Harp v. Mike Durfee State Prison

Filing 56

ORDER granting in part and denying in part 43 Motion for Summary Judgment; denying [] Motion to Appoint Counsel. Signed by U.S. District Judge Karen E. Schreier on 1/31/13. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
GEORGE HARP,

)
)
Plaintiff,
)
)
vs.
)
)
SECRETARY OF CORRECTIONS,
)
(D.O.C), Individually and in his
)
official capacity;
)
SOUTH DAKOTA PRISON MEDICAL
)
DEPARTMENT STAFF, Individually
)
and in their official capacity;
)
ROBERT DOOLEY, Warden Mike
)
Durfee State Prison, individually and )
in official capacity;
)
DR. EUGENE REGIER, Under
)
contract to South Dakota
)
Department of Health, Individually
)
and his official capacity;
)
DR MELVIN WALLINGA, Under
)
contract to South Dakota
)
Department of Health, Individually
)
and his official capacity;
)
DOUGLAS WEBER, Warden of The
)
South Dakota State Penitentiary,
)
individually and In his official
)
capacity; and
)
KEITH DITMANSON, D-Unit Manager )
South Dakota State of South Dakota )
Penitentiary, Jameson Annex,
)
Individually and in his Official
)
capacity,
)
)
Defendants.
)
)

Civ. 11-4149-KES

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT
AND DENYING PLAINTIFF’S
MOTION TO APPOINT COUNSEL

Plaintiff, George Harp, is an inmate at Mike Durfee State Prison (MDSP)
in Springfield, South Dakota.1 On October 18, 2011, and again on January 3,
2012, plaintiff filed a pro se civil rights lawsuit pursuant to 42 U.S.C. § 1983,
alleging that defendants subjected him to cruel and unusual conditions, failed
to protect him from violence, and acted with deliberate indifference toward his
serious medical needs, all in violation of the Eighth Amendment. Docket 1, 7.
The court screened Harp’s complaint pursuant to 28 U.S.C. § 1915 and
dismissed one of his three claims for failure to exhaust administrative
remedies. Docket 10. Defendants answered, denied all claims against them,
and asserted various affirmative defenses. Docket 18, 23. On June 19, 2012,
the court granted Harp leave to amend his complaint to add Unit Manager
Keith Ditmanson as a defendant. Docket 34. Harp filed an amended complaint
on July 23, 2012, and added Ditmanson as a defendant. Docket 36. Harp also
provided additional information regarding each of his remaining claims. Id.
Once again, the defendants answered, denying all claims against them and
reasserting various affirmative defenses. Docket 41.

1

Harp was transferred from MDSP to the South Dakota State
Penitentiary (SDSP) in Sioux Falls, South Dakota, on October 20, 2011.
Docket 4. On January 22, 2013, the court received notice that Harp had
returned to MDSP. Docket 55. At issue in this case are claims against both
institutions.
2

Defendants now move for summary judgment. Docket 43. Harp has filed
objections to the motion for summary judgment (Docket 49), and defendants
have responded to Harp’s objections (Docket 52). The court has considered the
arguments of each party, and for the reasons set forth herein, the court grants
in part and denies in part defendants’ motion for summary judgment.
FACTUAL BACKGROUND
In the light most favorable to Harp, the facts are as follows:
Harp is an inmate in the custody of the South Dakota Department of
Corrections (DOC). Docket 44 at ¶ 1; Docket 49 at ¶ 1. Harp has been
incarcerated at both MDSP and SDSP. Docket 44 at ¶ 1; Docket 49 at ¶ 1. At
issue in this case is alleged conduct that occurred at both facilities. According
to Harp, defendant Dooley allowed prison officials at MDSP to assault and
threaten Harp, thus violating his Eighth Amendment right to be free from
cruel and unusual punishment. Docket 7 at 4; Docket 44 at ¶ 2; Docket 49 at
¶ 2. Furthermore, Harp claims that defendants Dr. Regier, Dr. Wallinga, and
Unit Manager Ditmanson have refused him access to his prescribed
medications and are thus in violation of the Eighth Amendment for acting with
deliberate indifference toward his serious medical needs. Docket 7 at 6;
Docket 44 at ¶ 2; Docket 49 at ¶ 2.
Defendants argue that they are entitled to summary judgment on all
claims due to Harp’s failure to exhaust administrative remedies prior to filing

