Johnson v. Weber et al

Filing 82

MEMORANDUM OPINION AND ORDER granting 35 Motion for Summary Judgment as to Plaintiffs' federal claim brought pursuant to 42 USC 1983; granting in part and denying in part 42 Motion to Exclude; denying 60 Motion to Strike; granting 67 Mo tion for Leave to file supplemental materials in opposition to Defendants' motion for summary judgment to the extent that the Court will consider admissible information that is based on personal knowledge; granting 77 Motion for Leave to supplement the record to alleviate Defendants' objection to Timothy Henry's interview. THE STATE LAW CLAIMS IN PLAINTIFFS' COMPLAINT ARE REMANDED TO STATE COURT. Signed by U.S. District Judge Lawrence L. Piersol on 5/15/14. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

FILED

MAY 15 2014

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ESTATE OF RONALD E. JOHNSON,
CIV 12-4084
and through its Personal Representative,
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Lynette K. Johnson; and
LYNETTE K. JOHNSON, individually,
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Plaintiffs,
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vs.
MEMORANDUM OPINION
AND ORDER
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DOUGLAS WEBER;
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TROY PRONTO;
DARIN YOUNG;
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CRYSTAL VANVOOREN;
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DENNY KAEMINGK;
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LAURIE FEILER;
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TIMOTHY A. REISCH;
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SOUTH DAKOTA DEPARTMENT
OF CORRECTIONS, STATE OF
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SOUTH DAKOTA;
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and JOHN DOES 1-20,
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Defendants.
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This case arises from the death of Ronald E. Johnson, a correctional officer who worked for
the South Dakota Department of Corrections at the South Dakota State Penitentiary (SDSP) for
years. On April 12, 2011, Ronald Johnson was at work when he was brutally murdered by inmates
Rodney Berget and Eric Robert. Plaintiffs Lynette Johnson and the Estate of Ronald Johnson
(Plaintiffs) filed a complaint in state court pleading five state law claims and one federal
consti tutional claim under 42 U. S. C. § 1983 alleging that Defendants created the danger that resulted
in the death ofRonald Johnson. Defendants removed the case to federal court pursuant to 28 U.S.c.
§ 1441(a). This Court has jurisdiction under 28 U.S.C. § 1331 because the complaint includes a

federal constitutional law claim. The Court may exercise supplemental jurisdiction over the state­
law claims under 28 U.S.C. § 1367.

Defendants filed a motion for summary judgment arguing that they are entitled to qualified
immunity because the evidence does not meet the high standard required to prove a state-created
danger claim. The brutal murder of guard Ronald Johnson by Berget and Robert shocks everyone's
conscience. That, however, is not the test for whether there was a constitutional violation by Warden
Weber and other Defendant South Dakota State Penitentiary employees. Likewise, this is not a
question of whether Warden Weber and others were negligent or grossly negligent, as those levels
of proof do not meet the high burden necessary for finding a constitutional violation. Instead, the
question is primarily whether the actions and inactions of Warden Weber or any of the other prison
employee Defendants shock the conscience. The actions of Warden Weber and the other employees
do not shock the conscience, and for that and the following reasons Defendants are entitled to
summary judgment on the constitutional violation claim.' The remaining five state law claims will
be remanded for further proceedings to the South Dakota trial court from which they were removed.

BACKGROUND
In ruling on a motion for summary judgment, the Court is required to view the facts in the
light most favorable to the non-moving party and must give that party the benefit of all reasonable
inferences to be drawn from the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734
(8th Cir. 1987). The facts below are presented in the light most favorable to the Plaintiffs in this
case.

As part of an escape attempt, inmates Eric Robert and Rodney Berget murdered Ronald
Johnson on April 12, 2011, in the Prison Industries building (PI building) at the SDSP in Sioux Falls,

'The Court will deny Defendants' motion to strike the affidavit of Chester Buie and the interview
ofTimothy Henry, doc. 60, and the Court will consider Buie and Henry's affidavits. In addition, the
Court will grant Plaintiffs' motion for leave to supplement the materials in response to the motion
for summary judgment, doc. 67, and the Court will consider admissible information that is based on
personal knowledge in the affidavits of Andrew Hanson and David Tolley.
2

near Johnson's post that day.2 Johnson was a senior correctional officer and was staffing the PI
building in place of Officer Craig Baumberger, who was out that day. Johnson and eight shop
supervisors were assigned to the PI building.

