Jackson et al v. Mike-Lopez et al

Filing 93

ORDER denying 75 Motion for Spoliation; denying 84 Motion for Sanctions(Written Opinion) Signed by Magistrate Judge Becky R. Thorson on 12/20/2018. (TMM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Ronnie Jackson; Joshua Jones;
Shane Kringen; Marvin Franco-Morales;
Mitchell Osterloh; and Jesse Plentyhorse,

Civ. No. 17-4278 (JRT/BRT)

Plaintiffs,
v.

REPORT AND
RECOMMENDATION
AND ORDER

Sharlene Mike-Lopez; Diane Medchill;
Kathy Reid; Bruce Reiser; David Reishus;
Michelle Smith; and Tom Roy, sued in their
Individual capacities,
Defendants.

Ronnie J. Jackson, OID #239471, Joshua Jones, OID #222266, Shane Kringen, OID #
178338, Marvin Franco-Morales, OID #250893, Jesse Plentyhorse, OID #235901, MCFOak Park Heights, 5329 Osgood Avenue North, Stillwater, MN 55082, and Mitchell
Osterloh, OID #214579, MCF-St. Cloud, 2305 Minnesota Blvd. SE, St. Cloud, MN,
56304, pro se Plaintiffs.
Lindsay LaVoie, Esq., Assistant Attorney General, counsel for Defendants.

BECKY R. THORSON, United States Magistrate Judge.
Pro se Plaintiffs Ronnie Jackson, Joshua Jones, Shane Kringen, Marvin FrancoMorales, Mitchell Osterloh, and Jesse Plentyhorse, inmates in the custody of the
Minnesota Department of Corrections, bring claims for violations of their constitutional
rights under 42 U.S.C. § 1983. (Doc. No. 1, Compl.) Plaintiffs allege claims for
unconstitutional conditions of confinement and deliberate indifference to their medical

needs in violation of the Eighth Amendment, denial of due process under the Fourteenth
Amendment, and deprivation of religious freedom in violation of the First Amendment.
(See id.)
Defendants move to dismiss. See Fed. R. Civ. P. 12(b)(6); (Doc. No. 61). Also
before the Court is a motion for spoliation and an emergency motion for fines and
sanctions filed by Plaintiff Jackson. (Doc. Nos. 75, 84.) This Court recommends that the
motion to dismiss be granted in part and denied in part. The Court will deny the other two
motions.
I.

Background
Plaintiffs, according to their Complaint,1 were incarcerated at MCF-OPH between

May 1, 2017 and July 31, 2017. (Compl. 1–2.) During that timeframe, Plaintiffs were
housed in MCF-OPH’s Administrative Control Unit (“ACU”) for violating DOC policies
and rules. (Id. at 1–2.) Plaintiffs allege that at the end of their segregation sentences,
Defendants voted to place them on Administrative Control Status (“ACS”) and required
them to participate in a mental health treatment program conducted by an unlicensed
DOC mental health staff member. (Id. at 6.)
Plaintiffs allege that they were in segregation for a minimum of eighty days. (Id.)
Plaintiffs further allege that while in segregation, they experienced the following
conditions that they consider dehumaninzing:
For purposes of this motion, the Court accepts Plaintiffs’ allegations as true. See
Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1074 (8th Cir. 2016). The Court also
considered declarations filed by Plaintiffs Jackson, Plentyhorse, Franco-Morales,
Osterloh, and Kringen in conjunction with the Complaint, and a series of exhibits. (See
Doc. Nos. 3–7.)
1

2

• Twenty-three hours a day in a very small cell (sometimes a complete twentyfour hours);
• Segregation cells with two solid steel doors;
• Only human contact was with DOC staff;
• Only allowed video visitations and not in-person visitations;
• Artificial lights;
• The location of the showers and toilets did not afford sufficient privacy;
• Other segregation offenders were loud due to mental illness;
• Feces and other bodily fluids on the walls and ceilings;
• Cells were generally unclean;
• Laundry returned unclean;
• Mattresses had stains they did not cause;
• Not allowed to attend preferred religious services.
(Id. at 6–8.)
Plaintiffs assert that Defendant Sharlene Mike-Lopez was informed about the
above-listed conditions. (Id. at 8.) Plaintiffs assert that their emotional injuries caused
them to experience disrupted sleep, difficulty eating, and difficulty concentrating. (Id. at
9.) Also, Plaintiffs could not freely practice their religion, and their mental health
symptoms worsened. (Id.)
Plaintiffs allege that when they served segregation time in the past, they were
returned to the general population when their time expired, but in May 2017, Defendants

