, the court grants defendants' motion.
undisputed facts are as follows:
Derek Vice, is a current inmate at the South Dakota State
Penitentiary (SDSP) in Sioux Falls, South Dakota. Docket 91
¶ 1. Vice states he has difficulty walking due to an
alleged back injury. Dockets 10, 67. Vice is able to walk and
does not have a medical condition that would render him
paralyzed or unable to walk. Docket 91 ¶¶ 16-18.
Vice, however, does use a wheelchair to be transported on
some occasions. Docket 67 at 2. Defendant Tiffaney Stoyanov,
a Health Services Officer at the SDSP, was aware that Vice
feigned his symptoms and - despite Vice's assertions that
he was unable to stand or walk due to an injury - was
observed walking on several occasions. Docket 87 ¶ 4.
Additionally, there were occasions where Vice needed to be
restrained and the staff would make an effort to restrain him
from a kneeling or sitting position. Id. ¶ 5.
South Dakota Department of Corrections (SDDOC) has a policy
that requires the reporting of planned or unplanned use of
force by DOC staff. Docket 91 ¶ 21. The policy requires
the officer-in-charge to complete a “Use of Force
Summary” following any encounter that involved force.
Id. Once completed, the summary and checklist become
part of the reporting documents and is forwarded to the
Senior Security Officer. Id. The Senior Security
Office must ensure that the summary and checklist are
electronically filed in the Use of Force Folder. Id.
¶ 22. The checklist, summary, and any accompanying
incident or informational reports are generated for each
inmate who has had a use of force applied to him.
Id. Next, the policy requires the reports be scanned
into the inmate's Offense in Custody record located in
the Comprehensive Offender Management System (COMS).
Id. ¶ 23. Clifton Fantroy, Associate Warden of
Security, conducted a search of the COMS to look for any
documents or reports pertaining to Vice that involved
defendants Charles Herrmann, a Lieutenant at SDSP, or
Stoyanov's application of force. Id. ¶ 24.
Fantroy did not find or locate any reports where Herrmann or
Stoyanov were said to have applied force to Vice.
Id. ¶ 25.
Stoyanov has no recollection of ever forcing Vice to stand.
Id. ¶ 27; Docket 87 ¶ 6. Stoyanov does not
recall ever using capstun, pepper spray, or physical force in
an effort to force Vice to stand while injured. Docket 91
¶ 28. Stoyanov stated that if such an incident would
have occurred, she would have remembered it and completed an
incident report as required by the SDDOC's policy.
Id.; Docket 87 ¶¶ 7-8.
October 19, 2016, Vice was sprayed with “OC
spray” twice. Docket 91 ¶ 7. He was sprayed with
OC spray earlier in the day for failing to follow directions.
Id. He was sprayed again, later in the evening, by
defendant Robert Kirvin. Id. Vice was sprayed that
evening because he refused to follow directives to allow
staff to put restraints on him. Id. ¶ 8. Vice
claimed he could not walk, but Kirvin did not believe this to
be an issue because a wheelchair was present for Vice.
Id. ¶ 9. Kirvin give Vice four directives and
the Officer-in-Charge (OIC), Derek Palmer, gave Vice four
additional directives to turn his back while sitting to
“cuff up.” Id. ¶ 10. But Vice
continued to argue with staff. Id. Kirvin gave two
additional directives to “turn around and cuff
up” and Vice continued to not comply. Id.
¶ 11. At this point, the OIC gave Kirvin permission to
deploy the capstun spray. Id. After the incident,
Kirvin completed a disciplinary report on October 19, 2016.
Id. ¶ 10; Docket 86-2. Additionally, Palmer
completed an Unplanned Use of Force Checklist on October 19,
2016. Docket 86-1.
that evening, Vice was seen by Health Services and complained
of a small abrasion to his left big toe. Docket 91 ¶ 12.
Health Services was not able to treat the abrasion because
Vice was uncooperative. Id. ¶ 13. Vice's
vital signs were stable, he was alert and oriented, and was
cleared by Health Services. Id. ¶¶ 14-15.
filings must be liberally construed. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citation omitted). Even
with this construction, “a pro se [filing] must contain
specific facts supporting its conclusions.” Martin
v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985);
Ellis v. City of Minneapolis, 518 Fed.Appx. 502, 504
(8th Cir. 2013). Summary judgment on all or part of a claim
is appropriate when 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); see also In re Craig, 144 F.3d 593, 595 (8th
Cir. 1998). 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).
the moving party has met this burden, “[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)). “Further, ‘the
mere existence of some alleged factual dispute between the
parties is not sufficient by itself to deny summary judgment.
. . . Instead, the dispute must be outcome determinative
under prevailing law.' ” Id. at 910-11
(quoting Get Away Club, Inc. v. Coleman, 969 F.2d
664, 666 (8th Cir. 1992)). The facts, and inferences drawn
from those facts, are “viewed in the light most
favorable to the party opposing the motion” for summary
judgment. 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 (1962)).
alleges that under 42 U.S.C. § 1983 the defendants
violated his Eighth Amendment rights. Dockets 1, 10.
Defendants allege that they are entitled to qualified
immunity and there are no material facts in dispute ...