Greywind v. Podrebarac et al

Filing 43

ORDER by Judge Daniel L. Hovland adopting 40 Report and Recommendations.; finding as moot 23 Motion to Certify Class; granting 26 Motion for Summary Judgment (QF) Distributed to pro se plaintiff on 10/5/2011 (jd).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
John Willard Greywind,

)
)
Plaintiff,
)
ORDER ADOPTING REPORT
)
AND RECOMMENDATION
vs.
)
)
Case No. 1:10-cv-006
James T. Podrebarac, Leann Bertsch,
)
Patrick Brandson, and Kathy Bachmeier,
)
)
Defendants.
)
______________________________________________________________________________

On December 2, 2010, the defendants filed a “Motion for Summary Judgment.” See Docket
No. 26. The plaintiff, John Willard Greywind, filed a response in opposition to the defendants’
motion on February 25, 2011. See Docket No. 32. On March 14, 2011, the defendants filed a reply
brief.

See Docket No. 33.

Magistrate Judge Charles S. Miller, Jr. issued a “Report and

Recommendation” on September 12, 2011. See Docket No. 40. Judge Miller recommended that:
defendants’ Motion for Summary Judgment (Docket No. 26) be GRANTED; that
Greywind’s complaint (Docket No. 5) be DISMISSED WITH PREJUDICE and
that Greywind’s Motion for Class Certification (Docket No. 23) be DENIED AS
MOOT.
See Docket No. 40, p. 17.
Greywind filed an “Objection to Magistrates Recommendation, Pursuant to D.N.D. Civil.
L.R. 72.1(D)(3)” on September 28, 2011. See Docket No. 42. Greywind challenges Judge Miller’s
authority to issue the Report and Recommendation:
Magistrate did not have the authority to make a ruling in this case, at the onset of this
case plaintiff, signed a form and filed it with this court asking that a UNITED
STATE DISTRICT JUDGE make all rulings in this case, this case was assigned to
a U.S. JUDGE, there was never an order in this case allowing a magistrate to make
rulings in this case.
***

There is no court order in this record that gives the Magistrate authority to make
rulings or recommendation in this case. The United States Judge that is assigned to
this case should make a new ruling, and not use any of the wording that the
magistrate used in his recommendation, so as to protect plaintiff’s constitutional
rights in the interest of justice.
See Docket No. 42, pp. 1, 3 (errors in original).
Under 28 U.S.C. § 636(b)(1)(B) and Fed. R. Civ. P. 72(b)(1), magistrate judges have
authority to issue reports and recommendations for dispositive motions relating to prisoner claims
challenging conditions of confinement, such as civil rights claims under 42 U.S.C. § 1983. See
Branch v. Martin, 886 F.2d 1043, 1045 n.1 (8th Cir. 1989) (explaining “conditions of confinement”
has been interpreted to include nearly all 42 U.S.C. § 1983 claims related to health, safety, or
punishment); Hobbs v. Lockhart, 46 F.3d 864, 867 (8th Cir. 1995) (explaining “magistrate judges
are authorized [in a prisoner’s 42 U.S.C. § 1983 claim] to conduct hearings ... and to submit to the
district court proposed findings of fact and conclusions of law and recommendations for the
disposition of the case.”); see also D.N.D. Civ. L. R. 72.1(B)(4). The district judge reviews the
report and recommendation and has the discretion to adopt, reject, or modify the proposed finding
and conclusions in the report and recommendation. 28 U.S.C. § 636(b)(1)(B); D.N.D. Civ. L. R.
72.1(D)(3). The United States Supreme Court has found that this procedure complies with Article
III of the United States Constitution. See United States v. Raddatz, 447 U.S. 667, 681-84 (1980).
Therefore, Judge Miller acted in accordance with the law and within his authority as magistrate
judge when he issued the Report and Recommendation.
Greywind objects to several of the proposed findings and conclusions within Judge Miller’s
Report and Recommendation. Greywind contends Judge Miller erroneously concluded that he failed

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to establish that the defendants acted with deliberate indifference of his serious medical condition.
See Docket No. 42, pp. 1-2. He also contends:
3.

This court erroneously rules that prison official’s have 11th amend. Immunity
in this case. These were willful acts dictated by policies that the defendant’s
created, under North Dakota law N.D.C.C. § 9-10-06:”everyone is liable for
willful acts”. North Dakota Department of Corrections and rehabilitation has
excepted Federal funding, that by the states expectances of in fact waives any
11th amend immunity thy might have, see, Fredrick v. Dept. of Public
Welfare, 157 F.Supp.2d 509, 510 (E.D.Pa.2001).

4.

Plaintiff has shown to this court that through their actions they have willfully
acted indifferent to plaintiff’s medical needs. This was a blatant disregard for
plaintiffs health and prison officials should have known through their actions
and adherence to an unconstitutional blanket prison policy, that they willfully
violated statutory and constitutional rights of plaintiff. The prison official
should be expected to have known that this type of conduct, would allow
actions against them in their personal capacity, see; Harlow v. Fitzgerald, 102
S.Ct. 2727 (1982). Boykin v. Bloomsburg Univ., 839 F.Supp. 400 (3rd Cir.
1995), Flannagan v. Shively, 783 F.Supp. 922 (3rd Cir. 1992)

5.

Plaintiff’s claim involved blanket medical policies that denied not just
plaintiff but all prisoners with the North Dakota Department of Correction
and Rehabilitation adequate medical care that treatment of inmate/patient
should be done on a person to person, illness/injury basis and not determined
by blanket prison policy. Plaintiff cause of action clearly states this and
because is affects all prisoners, this courts should have granted plaintiff
CLASS ACTION STATUS.

See Docket No. 42, pp. 2-3 (emphasis and errors in original).
The Court has carefully reviewed the Report and Recommendation, relevant case law, and
the entire record, and finds the Report and Recommendation to be persuasive. Accordingly, the
Court ADOPTS the Report and Recommendation (Docket No. 40) in its entirety; GRANTS the
defendant’s “Motion for Summary Judgment” (Docket No. 26); DISMISSES WITH PREJUDICE
the plaintiff’s complaint (Docket No. 5); and DENIES AS MOOT the plaintiff’s “Motion to Certify
Class” (Docket No. 23).

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IT IS SO ORDERED.
Dated this 5th day of October, 2011.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court

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