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held ACS hearings to determine if Plaintiffs were going to be placed on ACS status. (Id.)
The ACS placement hearings were allegedly held outside Plaintiffs’ cells and some DOC
staff members were physically present and sat outside their cells, while others were just
on the phone. (Id.) Plaintiff Jones asserts he did not have an ACS hearing, contrary to
DOC policy. (Id.) Plaintiffs also assert that they should have received psychological
evaluations prior to their ACS hearings, but this did not occur, and they did not have
psychological evaluations after being placed on ACS status. (Id. at 9–10.) Plaintiffs
Jackson and Morales assert that Defendants ignored their psychologists’
recommendations to not place them on ACS status. (Id. at 10.) Plaintiff Jackson asserts
that he objected to being placed on ACS status due to a mental disorder, but he received
ACS placement regardless. (Id.) Plaintiffs Jackson and Morales also allege that because
they were placed on ACS status, their mental health symptoms were exacerbated. (Id.)
II.

Motion to Dismiss
Plaintiffs allege claims under the Eighth Amendment, the Due Process Clause of

the Fourteenth Amendment, and the First Amendment. (See Compl.) Plaintiffs request
injunctive relief, declaratory relief, compensatory damages, and punitive damages. (See
id. at 11–13.) Defendants argue Plaintiffs failed to state a claim on which relief may be
granted. (Doc. No. 62, Defs.’ Mem. 14–20.) Defendants also argue that Plaintiffs’ claims
for injunctive relief should be denied because they are brought against Defendants in
their individual capacities, and they are moot; Plaintiffs are not entitled to damages under
42 U.S.C. § 1997e(e) of the Prison Litigation Reform Act (“PLRA”); and that Plaintiffs
cannot recover punitive damages. (Id. at 5–6, 21–23.)
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A.

Standard of Review

Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of
the claim showing that the pleader is entitled to relief.” This standard “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 550 (2007)). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “The court accepts as true all factual allegations, but is ‘not
bound to accept as true a legal conclusion couched as a factual allegation.’” McAdams v.
McCord, 584 F.3d 1111, 1113 (8th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). “A
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of
a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
555). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully. Where a complaint
pleads facts that are ‘merely consistent with’ a defendant’s liability, ‘it stops short of the
line between possibility and plausibility’” and must be dismissed. Id. (quoting Twombly,
550 U.S. at 556–57).

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B.

Eighth Amendment
1.

