Blazer v. Gall et al

Filing 40

ORDER denying 23 Motion to Dismiss for Failure to State a Claim; denying 27 Motion to Dismiss for Failure to State a Claim; denying 30 Motion to Strike ; granting 5 Motion to Appoint Counsel ; granting 10 Motion to Appoint Counsel ; granting 13 Motion to Appoint Counsel ; and granting 38 Motion to Appoint Counsel Signed by U.S. District Judge Charles B. Kornmann on 09/20/2017. (SAC)

FILED
UNITED STATES DISTRICT COURT

SEP 2 1 2017

DISTRICT OF SOUTH DAKOTA

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NORTHERN DIVISION
ROBERT A BLAZER,

1: 16-CV-O 1046-CBK

Plaintiff,
vs.
KEITH GALL, Corson County Sheriff; JOSH
BOLL, Walworth County Sheriff; ALAND.
DALE, Deputy at Corson County, SD; JUSTIN
TVEDT, Deputy at Corson County, SD; MIKE
VARILEK, Deputy at Corson County, SD;
KILEY FRANKLIN, Jailer/Guard at Walworth
County Jail; KIMBERLY LONG KNIFE,
Jailer/Guard at Walworth County Jail; JUSTIN
UNKNOWN, Jailer/Guard at Walworth County
Jail; MARRISSA UNKNOWN, Jailer/Guard at
Walworth County Jail; HEATHER KROONJE,
Jailer/Guard at Walworth County Jail; PATTY
UNKNOWN, Jailer/Guard at Walworth County
Jail; JERAMY JOHNSON, Jailer/Guard at
Walworth County Jail; LANCE UNKNOWN,
Jailer/Guard at Walworth County Jail; ERIC
BOUGE, Corson County SD States Attorney;
DEPUTY BENTZ, Deputy at Walworth County
Jail; RON UNKNOWN, Jailer/Guard at
Walworth County Jail; GLENN UNKNOWN,
Jailer/Guard at Walworth County Jail; TAMMY
UNKNOWN, Jailer/Guard at Walworth County
Jail; and CINDY UNKNOWN, Jailer/Guard at
Walworth County Jail;

ORDER

Defendants.

Plaintiff instituted this action pursuant to 42 U.S.C. § 1983 alleging deprivation of
constitutional rights while he was a pretrial detainee. Plaintiff was allowed to proceed without
the prepayment of fees and the U.S. Marshals Service was ordered to effect service.
Many of the defendants alleged to have been employed by Walworth County are named
by first name only. I indicated in my previous order directing service that the surnames of those
defendants should be supplied to the plaintiff. Nonetheless, when counsel entered their

appearances on behalf of the Walworth County defendants, they specifically entered an
appearance for those defendants by first name only. Likewise, their motion to dismiss and brief
fail to set forth the surnames of those defendants.
The U.S. Marshals Service filed returns of service for all defendants. Defendants Justin
Unknown, Patty Unknown, Lance Unknown, Glenn Unknown, and Cindy Unknown were all
"personally" served, although the return of service shows only that some persons named Justin,
Patty, Lance, Glenn, and Cindy were served. The U.S. Marshals Service did not indicate at all
who exactly was served.
Defendants Jeremy Johnson, Marissa Unknown, Heather Kroonje, Ron Unknown, and
Tammy Unknown were not served. The U.S. Marshals Service indicated on the return of service
that those persons were no longer employed by Walworth County.
All defendants were named in their individual and official capacities. The Court deleted
reference to capacity in the caption for brevity.
The Corson County and Walworth County defendants have moved to dismiss the official
capacity claims for failure to state a claim that any official policy or custom was the moving
force behind any claimed constitutional violations. The Corson County defendants further
contend that dismissal is appropriate because plaintiffs claims do not support a finding of
deliberate indifference, that plaintiff has failed to allege any claim against defendants Dale,
Tvedt, Varilek, or Bogue, and that defendant Bogue is entitled to prosecutorial immunity if it is
contended that any claims arise out of his prosecution of the plaintiff.
Plaintiff has moved to strike what he claims are motions for summary judgment,
contending that defendants have failed to properly support such a motion. I reject that
contention. Defendants filed motions to dismiss and briefs in support thereof as required by the
Federal Rules of Civil Procedure and the Local Rules for the District of South Dakota.
Plaintiff contends that defendants have failed to timely file an answer and that defendants
have waived certain defenses. No answer is due at this time since the Court has not yet ruled on
the pre-answer motions to dismiss.
Plaintiff contends counsel of record for the defendants have acted in violation of the law
and in violation of the code of ethics in filing and pursuing the motions to dismiss. I reject
outright any such contention. Counsel for defendants have properly raised certain issues by preanswer motion to dismiss as required by Fed. R. Civ. P. 12(b).
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Plaintiff has filed motions for the appointment of counsel.
DECISION

