United States District Court, D. South Dakota, Southern Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE.
Andrew Gregory Spotted Elk, filed this pro se lawsuit
pursuant to 42 U.S.C. § 1983. Defendant Taylor Yost
filed a motion for summary judgment (Docket 14) arguing that
summary judgment should be granted based on qualified
immunity. Spotted Elk did not respond to the defendant's
motion for summary judgment. Having considered the written
record in this case and for the reasons set forth below, the
defendant's motion for summary judgment is granted based
upon qualified immunity.
local rules for this district require that the moving party
on a motion for summary judgment submit a, statement of the
material facts as to which it contends there is no genuine
issue to be tried. D.S.D. CIV. LR 56.1(A). The opposing party
is required to respond to each numbered paragraph in the
moving party's statement of material facts, and to
identify any material facts as to which it contends there
exists a genuine material issue to be tried. D.S.D. CIV. LR
56.1(B). All material facts set forth in the moving
party's statement of material facts are deemed admitted
if not controverted by the statement required to be served by
the party opposing summary judgment. D.S.D. CIV. LR 56.1(D);
see also On Target Sporting Goods, Inc. v. Attorney
General of the United States, 472 F.3d 572, 574
"(8th Cir. 2007); see also Northwest Bank &
Trust Co. v. First Illinois Nat'l Bank, 354 F.3d
721, 724-25 (8th Cir. 2003) (holding it was not an abuse of
discretion to deem that plaintiff had admitted all of
defendants statements of material facts as a sanction for
noncompliance with local summary judgment rules). Such rules
are properly intended to prevent a district court from
engaging in the proverbial search for a needle in the
haystack." Libel v. Adventure Lands of America,
Inc., 482 F.3d 1028, 1032 (8th Cir, 2007) (discussing a
similar Iowa Local Rule); see also Huckins v. Hollings
Worth, 138 Fed.Appx. 860, 862 (8th Cir. 2005) (affirming
district court's application of D.S.D. CIV. LR 56.
l.."even though those rules prevented it from
considering some facts improperly alleged by [Plaintiffs]
that might have been relevant to the summary judgment
pro se pleadings are to be construed liberally, pro se
litigants are not excused from failing to comply with
substantive and procedural law." Burgs v.
Sissel, 745 F.2d 526, 528 (8th Cir. 1984) (citing
Faretta v. California, 422 U.S. 806, 834-35 n. 46
(1975)). Additionally, a district court has no obligation to
"plumb the record in order to find a genuine issue of
material fact." Barge v. Anheuser-Busch, Inc.,
87 F.3d 256, 260 (8th.Cir, 1996). Nor is the court
"required to speculate on which portion of the record
the nonmoving party relies, nor is it obligated to wade .
through and search the entire, record for some specific facts
that might support the nonmoving party's claim." M,
Summary judgment could be granted without further analysis,
because a party opposing summary judgment "may not rest
upon the mere allegations or denials of his pleading, but. .
. must set forth specific facts showing that there is a
genuine issue for trial." Fed.R.Civ.P. 56(e).
filed a Statement of Undisputed Facts (Docket 20) along with
supporting affidavits and exhibits. The undisputed facts are
1. Plaintiff, Andrew Gregory Spotted Elk, is an inmate
currently incarcerated, at the South Dakota State
Penitentiary (SDSP) in Sioux Falls, . South Dakota. Docket 1
at 1; Docket 5- at 21. Spotted Elk, on or about July 25,
2014, pleadguilty to Aggravated Assault in violation of SDCL
22-18-1(2), Spotted Elk v. Adams, 2018 WL 1462229 at
*2 (D.S.D.) He was thereafter sentenced, -on or about
December 10, 2014, to serve fifteen (15) years in the SDSP.
2. Spotted Elk initiated the present lawsuit on or about July
26, 2017. Docket 1. As noted by the Court, in its Order dated
August 30, 2017, Spotted Elk "raises claims of excessive
force by an officer and hate crime." Docket 5 at
22;:Docket 1 at 4-5,
3 The Court, as indicated in the above Order, undertook to
screen Spotted Elk's Complaint pursuant to 28 U.S.C.
§ 1915A. Docket 5 at 21. As for Spotted Elk's claim
of analleged "hate crime," the Court found that he
"has not identified a legal basis for a
hate;crime cause of action other than the Eighth
Amendment." Docket 5 at 25.
4 The Court, citing to "Frison v. Zebro, 339
F.3d 994, 999 (8th Cir. 2003), stated that "it is well
settled that criminal statutes will rarely survive §
1983 analysis." Docket 5 at 25. Spotted Elk's claim
for an alleged hate crime was therefore dismissed pursuant to
28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(1) for
failure to state a claim on which relief may be granted.
Id. at 26.
5. It was said, however, that "Spotted Elk has pleaded
sufficient facts to show that Taylor Yost may have applied
force that was maliciously meant to cause harm."
Id. at 25. Spotted Elk's excessive force claim
was thus found to survive screening under 28 U.S.C. §
6. Defendant Yost's Statement of Undisputed Material
Facts will therefore be limited or confined to the
allegations by Spotted Elk that Yost "applied force that
was maliciously meant to cause harm." Docket 5 at 25.
7. There has been no showing, however, by Spotted Elk that
Defendant Yost, or any of the other Officers for that matter,
in responding to the incident taking place at the South
Dakota State Penitentiary (SDSP) on August 6, 2016, resorted
to excessive physical force in violation of the 8th
Amendment. Docket 17 ¶ 5; Docket 18 ¶ 6; Docket 19
¶ 5; Exhibits 1-9.
8. The record will reflect that Spotted Elk's "own
conduct made it necessary for prison officials to forcefully
restrain, him." Docket 17 ¶ 6; Docket 18 ¶ 12;
Docket 19 ¶-11; Exhibits 1-5. Spotted Elk, rather than
simply comply with the directives that were given, elected to
actively resist the Officers' efforts to subdue him once
they entered his holding cell.
9. The record reflects that, at approximately 1:00 p.m. on
August 6, 2016, Spotted Elk was observed having "kicked
the holding cell door." Docket 17"¶ 9; Docket
18 ¶ 8; Exhibit 1. He was also shouting various
obscenities. Docket 17 ¶ 9; Docket 18 ¶ 8.
10. The record reflects that. Spotted Elk had been placed in
a holding cell after he was alleged, in a Disciplinary Report
dated August 6, 2016, to have committed Prohibited Act
M-5.Exhibit 2. Said rule prohibits an inmate
from engaging in "Unsolicited contact with, or in
reference to, any non-inmate notes, letters, messages,
suggestive remarks ...