Conditions of Confinement

The Eighth Amendment prohibits “cruel and unusual punishments,” and requires
that prison officials provide humane conditions of confinement. U.S. Const. amend. VIII;
Farmer v. Brennan, 511 U.S. 825, 832 (1994). “Prison officials must ensure that inmates
receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable
measures to guarantee the safety of the inmates.’” Farmer, 511 U.S. at 832 (quoting
Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)). However, the Constitution “does not
mandate comfortable prisons.” Rhodes v. Chapman, 452 U.S. 337, 349 (1981). A
prisoner asserting a conditions of confinement claim must identify the “deprivation of a
single, identifiable human need such as food, warmth, or exercise.” Wilson v. Seiter, 501
U.S. 294, 304 (1991). “[T]he risk that the prisoner complains of [must] be so grave that it
violates contemporary standards of decency to expose anyone unwillingly to such a risk.”
Helling v. McKinney, 509 U.S. 25, 36 (1993) (emphasis in original).
Thus, a conditions of confinement claim based on prison conditions requires a
showing of: (1) a deprivation of “minimal civilized measure of life’s necessities,” and
(2) deliberate indifference by prison officials to those basic needs. Rhodes, 452 U.S. at
347. “A prison official is deliberately indifferent if she ‘knows of and disregards’ . . . a
substantial risk to an inmate’s health or safety.” Nelson v. Corr. Med. Servs., 583 F.3d
522, 528–29 (8th Cir. 2009) (quoting Farmer, 511 U.S. at 837). “[D]eliberate
indifference includes something more than negligence but less than actual intent to harm;
it requires proof of a reckless disregard of the known risk.” Reynolds v. Dormire, 636
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F.3d 976, 979 (8th Cir. 2011). “Whether a prison official had the requisite knowledge of
a substantial risk is a question of fact subject to demonstration in the usual ways,
including inference from circumstantial evidence.” Farmer, 511 U.S. at 842.
Plaintiffs, as noted above, allege that their segregation cells were generally
unclean, their laundry was returned unclean, there was blood and feces on the walls, and
their mattresses were stained. (Compl. 6–8.) Similar conditions have been the basis for a
conditions-of-confinement claim. See, e.g., Howard v. Adkison, 887 F.2d 134, 137 (8th
Cir. 1989) (holding that a prisoner being placed in a cell covered with filth and human
waste for a two-year period without proper cleaning supplies constitutes cruel and
unusual punishment); Gates v. Cook, 376 F.3d 323, 338 (5th Cir. 2004) (finding
confinement in “extremely filthy [cells] with crusted fecal matter, urine, dried ejaculate,
peeling and chipped paint, and old food particles on the walls” was unconstitutional);
Hoskins v. Mezo, Case No. 14-cv-1427-NJR, 2015 WL 153820, at *3 (S.D. Ill. Jan. 12,
2015) (inmate alleging that he was placed in a cell with feces and blood smeared on the
walls, toilet, and pillow, trash strewn about the cell, and food trays infested with bugs
“identified unsanitary conditions that support a claim for unconstitutional conditions of
confinement”). Plaintiffs allegedly were forced to endure these conditions not for a few
hours or days, but for almost three months. See Hutto v. Finney, 437 U.S. 678, 686–87
(1978) (explaining that a filthy cell might “be tolerable for a few days and intolerably
cruel for weeks or months”); Whitnack v. Douglas Cnty., 16 F.3d 954, 958 (8th Cir.
1994) (explaining that the length of time required for conditions to be unconstitutional
decreases as level of filthiness increases). Plaintiffs further allege that they were confined
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to their cells for twenty-three hours per day, not allowing enough time for exercise. See
Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992) (finding that a “lack of exercise
may be a constitutional violation if one’s muscles are allowed to atrophy or if an inmate’s
health is threatened”). Finally, while Plaintiffs’ allegations regarding deliberate
indifference are sparse, Plaintiffs do allege that Defendant Mike-Lopez was informed
about or somehow made aware of the condition of Plaintiffs’ segregation cells. (Compl.
8.) Therefore, this Court finds that Plaintiffs have plausibly alleged an Eighth
Amendment claim against Defendant Mike-Lopez.
2.

Deliberate Indifference

The Eighth Amendment also prohibits deliberate indifference to prisoners’ serious
medical needs. Luckert v. Dodge Cnty., 684 F.3d 808, 817 (8th Cir. 2012). To prevail on
such a claim, a plaintiff must prove that a prison official acted with deliberate
indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
“Whether an official was deliberately indifferent requires both an objective and a
subjective analysis.” Jackson v. Buckman, 756 F.3d 1060, 1065 (8th Cir. 2014). The
objective prong requires the Plaintiff to “establish that he suffered from an objectively
serious medical need.” Id. Under the subjective prong, Plaintiff must show that an official
“actually knew of but deliberately disregarded his serious medical need.” Id. For the
subjective prong, “the prisoner must show more than negligence, more even than gross
negligence, and mere disagreement with treatment decisions does not give rise to the
level of a constitutional violation.” Popoalii v. Correctional Med. Servs., 512 F.3d 488,
499 (8th Cir. 2008). “The subjective inquiry must show a mental state akin to criminal
8

recklessness: disregarding a known risk to the inmate’s health.” Gordon ex rel. Gordon v.
Frank, 454 F.3d 858, 862 (8th Cir. 2006).
Plaintiffs fail to plausibly allege how any of the Defendants were deliberately
indifferent to their medical needs. For example, Plaintiffs allege that being placed in the
ACU exacerbated their mental health symptoms. But Plaintiffs do not allege that they
told any of the Defendants about their mental or medical health issues or that Defendants
knew or should have known about those concerns. See Saylor v. Nebraska, 812 F.3d 637,
644 (8th Cir. 2016) (explaining that a prison official is deliberately indifferent to an
inmate’s medical needs in violation of the Eighth Amendment if she “knows of and
disregards a serious medical need”). Instead, Plaintiffs’ allegations generically refer to
“Defendants” as having violated their rights and seem to imply that Defendants were
deliberately indifferent because they are DOC employees. This is not enough to plausibly
allege a claim for deliberate indifference. See Iqbal, 556 U.S. at 676 (“Because vicarious
liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has
violated the Constitution.”); Ellis v. Norris, 179 F.3d 1078, 1079 (8th Cir. 1999)
(affirming dismissal of complaint that “failed to allege facts supporting any individual
defendants’ personal involvement or responsibility for the violations”).
C.

