Spotted Elk v. Yost

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE.

         Plaintiff, 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.

         FACTUAL BACKGROUND

         The 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 motion").

         "Although 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).

         Yost filed a Statement of Undisputed Facts (Docket 20) along with supporting affidavits and exhibits. The undisputed facts are recited below:

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. Id.

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. § 1915A.

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.^[1]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 ...