3

this lawsuit. Docket 43. As defendants have established and Harp does not
dispute, prior to filing a lawsuit,
[t]he administrative remedy policy implemented by the DOC and
followed by both the South Dakota State Penitentiary and Mike
Durfee State Prison requires that an inmate follow a two-step
process to present complaints concerning the application of any
administrative directive, policy, unit rule, or procedure. First, the
inmate must file an Informal Resolution Request. Second, if the
issue is not resolved, the inmate must, within five days of the
Informal Resolution Request response, file a Request for
Administrative Remedy. For certain issues, inmates are also able
to appeal to the Secretary of Corrections.
Docket 44 at ¶ 11; Docket 46 at ¶ 5; Docket 49 at ¶ 11.
According to Harp, however, although this policy exists, it is not
practiced by Unit Staff at either MDSP or SDSP. Docket 49 at ¶ 11. In his
response to defendants’ motion for summary judgment, Harp insists that he
attempted to utilize the administrative remedy procedure at both facilities, but
his concerns were not addressed. More specifically, Harp asserts that he “filed
an Informal Resolution Request on each issue raised herein except the issue of
the beating and threats by staff at the Mike Durfee State Prison.”2 Docket 49
2

In his original complaint, Harp admitted that he did not exhaust
administrative remedies with regard to each of his claims, and during the
initial screening of Harp’s complaint, the court dismissed one of his three
claims on such grounds. Docket 10. The court allowed Harp’s two remaining
claims to proceed, however, due to the reasons Harp provided for failing to
exhaust administrative remedies. Id. More specifically, with regard to the claim
that prison officials at MDSP assaulted and threatened him, Harp indicated
that, although he submitted a request for administrative relief, he did not
appeal the request for relief to the highest level because he was refused access
to do so. Id. at 4. With regard to Harp’s claim that defendants Dr. Regier,
4

at ¶ 12. Harp submitted these requests by placing each “under the appropriate
Unit Stff [sic] Member’s door.” Id. “When not responded to in a timely manner,
[Harp] considered the request for informal resolution denied on each issue,
and filed the appropriate Request for Administrative Remedy by placing same
in the Unit Mail Box.” Id. Harp, however, never received a response to his
complaints. Id.
STANDARD OF REVIEW
“Summary judgment is appropriate when the evidence,3 viewed in a light
most favorable to the non-moving party, demonstrates that there is no genuine
issue of material fact, and that the moving party is entitled to judgment as a
matter of law.” Clark v. Kellogg, Co., 205 F.3d 1079, 1082 (8th Cir. 2000); see
also Fed. R. Civ. P. 56(a). “Once the motion for summary judgment is made
and supported, it places an affirmative burden on the non-moving party to go
beyond the pleadings and by affidavit or otherwise designate specific facts
showing that there is a genuine issue for trial.” Commercial Union Ins. Co. v.
Schmidt, 967 F.2d 270, 271 (8th Cir. 1992) (internal quotations and citations
omitted). “Only disputes over facts that might affect the outcome of the suit

Dr. Wallinga, and Unit Manager Ditmanson refused him access to prescribed
medication, Harp indicated that he did not submit a request for administrative
relief because the “same people handle remedy that do accused acts.” Id. at 6.
3

The evidence includes the depositions, documents, electronically stored
information, stipulations, answers to interrogatories, admissions, and
affidavits. Fed. R. Civ. P. 56(c).
5

under the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although
“the court is required to . . . give [the nonmoving] party the benefit of all
reasonable inferences to be drawn from the underlying facts,” Vette Co. v.
Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980), the nonmoving
party may not “rest upon mere denials or allegations.” Forrest v. Kraft Foods,
Inc., 285 F.3d 688, 691 (8th Cir. 2002). Instead, the nonmoving party must
“set forth specific facts sufficient to raise a genuine issue for trial.” Id.
Prisoners who proceed pro se are entitled to the benefit of liberal
construction at the pleading stage. Quam v. Minnehaha Cnty. Jail, 821 F.2d
522, 522 (8th Cir. 1987). Nonetheless, the summary judgment standard set
forth in Rule 56 of the Federal Rules of Civil Procedure remains applicable to
prisoners proceeding pro se. Id. The district court is not required to “plumb
the record in order to find a genuine issue of material fact.” Barge v. AnheuserBusch, Inc., 87 F.3d 256, 260 (8th Cir. 1996). Moreover, the court is not
“required to speculate on which portion of the record the nonmoving party
relies, nor is it obligated to wade through and search the entire record for
some specific facts that might support the nonmoving party’s claim.” Id.
Courts must remain sensitive, however, “to the special problems faced by
prisoners attempting to proceed pro se in vindicating their constitutional
rights, and [the Eighth Circuit does] not approve summary dismissal of such
6