Due Process

In their due process claim, Plaintiffs appear to challenge both their placement in
segregation (ACU) and the subsequent decision to place them on Administrative Control

9

Status and require them to participate in mental health treatment. (See Compl.; see also
Doc. No. 87, Pls.’ Mem.)
To state a claim under § 1983 for unconstitutional placement in administrative
segregation, a prisoner “must show some difference between his new conditions in
segregation and the conditions in the general population which amounts to an atypical
and significant hardship.” Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003); see also
Sandin v. Conner, 515 U.S. 472, 484 (1995). The Eighth Circuit has held that placement
in administrative segregation, “even without cause, is not itself an atypical and significant
hardship.” Orr v. Larkins, 610 F.3d 1032, 1034 (8th Cir. 2010) (finding a prisoner was
not deprived of a liberty interest during a nine-month stay in administrative segregation).
To the extent Plaintiffs are alleging that they were placed in segregation for three
months without due process, those allegations are insufficient to state a claim for relief.
See Wagner v. Gober, No. 4:15-CV-1789 CAS, 2016 WL 245409, at *2 (E.D. Mo.
Jan. 20, 2016) (“[P]laintiff alleges two placements in administrative segregation, each
lasting a little over three months. Under Eighth Circuit precedent, these allegations fail to
state a claim for a due process violation.”). For similar reasons, Plaintiffs do not plausibly
allege that their placement in a treatment program constitutes an atypical and significant
hardship. See, e.g., Cummings v. Darsey, Civil Action No. 06-5925 (RBK), 2007 WL
174159, at *5 (D.N.J. Jan. 16, 2017) (“Where treatment programs do not result in
‘atypical and significant hardship,’ a court will not micro-manage the decisions of prison
officials with respect to required treatment or educational programs.”); Williams v.
Wilkinson, 51 F. App’x 553, 556–57 (6th Cir. Nov. 15, 2002) (finding that forced
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participation in a substance abuse program is not a significant and atypical hardship);
Tinsely v. Goord, No. 05 Civ. 3921 (NRB), 2006 WL 2707324, at *5 (S.D.N.Y. Sept. 20,
2006) (“Nor do we believe that requiring an inmate to participate in a sex offender
treatment program ‘imposes atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.’”) (quoting Sandin, 515 U.S. at 484).
Therefore, Plaintiffs fail to state a claim for a due process violation.
D.

Exercise of Religion

Plaintiffs allege that their placement in segregation violated their rights to freely
exercise their respective religions. (Compl. 11–12.) “It is well-accepted that ‘prison
inmates retain constitutional rights protected by the First Amendment, including the right
to free exercise of religion.’” Native Am. Council of Tribes v. Weber, 750 F.3d 742, 748
(8th Cir. 2014) (quoting Fegans v. Norris, 537 F.3d 897, 902 (8th Cir. 2008)). Prisoners
also enjoy the additional protection for religious exercise by institutionalized persons
through the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), which
provides that “[n]o government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . . unless the government
demonstrates that imposition of the burden on that person” is “in furtherance of a
compelling governmental interest” and is “the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). To set forth a claim under
the Free Exercise Clause and RLUIPA, plaintiffs must demonstrate that the defendant’s
policies and actions substantially burden their ability to practice their religion. Gladson v.
Iowa Dep’t of Corr., 551 F.3d 825, 831, 833 (8th Cir. 2009). A substantial burden is one
11

that significantly inhibits or constrains religious conduct, meaningfully curtails an
inmate’s ability to express adherence to his faith, or denies an inmate reasonable
opportunities to engage in fundamental religious activities. Van Whye v. Reisch, 581 F.3d
639, 656 (8th Cir. 2009).
Plaintiffs allege that they were “precluded from taking part of/in any religious
practices, including but not limited to Sweat Lodge for the Native Americans, Catholic
services for the Catholic, Astru for the Astru practitioner, and feast for the Muslim
practitioner.” (Compl. 8.) This is at least a plausible allegation of substantial burden.
Plaintiffs, however, do not plausibly allege that any of the Defendants were personally
involved with allegedly having them placed in punitive segregation, thus burdening
Plaintiffs’ free exercise rights. 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 his constitutional rights.”).2 Therefore, Plaintiffs failed to state a
claim under the First Amendment or RLUIPA.