The Jameson Annex is the only South Dakota Department of Corrections (DOC) facility
designated to house maximum custody inmates. On April 12, 2011, the SDSP housed mostly
medium custody inmates. On that day, Berget and Robert were maximum custody inmates that,
pursuant to DOC policy, were to be housed in the Jameson Annex absent a discretionary
"administrative decision" or other similar process that allows them to be housed elsewhere. 3 The
DOC's classification policy provides, in part, that, in the Warden's discretion, an inmate may be
housed in a facility other than where his custody level suggests. Such a placement requires approval
of the deputy warden or an associate warden, the warden, and the Classification and Transfer
manager for the DOC. The Defendants moved Berget and Robert out ofthe Jameson Annex and into
West Hall at the SDSP, a facility with lower levels of custody and supervision. Berget was moved
to West Hall in June of 2004. Robert was moved there in June of 2009. The "administrative
decision" paperwork process was not followed and Defendants did not properly document the
transfers or the reasons for transferring Berget and Robert out ofthe Jameson Annex. Berget resided
outside of the Jameson Annex for half of 2004 without any written authorization. Warden Weber
testified that DOC policy forbids making deals with inmates, and that he was obligated to comply
with DOC policy. Although Warden Weber denies it, the testimony of some other witnesses

2In 2011, two state or federal correctional officers were killed in the line of duty. Before
Johnson's murder, the last time that a correctional officer was killed in the line of duty in South
Dakota was on September 6, 1951, when a correctional officer was murdered by an inmate.
3In May, 2011, there were 677 inmates housed in general population at the SDSP. Of that
number, 456 were incarcerated for a violent offense, and 203 had escape points counted on their
classifications. There were 47 maximum custody inmates housed at the SDSP, outside of the
Jameson Annex. In a subsequent Technical Assistance Report requested by the DOC and submitted
by the National Institute of Corrections on September 21, 2011, it was reported that there was
sufficient vacant bed space at Jameson to absorb the maximum custody inmates that were being
housed at the SDSP.

3

indicates that Warden Weber made deals to move Robert and Berget into West Hall in exchange for
ending their hunger strikes. 4

On April 12, 2011, both Berget and Robert were living in West Hall at the SDSP, although
not in the same cell. According to DOC policy, inmates in the Jameson Annex are subject to direct
correctional supervision while inmates in West Hall are not. Witnesses testified that Berget and
Robert were not subject to direct correctional supervision while in West Hall.

The Defendants knew the violent criminal histories of Berget and Robert. Berget's criminal
history includes a conviction for grand theft in 1977, when he was first incarcerated at the SDSP at
the age of 15. His criminal history after 1977 included convictions for grand theft, burglary, escape,
kidnapping, and attempted first degree murder. As of April 12, 2011, Berget was serving a life
sentence for the attempted murder conviction, and a second life sentence for the kidnapping. 5 When
Berget arrived at the SDSP on December 4,2003, he was housed at the Jameson Annex until his
transfer to West Hall in June of2004. Berget's West Hall housing was continued by Acting Warden,
Daryl Slykhuis, in February, 2005, and renewed again in December, 2005, without all ofthe required
signatures on the form. Berget's placement in West Hall was reviewed and confirmed again in
December of the following years, up to and including December, 2010. The proper paperwork was
not always completed.