pro se claims without regard for these special problems.” Nickens v. White, 622
F.2d 967, 971 (8th Cir. 1980).
DISCUSSION
Defendants assert that Harp’s remaining claims must be dismissed for
failure to exhaust administrative remedies. Docket 43. With regard to Harp’s
claim related to alleged threats and abuse, defendants assert that Harp has
admitted that he failed to exhaust administrative remedies; and with regard to
Harp’s claim related to defendants’ alleged indifference toward Harp’s serious
medical needs, defendants assert that Harp’s subjective belief that pursuing
administrative remedies would be futile does not excuse him from fulfilling the
requirement that prisoners must exhaust administrative remedies before filing
a lawsuit. Docket 45. Accordingly, defendants assert that they are entitled to
summary judgment as a matter of law. Id. Harp objects to defendants’
assertion that he failed to exhaust administrative remedies prior to filing this
lawsuit, and insists that his attempts were ignored by defendants. Docket 49.
I.

Prisoners Must Exhaust Administrative Remedies Before Filing a
Lawsuit.
Under the Prison Litigation Reform Act (PLRA), “[n]o action shall be

brought with respect to prison conditions under section 1983 . . . by a
prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
Therefore, so long as prison officials are not preventing an inmate from
7

exhausting administrative remedies, Lyon v. Vande Krol, 305 F.3d 806, 808
(8th Cir. 2002), an inmate must exhaust administrative remedies prior to filing
a lawsuit, Booth v. Churner, 532 U.S. 731, 739 (2001). The purpose of the
exhaustion requirement is to afford corrections officials the opportunity to
address inmate complaints internally before such matters are litigated. “In
some instances, corrective action taken in response to an inmate’s grievance
might improve prison administration and satisfy the inmate, thereby obviating
the need for litigation.” Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003).
To satisfy the PLRA’s exhaustion requirement, prisoners must
complete the administrative review process in accordance with the
applicable procedural rules–rules that are defined not by the
PLRA, but by the prison grievance process itself. Compliance with
the prison grievance procedures, therefore, is all that is required
by the PLRA to “properly exhaust.” The level of detail necessary in
a grievance to comply with grievance procedures will vary from
system to system and claim to claim, but it is the prison’s
requirements, and not the PLRA, that define the boundaries of
proper exhaustion.
Jones v. Bock, 549 U.S. 199, 218 (2007).
As established in detail above, the South Dakota DOC requires that,
prior to filing a lawsuit, an inmate must follow a two-step process. Docket 44
at ¶ 11; Docket 46 at ¶ 5; Docket 49 at ¶ 11. “First, the inmate must file an
Informal Resolution Request.” Docket 44 at ¶ 11; Docket 46 at ¶ 5; Docket 49
at ¶ 11. “Second, if the issue is not resolved, the inmate must, within five days
of the Informal Resolution Request response, file a Request for Administrative

8

Remedy.” Docket 44 at ¶ 11; Docket 46 at ¶ 5; Docket 49 at ¶ 11. MDSP and
SDSP follow this grievance procedure. Docket 44 at ¶ 11; Docket 49 at ¶ 11.
A.

Harp has not demonstrated that he exhausted administrative
remedies prior to claiming herein that defendants threatened
and assaulted him while he was incarcerated at MDSP.

In his original complaint, Harp asserted that he did not appeal his
request for administrative relief with regard to the accusation that defendants
threatened and assaulted him. Docket 7 at 4. According to Harp, he did not do
so because he was “refused process.”4 Id. In his response to defendants’
motion for summary judgment, however, Harp admits that he “filed an
Informal Resolution Request on each issue raised herein except the issue of the
beating and threats by staff at the Mike Durfee State Prison as previously
stated.” Docket 49 at ¶ 12 (emphasis added).
The PLRA requires that prisoners comply with prison grievance
procedures prior to filing a lawsuit. Jones, 549 U.S. at 218. The prison
grievance procedure at both MDSP and SDSP, according to the SDDOC,
involves a two-step process and requires that a prisoner file an informal

4

In his amended complaint, Harp asserted that he submitted both an
Informal Resolution Request and an Administrative Remedy Request, but “both
were ignored by Unit Staff.” Docket 36 at 3. The court, however, did not grant
Harp permission to amend his complaint in this manner. Docket 34. Harp was
only granted permission to amend his complaint to add a defendant, and he
was expressly denied permission to add additional claims. Id. The court
therefore will not consider information contained in Harp’s amended complaint
that addresses the exhaustion of administrative remedies.
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resolution request prior to seeking an administrative remedy. Docket 44 at
¶ 11; Docket 46 at ¶ 5; Docket 49 at ¶ 11. By Harp’s own admission, he did
not file an informal resolution request with regard to his allegation that
defendants threatened and assaulted him.5 The court therefore finds that Harp
did not exhaust administrative remedies with regard to this claim prior to
filing this lawsuit. See Johnson, 340 F.3d at 627 (“Under the plain language of
section 1997e(a), an inmate must exhaust administrative remedies before
filing suit in federal court.” (emphasis in original)). In accordance with the
PLRA and applicable case law, defendants are entitled to summary judgment
as a matter of law.
B.