Plaintiffs do allege that Defendants Mike-Lopez, Medchill, Ried, and Rieshus
were “responsible for casting a vote to place the plaintiffs involuntarily in the ‘ACS’
treatment program,” and Defendant Rieser, in his capacity as Deputy Commissioner of
the Minnesota Department of Corrections, was “responsible for approving the plaintiffs
involuntary placement in the ‘ACS’ treatment program.” (Compl. 3–4.) As discussed
above, however, Plaintiffs were placed in ACS after the completion of their time in ACU.
This Court understands Plaintiffs’ free exercise claim to relate only to Plaintiffs’ time in
ACU, which is now complete.
2

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E.

Plaintiffs Are Not Entitled to Declaratory Relief, Injunctive Relief, or
Compensatory Damages, but have Stated a Claim for Punitive
Damages

As stated above, this Court concludes that Plaintiffs stated an actionable
conditions of confinement claim under the Eighth Amendment against Defendant MikeLopez. The type of relief they may recover, however, should be limited to punitive
damages for the following reasons.
First, Plaintiffs request a declaration that the ACU living conditions are
unconstitutional, and an injunction ordering Defendants to remedy those living
conditions. (Compl. 12–13.) Plaintiffs are not entitled to declaratory or injunctive relief
because, as their Complaint makes clear, Plaintiffs are no longer being held in the ACU.
See, e.g., Smith v. Hundley, 190 F.3d 852, 855 (8th Cir. 1999) (“[A]n inmate’s claims for
declaratory and injunctive relief to improve prison conditions were moot when he was
transferred to another facility and was no longer subject to those conditions.”). The
possibility that Plaintiffs could be transferred back to the ACU at some point in the future
is not enough to maintain a live controversy. See id.3, 4
Second, Plaintiffs request compensatory damages, but this request is blocked by
the PLRA’s prohibition against a prisoner receiving compensatory or actual damages for
3

Moreover, injunctive relief against government actors, such as the Defendants,
may only be recovered in an official-capacity suit. Plaintiffs sued Defendants in their
individual capacities, not in their official capacities. See Andrus ex rel. Andrus v.
Arkansas, 197 F.3d 953, 955 (8th Cir. 1999) (“The Eleventh Amendment does not bar
official-capacity claims for injunctive relief against state officials.”).
4

Plaintiffs also request injunctive relief in relation to their ACS placement. (See
Compl. 12.) As discussed above, however, Plaintiffs do not have an actionable claim for
relief with respect to their participation in ACS.
13

mental or emotional distress if the plaintiff does not allege a physical injury. See 42
U.S.C. § 1997e(e) (“No Federal civil action may be brought by a prisoner confined in a
jail, prison, or other correctional facility, for mental or emotional injury while in custody
without a prior showing of physical injury or the commission of a sexual act.”). The
PLRA’s physical-injury requirement applies to all constitutional claims, including First
Amendment claims. See Sisney v. Reisch, 674 F.3d 839, 843 (8th Cir. 2012) (recognizing
that “the circuit courts are split in their interpretation of § 1997e(e)”); Royal v. Kautzky,
375 F.3d 720, 723 (8th Cir. 2004) (“Congress did not intend section 1997e(e) to limit
recovery only to a select group of federal actions brought by prisoners. Instead, we read
section 1997e(e) as limiting recovery for mental or emotional injury in all federal actions
brought by all prisoners.”).
Plaintiffs allege that they experienced “sensory deprivation,” that the alleged
constitutional violations caused them “physical injuries/distress, including but not limited
to, being unable to eat, sleep disturbance and other injuries,” and “caused the plaintiffs
mental injuries, including but not limited to, of suicidal and/or homicidal thoughts,
feelings, emotions, or ideations, and/or exacerbation of pre-existing serious mental
illnesses.” (Compl. 2.) While Plaintiffs use the term “physical injury” and discuss certain
ways they were impacted due to the alleged violations, Plaintiffs do not allege that they
suffered a separate physical injury. “A straightforward reading of Section 1997e(e)
requires that a prisoner cite a physical injury that is separate from mental and emotional
injuries he may have suffered. Consistent with this reading, a number of courts have held
that a prisoner cannot satisfy Section 1997e(e) by alleging only that he suffered from the
14