Pretrial detainee's conditions of confinement claims arise out of the Fourteenth
Amendment's Due Process Clause. Walton v. Dawson, 752 F.3d 1109, 1117 (8th Cir. 2014)
("Although 'the Eighth Amendment has no application' until there has been a 'formal
adjudication of guilt,' the Fourteenth Amendment gives state pretrial detainees-just as the Fifth
Amendment gives federal pretrial detainees-rights which are 'at least as great as the Eighth
Amendment protections available to a convicted prisoner."') (City of Revere v. Mass. Gen.
Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983)). "The Constitution affords
greater protection to quoting a pretrial detainee compared to a convicted inmate in the sense that
'[d]ue process requires that a pretrial detainee not be punished."' Walton v. Dawson, 752 F.3d at
1117 (quoting Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)).
Under the Due Process Clause, a pretrial detainee may be subject to conditions and
restrictions only to the extent such conditions do not amount to punishment. Bell v. Wolfish,
441 U.S. at 536, 99 S.Ct. at 1872-73. Under the Due Process Clause, prior to an adjudication of
guilty a pretrial detainee cannot be punished "at all." Kingsley v. Hendrickson,_ U.S._,
_ , 135 S. Ct. 2466, 2475, 192 L. Ed. 2d 416 (2015).
"[W]hen the State by the affirmative exercise of its power so restrains an
individual's liberty that it renders him unable to care for himself, and at the same
time fails to provide for his basic human needs-e.g., food, clothing, shelter,
medical care, and reasonable safety-it transgresses the substantive limits on state
action set by the Eighth Amendment and the Due Process Clause." Pretrial
detainees and convicted inmates, like all persons in custody, have the same right
to these basic human needs. Thus, the same standard of care is appropriate.
Butler v. Fletcher, 465 F.3d 340, 344-45 (8th Cir. 2006) (quoting DeShaney v. Winnebago
County Dept. of Soc. Serv .. 489 U.S. 189, 200, 109 S.Ct. 998, 1005, 103 L.Ed.2d 249
(1989)). The Constitution requires that 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 v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970,
1976, 128 L. Ed. 2d 811 (1994)(quoting Hudson v. Palmer, 468 U.S. 517, 526-527, 104 S.Ct.
3194, 3200, 82 L.Ed.2d 393 (1984)).