4Although the Court makes no credibility determination ofwho to believe on that point, the Court
for purposes of this motion is required to take the view most favorable to the non-moving party.
Since the Plaintiffs are the non-moving party on this motion, the Court for purposes ofthe motion
must consider that hunger strike deals were made.
5These convictions resulted from Berget shooting his ex-girlfriend and her friend, then kidnapping
a store clerk at gun point on June 2,2003.
4

Robert was convicted of kidnapping in January, 2006. 6 He was sentenced in Meade County
to a term of 80 years in prison. He had no previous criminal history. Shortly after Robert arrived
at the SDSP in January, 2006, he was housed in West Hall because he was not a maximum custody
inmate. After his arrival, penitentiary officials learned that a woman in Brule County had been raped
by Robert in 2002 or 2003, and she had obtained a protection order against Robert. She had been
in a relationship with Robert and she did not report the rape at the time it occurred. At Robert's
annual classification review on January 8, 2007, his recommended placement was at the SDSP. On
September 5, 2007, after he was written up for tampering with a lock, Robert's placement was
changed to Jameson and this was renewed in April of2008 and 2009. He was moved back to West
hall on June 24, 2009. That placement was continued by "administrative decision" in April, 2010.

Defendants knew about Berget and Robert's escape histories. In 1984, Berget escaped from
the SDSP, for which he was prosecuted and convicted. In 1987, Berget escaped from the SDSP
through an air handling unit, for which he was prosecuted and convicted. In 1988, Berget jumped
out ofa van during a transport. In June, 1991, Berget was disciplined because of his involvement
in a proposed escape that was discovered before it was attempted involving some steel mesh over
windows in the cell hall that had been cut. In 1994, Berget was disciplined for cutting security bars
in the East Hall shower room. In December, 2003, Berget was involved in helping another inmate
try to escape from the Lawrence County jail by lifting him over a wall. He was not charged with a

crime, but the activity was scored by the DOC as an escape attempt in his classification reviews.
Although some witnesses testified that Berget may have been involved with Robert in planning an
escape in 2007, there is no evidence that any of the Defendants were aware of his possible
involvement, and there are no documented escape attempts for Berget between December 4, 2003
and April 12, 2011. There is some evidence, however, that Berget might have been planning escape
attempts. Former inmate Tim Henry indicated that in late 2009 he reported to a DOC employee that
Berget and Robert were planning to escape from the penitentiary. Berget's cell was searched in

60n July 24, 2005, Robert impersonated a law enforcement officer and pulled over a woman on
a road near Black Hawk, South Dakota. He forced her into the trunk of her vehicle. The woman
called authorities with her cell phone and was rescued.

5

August, 2010, and officers discovered a box cutter razor blade, an ex acto knife razor blade, and drill
bits.

He was cited for possessing unauthorized articles, and he was placed in disciplinary

segregation. Except for what happened on April 12,2011, Berget's escapes or attempts did not
involve violence.

Robert was disciplined for attempted escape in June, 2007. A confidential informant told
authorities that Robert cut part of a lock in the West Hall shower room at the SDSP. At the time,
Robert was working as an orderly in the shower room. As stated earlier, there is some testimony
indicating that Berget may have been involved. Robert was given 90 days in disciplinary segregation
in the Jameson Annex, and he continued to reside in Jameson until 2009 when he was moved back
to West Hall. Robert had no other escape attempts and no escapes in his institutional or criminal
history.

As for job assignments, Berget regularly held orderly positions. There are no documented
problems with Berget's job assignments before April 12, 2011. Former correctional officer Chester
Buie opined in his affidavit that Berget used his jobs to give him the ability to have periods of time
where he could move about the penitentiary, unobserved, possibly planning escapes. 7 Berget's job
on April 12 was trash recycling orderly, a job he started on March 18, 2011. In that position, Berget
would leave and return to West Hall multiple times per day.

Robert was working as a laundry cart pusher on April 12, 2011. He was assigned his job as
a laundry cart pusher on December 14,2009. This involved making round trips each day with a
laundry cart between West Hall and the laundry, located in the PI building, which is outside and
across the yard, but within the secure perimeter of the SDSP. The round trip typically occurred six
times each weekday morning and 10-12 times each weekday afternoon. Correctional officer, Brad
Woodward, testified that Robert wanted to work in the shop in the PI Building, but he was not
allowed to work there because he had seven escape points for his attempted escape in June, 2007

7Buie went to work as a correctional officer at the SDSP in 1980 and continued to be employed
there until his retirement in January of2011.
6

when he cut a lock in the shower room. An inmate with seven escape points is not allowed to work
in one ofthe Prison Industries' shops.