Harp exhausted all available administrative remedies prior to
claiming herein that defendants acted with deliberate
indifference toward his serious medical needs.

In his original complaint, Harp asserted that he did not submit a
request for administrative relief with regard to defendants’ deliberate
indifference toward his serious medical needs. Docket 7 at 6. According to
Harp, he did not do so because the “same people handle remedy that do

5

This admission is not inconsistent with Harp’s original complaint.
Docket 7 at 4. The form with which Harp submitted his original complaint only
inquires about whether the prisoner submitted a request for administrative
relief, which is the second phase of the two-step grievance procedure used at
MDSP. Id.; Docket 44 at ¶ 11; Docket 46 at ¶ 5; Docket 49 at ¶ 11.
10

accused acts.”6 Id. In his response to defendants’ motion for summary
judgment, however, Harp objected to defendants’ assertion that he failed to
exhaust administrative remedies. Docket 49 at ¶ 12. Instead, Harp insisted
that he did, in fact, file an Informal Resolution Request and Administrative
Remedy, but that both attempts were ignored. Id.
Resolving all disputes in favor of the nonmoving party, the court finds
that Harp satisfied the PLRA’s exhaustion requirement. The Eighth Circuit has
held that “a remedy that prison officials prevent a prisoner from utilizing is not
an ‘available’ remedy under § 1997e(a).” Miller v. Norris, 247 F.3d 736, 740
(8th Cir. 2001). If Harp’s attempts at filing informal resolution requests and
administrative remedy requests were, in fact, ignored by defendants, then
those remedies were not actually available to Harp for purposes of exhaustion.
Although Harp’s only evidence of these alleged requests are his own
statements to that effect, the court finds such evidence is sufficient to raise a
genuine issue of material fact under the circumstances.7 See Nickens, 622

6

In his amended complaint, Harp asserted that he submitted both an
Informal Resolution Request and an Administrative Remedy Request, but both
were ignored. Docket 36 at 5. Again, because Harp did not receive permission
to amend his complaint in this manner, the court will not consider information
contained in Harp’s amended complaint that addresses the exhaustion of
administrative remedies.
7

Assuming that Harp submitted informal and administrative requests
that were eventually misplaced or ignored by prison officials, the court
concludes that such documents would be unavailable for use as evidence in
support of Harp’s assertion that he exhausted administrative remedies. Given
11

F.2d at 971 (stating that “courts must be sensitive to the special problems
faced by prisoners attempting to proceed pro se in vindicating their
constitutional rights, and [the Eighth Circuit does] not approve summary
dismissal of such pro se claims without regard for these special problems.”).
Accordingly, defendants are not entitled to summary judgment on this claim.
II.

Harp’s Motion to Appoint Counsel Is Denied.
“A pro se litigant has no statutory or constitutional right to have counsel

appointed in a civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir.
1998). In determining whether to appoint counsel to a pro se litigant’s civil
case, the district court considers the complexity of the case, the ability of the
indigent litigant to investigate the facts, the existence of conflicting testimony,
and the indigent's ability to present his claim. Id. In this case, the facts and
the law applicable to Harp’s remaining claim are not complex. Harp appears
able to adequately present his remaining § 1983 claim, and his Motion to
Appoint Counsel (Docket 51) is therefore denied.
CONCLUSION
Because Harp did not exhaust administrative remedies with regard to
his claim that officials at MDSP threatened and assaulted him, defendants are
entitled to summary judgment on that claim. With regard to Harp’s claim that

his limited access to resources at either MDSP or SDSP, the court also
assumes that Harp did not have the opportunity or ability to make copies of
each of his informal and administrative requests prior to submitting the same.
12

defendants acted with deliberate indifference toward his serious medical
needs, however, the court finds that a question of fact exists as to whether he
did exhaust all available administrative remedies prior to filing the lawsuit in
question. Consequently, defendants are not entitled to summary judgment on
that claim.
Accordingly, it is
ORDERED that defendants’ motion for summary judgment (Docket 43)
is granted in part and denied in part.
IT IS FURTHER ORDERED that defendants are entitled to summary
judgment in their favor on Harp’s claim regarding alleged threats and
assaults.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel (Docket 51) is denied.
Dated January 31, 2013.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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