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Plaintiff contends in his amended complaint that, while he was a pretrial detainee in the
custody of Corson County and housed at the Walworth County Jail from October 1, 2015, to
June 20, 2016, he was denied medications which had previously been prescribed by a physician
for diabetes, high blood pressure, and mental health conditions. He contends that he developed
nerve damage in his legs as a result of the denial of these medicines. Plaintiff further contends
that the jail conditions were unsanitary. He contends that mold and insulation dust were present,
that food was served without gloves, that spoiled food was served, and that he became sick as a
result. He contends that, during transport to the Human Services Center for an evaluation, the
driver, a county employee, drove at excessive rates of speed, endangering his life. He contends
that he was subject to work being done on the steel bed frame in his cell without protective earwear and that, as a result, he suffers from tinnitus. He contends that he was housed with relatives
of witnesses or the victim of his charged offense which compromised his safety. Finally,
plaintiff contends that he was punished for complaining about the foregoing by placement in "the
hole" or by having heat denied (to the point that the jailers wore jackets).
Although the Constitution "does not mandate comfortable prisons," pretrial detainees
may not be denied "the minimal civilized measure oflife's necessities." Rhodes v. Chapman,
452 U.S. 337, 347, 349, 101 S.Ct. 23,92, 2399, 2400, 69 L.Ed.2d 59 (1981). Conditions of
confinement may violate the Constitution either alone or in combination when they deprive an
"identifiable human need such as food, warmth, or exercise--for example, a low cell temperature
at night combined with a failure to issue blankets." Wilson v. Seiter, 501 U.S. 294, 304, 111 S.
Ct. 2321, 2327, 115 L. Ed. 2d 271 (1991).
"Prisoners and pretrial detainees are protected under the Constitution from a state actor's
deliberate indifference towards the inmate's serious medical needs." Corwin v. City of
Independence, Mo., 829 F.3d 695, 698 (8th Cir. 2016). The Eighth Circuit has discussed the
difference between the Eighth Amendment protection from cruel and unusual punishment and
the Fourteenth Amendment protection from punishment prior to adjudication of guilt but has
consistently applied the deliberate indifference standard "to pretrial detainee claims that prison
officials unconstitutionally ignored a serious medical need or failed to protect the detainee from a
serious risk of harm." Butler v. Fletcher, 465 F.3d 340, 344 (8th Cir. 2006).

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"An objectively serious medical need is one that either has been diagnosed by a physician
as requiring treatment, or is so obvious that even a layperson would easily recognize the
necessity for a doctor's attention." McRaven v. Sander, 577 F.3d 974, 982 (8th Cir. 2009)
(quoting Jones v. Minnesota Dept. of Corr., 512 F.3d 478, 481 (8th Cir. 2008)). "The
constitutional obligation to provide medical care to those in custody may be violated when
officials "intentionally deny or delay access to medical care or intentionally interfere with the
treatment once prescribed." Dadd v. Anoka County, 827 F.3d 749, 755 (8th Cir. 2016) (quoting
Estelle v. Gamble, 429 U.S. 97, 104--05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). See also,
Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) ("[D]elays in treating painful medical
conditions, even if not life-threatening, may support an Eighth Amendment claim.").
The standard applied is the same as Eighth Amendment claims applicable to prison
inmates. Ryan v. Armstrong, 850 F.3d 419, 425 (8th Cir. 2017). To state a claim for deliberate
indifference, a pretrial detainee must show that he "'suffered from an objectively serious medical
need' and that one or more defendants 'had actual knowledge of that need but deliberately
disregarded it."' Id., (citing Bailey v. Feltmann, 810 F.3d 589, 593-94 (8th Cir. 2016)).
"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."' Ashcroft v. Igbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)).
"[W]ell-pleaded facts, not legal theories or conclusions, determine [the] adequacy
of [t]he complaint." Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir.2009)
(alterations in original) (quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 698
(8th Cir.2003)). "The facts alleged in the complaint must be enough to raise a
right to relief above the speculative level." Id. (quoting Drobnak v. Andersen
Corp., 561 F.3d 778, 783 (8th Cir.2009)). "Determining whether a complaint
states a plausible claim for relief ... [is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense." Igbal, 556
U.S. at 679, 129 S.Ct. 1937. We may consider materials that necessarily are
embraced by the pleadings or that are part of the public record and do not
contradict the complaint. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079
(8th Cir.1999).
Mickelson v. County of Ramsey, 823 F.3d 918, 923 (8th Cir. 2016).
Prose complaints are construed liberally. Stone v.Harry, 364 F.3d 912, 914 (8th Cir.
2004) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)).
Plaintiff has stated sufficient facts against the defendants for violation of his Constitutional