According to his affidavit, in late summer or early fall of 20 10, Buie heard that Berget and
Robert's names came up all the time during senior staff meetings with Warden Weber. On separate
occasions, he asked Warden Weber and unit manager Brad Woodward when they were going to lock
up Berget and Robert. He got no response. Officer Buie kept an eye on Berget and Robert and
noticed that they were routinely together by September of2010.

On April 12,2011, Berget and Robert left West Hall for the PI building. The usual work day
for inmates was from about 7:00 a.m. until 3:45 p.m, with a break for lunch and a break for a
standing count. Dennis Donovan, the laundry supervisor, wrote in an informational report on April
18, 2011, that Robert was in and out of the laundry four or five times before 9:40 a.m. on April 12,
2011. Sometime after 10:00 a.m. Berget and Robert attacked Ronald Johnson. They assaulted him,
took part of his uniform, wrapped his head in shrink wrap, and tried to cover his body with
cardboard. Robert put on part of Johnson's uniform and Berget hid himself in a large box that
Robert then pushed on a hand cart to the West Gate, a service entrance to the SDSP, where they were
apprehended after a correctional officer refused to open the outside gate.

After the murder and escape attempt, Robert was charged with first degree murder, first
degree felony murder, and simple assault, and was also arraigned on an information for being a
habitual offender. He pleaded guilty to the charge offirst degree murder and was sentenced to death.
He was executed on October 15,2012. Berget was charged with and pleaded guilty to first-degree
murder and was sentenced to death. He remains incarcerated on death row.

DISCUSSION
The doctrine of qualified immunity shields government officials from liability so long "as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "Qualified

7

immunity is an immunity from suit rather than a mere defense to liability, which is effectively lost
if a case is erroneously permitted to go to trial." Avalos v. City ofGlenwood, 382 F.3d 792, 798 (8th
Cir. 2004) (citations and internal quotations omitted). "Qualified immunity is available 'to all but
the plainly incompetent or those who knowingly violate the law. '" Id. (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986)). "Officials are not liable for bad guesses in gray areas; they are liable for
transgressing bright lines." Id. (citation omitted).

The initial inquiry in the qualified immunity analysis is this threshold question: "Taken in
the light most favorable to the party asserting the injury, do the facts alleged show the officer's
conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194,201 (2001). If the facts
alleged demonstrate a constitutional violation, the second inquiry "is to ask whether the right was
clearly established"; that is, "whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted." Id. at 201-02. Third, the Court must determine if, taking
the facts in the light most favorable to the Plaintiff, "there are no genuine issues of material fact as
to whether a reasonable official would have known that the alleged actions violated that right."

Foulks v. Cole County, 991 F.2d 454, 456 (8th Cir. 1993).

The first question for this Court is whether the facts alleged by Plaintiffs demonstrate a
constitutional violation. Plaintiffs' § 1983 claim is based on the substantive component of the Due
Process Clause that protects individual liberty against certain government actions. Plaintiffs claim
that Defendants' conduct deprived Ronald Johnson of substantive due process by affirmatively
creating the danger that brought about his death. The Fourteenth Amendment states in part: "nor
shall any State deprive any person of life, liberty, or property, without due process of law." U.S.
Const. amend. XIV; see also DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189,
194-95 (1989). The Supreme Court has noted, "nothing in the language of the Due Process Clause
itself requires the State to protect the life, liberty, and property of its citizens against invasion by
private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee
of certain minimal levels of safety and security." DeShaney, 489 U.S. at 195. Thus, "the Due
Process Clauses generally confer no affirmative right to governmental aid, even where such aid may

8

be necessary to secure life, liberty, or property interests of which the government itself may not
deprive the individual." Id. at 196.