physical manifestations of mental or emotional injuries.” Hughes v. Colorado Dep’t of
Corr., 594 F. Supp. 2d 1226, 1238 (D. Colo. 2009) (collecting cases).
Third, Plaintiffs request punitive damages. “Punitive damages may be awarded
under 42 U.S.C. § 1983 ‘when the defendant’s conduct is shown to be motivated by evil
motive or intent, or when it involves reckless or callous indifference to the federally
protected rights of others.’” Schaub v. VonWald, 638 F.3d 905, 922 (8th Cir. 2011)
(quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). The standard for “deliberate
indifference” is substantially the same as the standard to show “reckless or callous
indifference.” See Tennon v. Dreibelbis, 190 F. Supp. 3d 412, 418 (M.D. Penn. 2016)
(collecting cases). Therefore, because Plaintiffs have stated a claim for conditions-ofconfinement under the Eighth Amendment, Plaintiffs have also stated a claim for punitive
damages with respect to that claim. See Royal, 375 F.3d at 723 (stating that § 1997e(e)
bars claims for compensatory damages, but not for nominal damages, punitive damages,
and injunctive and declaratory relief); Brown v. Martinez, Civil No. 3:CV-03-2392, 2007
WL 2225842, at *6 (M.D. Penn. July 31, 2007) (“By its plain terms, § 1997e(e) bars
relief for ‘mental or emotional injury,’ but does not otherwise limit the relief available to
prisoners for Eighth Amendment violations.”); id. at *6 n.8 (“The rule for awarding
punitive damages is unaffected by the actual injury requirement.”).
III.

Motions for Spoliation and for Sanctions
On September 6, 2018, Plaintiff Jackson moved for “Spoliation” against the

Defendants. (Doc. No. 75.) Jackson claims that Defendants have destroyed evidence and
legal documentation relating to this lawsuit. (See id.; Doc. Nos. 77, 78.) In response,
15

Defendants explain that none of Jackson’s legal property or documents have been
destroyed, and after this motion was filed, Jackson was given instructions on how to
access his documents. (Doc. No. 80, Affidavit of Victor Wanchena (“Wanchena Aff.”)
¶ 8.) Plaintiff Plentyhorse also has access to his legal materials. (Id. ¶¶ 9–10.) This
motion will therefore be denied.
Plaintiff Jackson, however, filed a follow-up motion on September 26, 2018, an
“Emergency Motion for Fines and Sanctions Resulting From Perjury.” (Doc. No. 84.)
Jackson asserts that defense witness Victor Wanchena committed perjury in response to
the Spoliation motion by stating that Plaintiff Jackson “was allowed limited property
while in segregation and his remaining personal property was delivered to him when he
arrived in B-West.” (Id. at 1 (citing Wanchena Aff. ¶ 3).) Jackson also argues that
Defendants’ attorney committed perjury by arguing that in September 2018, DOC staff
delivered a portion of legal documents to Jackson’s cell. (Id.)
Plaintiff Jackson requests sanctions under Rule 11 of the Federal Rules of Civil
Procedure. Jackson, however, did not serve Defendants under Rule 5 before filing with
the Court as required by Rule 11(c)(2). Moreover, the conduct as described by Jackson is
not sanctionable. This motion will therefore also be denied.
ORDER
Based on the files, records, and proceedings herein, IT IS HEREBY ORDERED
that:
1.

Plaintiffs’ Motion for Spoliation (Doc. No. 75) is DENIED; and

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2.

Plaintiffs’ Emergency Motion for Fines and Sanctions Resulting From

Perjury (Doc. No. 84) is DENIED.
RECOMMENDATION
Based on the files, records, and proceedings herein, IT IS HEREBY
RECOMMENDED that:
1.

Defendants’ Motion to Dismiss (Doc. No. 61) be GRANTED IN PART

and DENIED IN PART.

Dated: December 20, 2018.

s/ Becky R. Thorson
BECKY R. THORSON
United States Magistrate Judge

Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals. Under Local Rule 72.2(b)(1), a party may file and serve specific written
objections to this Report within fourteen days. A party may respond to those objections
within fourteen days after service thereof. LR 72.2(b)(2). All objections and responses
must comply with the word or line limits set forth in LR 72.2(c).

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