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rights. He claims that the Walworth County defendants told him his medical care was being
denied because "Corson County would no longer pay" for it. He claims that each named Corson
County and Walworth County sheriff, deputy, and jailer was made personally aware that he
needed medical care and each defendant denied him access to such care. He claims that he
suffered permanent injury as a result. He likewise sets forth in detail specific instances of the
denial of sanitation, safe food, warmth, and safety. The motions to dismiss for failure to state a
claim should be denied.
The United States Supreme Court set forth in Kentucky v. Graham, a tutorial explaining
the difference between official capacity and individual capacity suits under 42 U.S.C. 1983.
Personal-capacity suits seek to impose personal liability upon a government
official for actions he takes under color of state law. Official-capacity suits, in
contrast, "generally represent only another way of pleading an action against an
entity of which an officer is an agent." As long as the government entity receives
notice and an opportunity to respond, an official-capacity suit is, in all respects
other than name, to be treated as a suit against the entity. It is not a suit against
the official personally, for the real party in interest is the entity. Thus, while an
award of damages against an official in his personal capacity can be executed
only against the official's personal assets, a plaintiff seeking to recover on a
damages judgment in an official-capacity suit must look to the government entity
itself.
On the merits, to establish personal liability in a § 1983 action, it is enough to
show that the official, acting under .color of state law, caused the deprivation of a
federal right. More is required in an official-capacity action, however, for a
governmental entity is liable under § 1983 only when the entity itself is a "moving
force" behind the deprivation; thus, in an official-capacity suit the entity's "policy
or custom" must have played. a part in the violation of federal law.
Kentuckyv. Graham, 473 U.S. 159, 165-66, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985).
Justice Sotomayor reiterated that difference in a recent decision.
In an official-capacity claim, the relief sought is only nominally against the
official and in fact is against the official's office and thus the sovereign itself.
This is why, when officials sued in their official capacities leave office, their
successors automatically assume their role in the litigation. The real party in
interest is the government entity, not the named official. "Personal-capacity suits,
on the other hand, seek to impose individual liability upon a government officer
for actions taken under color of state law." "[O]fficers sued in their personal
capacity come to court as individuals," and the real party in interest is the
individual, not the sovereign.

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Lewis v. Clarke,_ U.S._,_, 137 S. Ct. 1285, 1291, 197 L. Ed. 2d 631 (2017) (internal
citations omitted).
Plaintiff claims in his pro se amended complaint that one of the claimed reasons for the
denial of medical care was that "Corson County would no longer pay" for it. Reading the pro se
amended complaint liberally, plaintiff has set forth a claim that Corson County had some policy
or custom of refusing to pay for medical care for pretrial detainees held at the Walworth County
jail and that Walworth County had some policy or custom ofrefusing to provide medical care for
Corson County detainees housed in Walworth County unless Corson County paid for such care.
The official capacity claims against the named officials adequately plead an action against the
entities of which the individual officers are an agent as required by Graham v. Kentucky.
Plaintiffs amended complaint does not state how defendant Eric Bouge (sic), the Corson
County States Attorney, violated any Constitutional right. Defendant Corson County States
Attorney's motion to dismiss should be granted.
Now, therefore,
IT IS ORDERED:
1.

Defendant Corson County States Attorney's motion, Doc. 23, to dismiss is granted.

2. The motion, Doc. 23, to dismiss by all other Corson County defendants is denied.
3. The motion, Doc. 27, to dismiss by the Walworth County defendants is denied.
4. The motion, Doc. 30, to strike by the plaintiff is denied.
5. The motions, Docs. 5, 10, 13, and 38, by the plaintiff to appoint counsel are granted.
DATED this dd&day of September, 2017.
BY THE COURT:

~euih-116~~
CHARLES B. KORNMANN
United States District Judge

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