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Vice v. Kirvin

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

March 26, 2019

DEREK VICE, Plaintiff,
v.
C/O ROBERT KIRVIN, SGT. CHARLES HERRMANN, CORRECTIONAL OFFICER TIFFANEY STOYANOV, Defendants.

          ORDER GRANTING RENEWED MOTION FOR SUMMARY JUDGMENT

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Plaintiff, 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.

         FACTUAL BACKGROUND

         The undisputed facts are as follows[1]:

         Plaintiff, 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.

         The 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.

         Additionally, 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.

         On 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.

         Later 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.

         LEGAL STANDARD

         Pro se 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).

         Once 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)).

         DISCUSSION

         Vice 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 ...


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