Hanks v. Hills et al

Filing 257

ORDER adopting Report and Recommendation [ECF No. 251 ]. (1) Plaintiff's objections to the Report and Recommendation [ECF. No. 253 ] are OVERRULED. (2) Defendants' motion for summary judgment [ECF No. 157 ] is GRANTED. (3) This action is DISMISSED. (Written Opinion) Signed by Judge Joan N. Ericksen on 8/16/2018. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Clayton James Hanks,
Plaintiff,
Case No. 15-cv-4275 (JNE/DTS)
v.
ORDER
Jason Hills, Nicholas Desotelle, Dustin
Engh, Michael Marcott, Lawrence
Amsden, Chris Schultz, Luke Richling,
Trista Shields, Johannes Olivier, and
Melissa Cook n/k/a Melissa Freshwater,
each in their individual capacities; and
Minnesota Department of Corrections,
Defendants.

This matter is currently before the Court on a Report and Recommendation
(“R&R”) issued by United States Magistrate Judge David T. Schultz on May 1, 2018. The
magistrate judge recommended granting Defendants’ motion for summary judgment.
Plaintiff Clayton James Hanks filed timely objections to the R&R. Pursuant to D. Minn.
L.R. 72.2(b), the Court has conducted a de novo review of the record. Based on that review,
the Court accepts the recommended disposition.
OBJECTIONS
Hanks makes four objections to the magistrate judge’s findings and
recommendations.1 First, he maintains that the magistrate judge erred in concluding that

The factual background and procedural history set forth in the Report and
Recommendation are incorporated by reference here.
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Defendant Jason Hills was entitled to qualified immunity. Pl.’s Obj. at 8-10. Specifically,
Hanks contends that the magistrate should have found, based on the evidence in the record,
that Hills ordered Hanks to be placed on a restraint board as a form of punishment in
violation of the Eighth Amendment. Id. at 9. But as the Eighth Circuit made clear last year
in a similar case involving the use of a restraint board on a self-injurious inmate,
“[P]unishing an inmate to preserve internal order and discipline and to maintain
institutional security does not violate the Eighth Amendment, unless the punishment or
force used is repugnant to the conscience of mankind. . . .” Jackson v. Gutzmer, 866 F.3d
969, 978 (8th Cir. 2017) (internal quotations omitted). The court further held that an officer
in Hills’ position is “entitled to qualified immunity if the totality of the circumstances
justified use of the restraint board even if [the officer] erred in believing [the inmate] was
self-injurious when placed on the board.” Id. at 976. Here, the magistrate judge correctly
applied Jackson in concluding that Hills’ decision was not “repugnant to the conscience of
mankind,” and that the totality of the circumstances justified the use of the restraint board.
Therefore, Hills is entitled to qualified immunity.
Hanks’ second objection is that the magistrate judge erred in recommending
dismissal of the claims against Defendants Nicholas Desotelle and Lawrence Amsden. Pl.’s
Obj. at 10. In the R&R, the magistrate judge concluded that those claims should be
dismissed because Hanks failed to plead that either Desotelle or Amsden personally
violated his rights. See Jackson v. Nixon, 747 F.3d 537, 543 (8th Cir. 2014) (“To state a
claim under § 1983, the plaintiff must plead that a government official has personally
violated the plaintiff's constitutional rights.”). In his objection, Hanks alleges that Desotelle
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and Anderson are seen on the videotaped recording of Hanks’ placement on the restraint
board “cranking and yanking on the straps.” Pl.’s Obj. at 10. Hanks argues – or appears to
argue – that this video evidence is enough to satisfy the § 1983 pleading requirement.
This objection is overruled for two reasons. First, the allegation about Desotelle and
Amsden was not properly raised before the magistrate judge. “[T]he basic purpose of
referring cases to a magistrate for recommended disposition would be contravened if
parties were allowed to present only selected issues to the magistrate, reserving their full
panoply of contentions for the trial court.” Reciprocal Exch. v. Noland, 542 F.2d 462, 464
(8th Cir. 1976); see also Roberts v. Apfel, 222 F.3d 466, 470 (8th Cir. 2000). Second, even
if Hanks had properly introduced his claims against Desotelle and Amsden, those two
Defendants would still be entitled to qualified immunity for the same reason as Hills: even
viewed in the light most favorable to Hanks, the facts alleged do not support a claim for
cruel and unusual punishment. Among other considerations, the video shows Nurse Olivier
checking each strap for tightness, and Hanks does not appear to be in distress as a result of
the straps. See ECF No. 186.
Hanks’ third objection involves his claim of deliberate indifference. Hanks contends
that the magistrate judge erred in concluding that he needed to provide verifying medical
evidence showing that he suffered detrimental effects from the alleged lack of medical
care. Pl.’s Obj. at 11-12. The magistrate judge is correct. Because Hanks is alleging that
the individual Defendants violated his Eighth Amendment rights by delaying his medical
care – i.e., by not having the on-call doctor attend to his wound until the next day – he must

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provide evidence to show the detrimental effect of this alleged delay. As the Eighth Circuit
has explained:
When an inmate alleges that a delay in medical treatment constituted a
constitutional deprivation, the objective seriousness of the deprivation
should also be measured by reference to the effect of delay in treatment. An
inmate's failure to place verifying medical evidence in the record to establish
the detrimental effect of delay in medical treatment precludes a claim of
deliberate indifference to medical needs.
Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997) (internal quotation and citation
omitted). Here, Hanks has not provided evidence of a detrimental effect caused by any
Defendant’s decision to bring in the on-call doctor the day after Hanks injured himself.
Accordingly, Hanks’ objection to the magistrate judge’s conclusion regarding deliberate
indifference is overruled.
Lastly, Hanks objects that the Report and Recommendation relies on inadmissible
hearsay evidence and inadmissible lay and expert opinions. Pl.’s Obj. at 12-13. Hanks cites
to a number of paragraphs in several affidavits in the record to support his hearsay
objection. He does not cite any specific instances of improperly considered lay or expert
testimony, referring instead to his summary judgment response brief in general.
Hanks’ objection concerning lay or expert testimony is wholly unsupported and
therefore overruled. As to the hearsay objection, it is of course well settled that “[w]hen an
affidavit contains an out-of-court statement offered to prove the truth of the statement that
is inadmissible hearsay, the statement may not be used to support or defeat a motion for
summary judgment.” Brooks v. Tri-Sys., Inc., 425 F.3d 1109, 1111 (8th Cir. 2005). Here,
however, Hanks fails to establish how – or, for that matter, if – any of the cited statements
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were actually relied upon in the R&R. He lists a number of alleged hearsay statements in
his objections, but the Court is unable to sustain an objection based merely on a blanket
assertion that the magistrate judge “relied” on them. Pl.’s Obj. at 12. Moreover, even if
Hanks had properly explicated how the magistrate judge relied on the statements, the
objection would still be overruled because the statements all appear to fall under the
hearsay exceptions in Rule 803(4) (for statements made for medical diagnosis or treatment)
or Rule 803(6) (for records of regularly conducted activity) of the Federal Rules of
Evidence. Accordingly, Hanks’ objection as to inadmissible hearsay is also overruled.
CONCLUSION
Accordingly, based upon all of the files, records and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiff’s objections to the Report and Recommendation [ECF. No. 253] are
OVERRULED.
2. Defendants’ motion for summary judgment [ECF No. 157] is GRANTED.
3. This action is DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: August 16, 2018

s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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