Generally, state actors are liable under the Due Process Clause only for their own acts and
not for the violent acts of third parties, see Fields v. Abbott, 652 F.3d 886,890 (8th Cir. 2011), but
the Eighth Circuit has recognized two exceptions to this rule: (1) the state owes a duty to protect
those in its custody; and (2) "the state owes a duty to protect individuals if it created the danger to
which the individuals are subjected." Id. This second exception is called the state-created danger
theory. Id. Plaintiffs' constitutional claim in this case rests on the danger creation theory. The
state-created danger doctrine derives from the Supreme Court's decision in DeShaney. In that case,
a four-year-old boy was repeatedly beaten by his father. 489 U.S. at 192-93. The county Department
of Social Services (DSS) obtained a court order to place the boy in the temporary custody of a local
hospital, but it returned him to his father's custody after deciding there was insufficient evidence of
abuse. Id. at 192. Despite signs ofcontinuing abuse when DSS would check on the boy each month,
DSS failed to take any action to protect him. Id. at 192-93. Finally, the father beat the boy so
severely that he suffered severe brain damage. Id. at 193.

The boy and his mother sued DSS and several of its employees under § 1983, alleging that
they violated the boy's rights under the Due Process Clause by failing to protect him against a risk
of which they knew or should have known. Id. The Supreme Court rejected the claim, stating, "[a]s
a general matter, ... we conclude that a State's failure to protect an individual against private violence
simply does not constitute a violation of the Due Process Clause." Id. at 197. The Court
acknowledged that in limited contexts, such as "incarceration, institutionalization, or other similar
restraint of personal liberty," a "special relationship" between the state and the individual imposes
on the state an affirmative duty to protect, but found that such a relationship did not exist between
the boy and the state because the harm occurred while the boy was in his father's custody and not
while he was in the state's custody. Id. at 200-03.

9

The Supreme Court further explained that the state could not be held liable because it had
not, by its actions, placed the boy in a more dangerous position:
While the State may have been aware of the dangers that Joshua faced in the free
world, it played no part in their creation, nor did it do anything to render him any
more vulnerable to them. That the State once took temporary custody of Joshua does
not alter the analysis, for when it returned him to his father's custody, it placed him
in no worse position than that in which he would have been had it not acted at all; the
State does not become the permanent guarantor of an individual's safety by having
once offered him shelter.

Id. at 201. Lower courts, including the Eighth Circuit, have relied on this language to recognize a
"state-created danger" exception that creates a duty to protect against private violence in limited
circumstances.

The Eighth Circuit has explained that to succeed on the state-created danger theory of
substantive due process, Plaintiffs must prove: (1) that Ronald Johnson was a member of a limited,
precisely definable group, (2) that the defendants' conduct put him at a significant risk of serious,
immediate, and proximate harm, (3) that the risk was obvious or known to the defendants, (4) that
the defendants acted recklessly in conscious disregard of the risk, and (5) that in total, the
defendants' conduct shocks the conscience. Fields, 652 F.3d at 891 (internal quotations and citation
omitted).

In many state-created danger cases, as in the Eighth Circuit's decision in Fields, the courts
focus on whether the defendant's conduct shocks the conscience, and the cases demonstrate that the
mental state required to violate a substantive right is a critical issue for all plaintiffs asserting a state­
created danger claim. Whether conduct is conscious shocking is a question of law for the court. See

Terrell v. Larson, 396 F.3d 975, 981 (8th Cir. 2005) (en banc) ("Because the conscience-shocking
standard is intended to limit substantive due process liability, it is an issue of law for the judge, not
a question of fact for the jury.").

