Hart v. Bertsch et al

Filing 55

ORDER ADOPTING REPORT AND RECOMMENDATIONS 51 ; denying 42 Motion to Dismiss for Lack of Jurisdiction; granting 44 Motion to Appoint Counsel; denying 52 Motion to Amend/Correct; granting in part and denying in part 31 Motion for Summary Judgment by Judge Daniel L. Hovland.(MM) Distributed on 5/31/2016. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
William Jude Hart,

)
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Plaintiff,
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ORDER ADOPTING REPORT
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AND RECOMMENDATIONS
vs.
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)
Case No. 1:14-cv-013
Lean, K. Bertsch, Robyn Schmalenberger, )
Rick Gardner, and Bruce Korte,
)
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Defendants.
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______________________________________________________________________________
The Plaintiff, William Jude Hart, is an inmate at the North Dakota State Penitentiary. He
initiated this civil rights action against the Defendants on February 6, 2014. See Docket No. 2. The
Plaintiff alleges the Defendants discriminated against him based on his race when they denied him
re-employment at Rough Rider Industries. An amended complaint, which supplements the original
complaint, was filed on March 12, 2014. See Docket No. 9. The Defendants filed a motion for
summary judgment on June 19, 2015. See Docket No. 31. The Defendants filed a motion to dismiss
on September 8, 2015. See Docket No. 42. The Plaintiff filed a motion for appointment of counsel
on September 23, 2015. See Docket No. 44. The motions were referred to Magistrate Judge Charles
S. Miller, Jr. for a Report and Recommendation.
On May 9, 2016, Judge Miller issued his Report and Recommendation wherein he
recommended granting in part and denying part the motion for summary judgment, denying the
motion to dismiss, and granting the motion for appointment of counsel. The parties were given
fourteen (14) days to file any objections to the Report and Recommendation. No objections were
filed. However, the Plaintiff filed a motion to amend his complaint to seek punitive damages on
May 16, 2016. See Docket No. 52. The Defendants are opposed to the motion to amend. See
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Docket No. 54.
The Court has carefully reviewed the Report and Recommendation, the relevant case law,
and the entire record, and finds the Report and Recommendation to be persuasive. The Defendant
has submitted sufficient evidence of racial discrimination to survive the Defendants’ motions.
Accordingly, the Court ADOPTS the Report and Recommendation (Docket No. 51) in its entirety.
The Defendants’ motion for summary judgment (Docket No. 31) is GRANTED in part and
DENIED in part as explained in the Report and Recommendation. The Defendants’ motion to
dismiss (Docket No. 42) is DENIED. The Plaintiff’s motion for appointment of counsel is
GRANTED. Having appointed counsel for the Plaintiff, the pro se motion to amend (Docket No.
52) is DENIED without prejudice.
IT IS SO ORDERED.
Dated this 31st day of May, 2016.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court

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