10

In Fields, the Eighth Circuit held the state did not have a due process duty to protect ajailer
from attack by two inmates. The Eighth Circuit assumed that the plaintiff could satisfy the first four
elements of the state-created danger test, but found her claim failed because the evidence did not
show the defendants engaged in conscience shocking, deliberately indifferent conduct. The Eighth
Circuit in Fields discussed "the constitutional concept of conscience shocking:"
"[T]he constitutional concept of conscience shocking duplicates no traditional
category of common-law fault." Lewis, 523 U.S. at 848, 118 S.Ct. 1708.
"[ A ]ctionable substantive due process claims involve a level of abuse of power so
brutal and offensive that they do not comport with traditional ideas of fair play and
decency." Hart, 432 F.3d at 806 (brackets, ellipses, and internal quotation marks
omitted). Under the state-created-danger theory, negligence and gross negligence
cannot support a § 1983 claim alleging a violation of substantive due process rights.
Id. at 805. And "[p ]roof ofintent to harm is usually required, but in some cases, proof
of deliberate indifference, an intermediate level of culpability, will satisfy this
substantive due process threshold." Terrell v. Larson, 396 F.3d 975, 978 (8th Cir.
2005).
The deliberate-indifference standard is employed only where actual
deliberation is practicable. Lewis, 523 U.S. at 851-53, 118 S.Ct. 1708 (differentiating
between substantive due process cases in which the deliberate-indifference standard
applies because prison officials have the luxury oftime to make unhurriedjudgments
regarding inmate welfare, and cases where a higher standard of intent to harm applies
because certain unforseen circumstances demand instant judgment). In this case, the
Miller County individual defendants acted under circumstances in which actual
deliberation was arguably practicable because ofFields's allegations that (1) they had
been made aware, based on her previous injuries from the same drunk-tank door, that
the door was dangerous, and (2) they were previously informed that the jail was
understaffed. See Hart, 432 F.3d at 806 (applying the deliberate-indifference
standard). We will thus apply that standard here.
To define deliberate indifference in a substantive due process case, the
Supreme Court has adopted the subjective standard ofcriminal recklessness set forth
in the Eighth Amendment context. Moore ex reI. Moore v. Briggs, 381 F.3d 771, 773
(8th Cir. 2004). Deliberate indifference requires that an official must be "aware of
facts from which the inference could be drawn that a substantial risk ofserious harm
exists, and he must also draw the inference." Hart, 432 F.3d at 806 (internal
quotation marks omitted). And deliberate indifference that shocks the conscience in
one environment "may not be so patently egregious in another, and our concern with
preserving the constitutional proportions of substantive due process demands an
exact analysis of circumstances before any abuse of power is condemned as
conscience shocking." Lewis, 523 U.S. at 850, 118 S.Ct. 1708.

11

Fields, 652 F.3d at 891-92.

The parties agree that Defendants in the present case had time to deliberate and that
Plaintiffs' task is to show deliberate indifference because Defendants did not need to make any quick
decisions that merit applying a higher standard. 8 As stated above, deliberate indifference requires
both that the official "be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists" and that the official actually draw that inference. Hart v, City ofLittle
Rock, 432 F,3d 801, 806 (8th Cir. 2005). Mere negligence and even gross negligence are not

actionable as a constitutional violation. Id. at 805-06,

8Both parties have expert witnesses. Plaintiffs move to preclude Defendants' expert, Dr.
Hardyman, from testifying that there was no significant risk of serious and immediate harm to
Ronald Johnson. (Doc. 42.) The motion will be granted. Improper opinions such as this are stating
a legal conclusion. See Berry v. City of Detroit, 25 F.3d 1342, 1353 (6th Cir. 1994). Given her
experience and training, Dr. Hardyman could have expressed her opinion as to the level of risk of
harm to Ronald Johnson, but not couched in the language of the legal test itself, but instead in the
language normally used in her profession. These improper legal concl usions would not be admissible
at trial, so they will not be taken into account for purposes of ruling on the motion for summary
judgment. See Duluth News-Tribune v, Mesabi Publ'g Co" 84 F.3d 1093, 1098 (8th Cir. 1996) ("In
evaluating the evidence at the summary judgment stage, we consider only those responses that are
supported by admissible evidence. "). For the same reason, the Court will not consider those opinions
of Plaintiffs' expert, Jeffrey Schwartz, that state a legal conclusion. (For example, Jeffrey Schwartz
opines that Defendants' "repeated policy violations and their failures to maintain acceptable security
practices were blatant, shocking and unconscionable.") Schwartz could testify that there were
failures to maintain acceptable security practices but he would not be allowed to state an opinion that
such failures were "unconscionable," as that is a legal question for the court to determine. Plaintiffs
also move to preclude Dr. Hardyman'S opinion that Berget and Robert's housing and job
assignments were "appropriate," which Dr. Hardyman changed to "not unreasonable" in her
deposition. Because there is a close fit between Dr. Hardyman's expertise in the area ofevaluating
classification systems and data concerning prisoners' propensity to commit assaults and her
testimony that Berget and Robert's housing and job assignments were not unreasonable, the Court
will consider Dr. Hardyman'S opinion, limited to "not unreasonable" as that is how Dr. Hardyman
limited that opinion. If Dr. Hardyman continued to believe the housing and job assignments were
appropriate, given her training and experience, she could have expressed that opinion. See, e,g"
Schmidt v. City ofBella Villa, 557 F.3d 564, 571 (8th Cir. 2009) ("[F]or an expert witness to be
qualified based on experience, that experience must bear a close relationship to the expert's
opinion.").
12

Plaintiffs contend that, in order to determine whether Defendants acted with deliberate
indifference, the Court should look at Defendants' continuing course of conduct beginning in 2004
when Berget was moved into West Hall. Plaintiffs argue that Defendants' policy allowing maximum
custody inmates such as Berget and Robert to be housed outside of Jameson, the only maximum
security facility in South Dakota, in tum allowed the inmates to have jobs with less supervision than
is required of maximum custody inmates, and this created dangerous conditions at the penitentiary
which Defendants knew about and failed to rectifY over the years, ultimately depriving Ronald
Johnson and Plaintiffs of their substantive due process rights. Most of Defendants' conduct about
which Plaintiffs complain is far removed from the ultimate harm to Ronald Johnson. In a case like
this, where so much time passed between the initial decisions and the ultimate harm, the Court
believes that the immediate and proximate harm element of the Fields test ties into the analysis of
the deliberate indifference element.

The second element of the Fields test states that, in order to be actionable, a defendant's
conduct must produce a "substantial risk of serious, immediate, and proximate harm." Here, most
of Defendants' actions and decisions are too far removed in time to have put Ronald Johnson at a
significant risk of immediate and proximate harm. The Eighth Circuit's decision in Dorothy J. v.

Little Rock Sch. Dist., 7 F.3d 729 (8th CiT. 1993), is instructive on this issue. Holding that a public
school had no constitutional duty to protect a mentally retarded student who was raped in school by
a student known to be violent and sexually assaultive, the Eighth Circuit in Dorothy noted, "In most
every circuit court decision imposing § 1983 liability because the State affirmatively created or
enhanced a danger, 'the immediate threat of harm has a limited range and duration[.]''' Dorothy J.,
7 F.3d at 733 n. 4 (quoting Reed v. Gardner, 986 F.2d 1122, 1127 (7th Cir. 1993)). The Eighth
Circuit concluded that the plaintiffs injury two years after the attacker was enrolled in the school's
special program is "too remote a consequence" of the action or inaction of state officials, thus no
liability existed under § 1983. Id. at 733; see also Martinez v. California, 444 U.S. 277,285 (1980)
(decedent's murder by parolee committed five months after parolee's release "is too remote a
consequence of the parole officers' action to hold them responsible under the federal civil rights
law").

13

Also instructive on the immediate and proximate harm element is a Tenth Circuit case, Ruiz
v. McDonnell, 299 F.3d 1173 (lOth Cir. 2002).

In Ruiz, a mother enrolled her child in a

state-licensed horne daycare. The Colorado Department ofHurnan Services was required to perform
criminal background checks on day care operators and confirm operators are properly insured.
Colorado officials failed to conduct even a cursory investigation which, had they done so, would
have uncovered the operators' extensive criminal background involving domestic violence, and that
they were uninsured. The child died from abuse by the operator ofthe daycare. The mother brought
a claim under § 1983 asserting that the department's failure to uncover the operators' history of
domestic violence and lack of insurance amounted to a constitutional violation under the state
created danger theory. Ruiz, 299 F.3d at 1178. In ruling that licensing a daycare is not the requisite
affirmative conduct necessary to state a claim, and in upholding dismissal of the § 1983 claim, the
Tenth Circuit focused on the requirement that defendants' act oflicensing the daycare place the child
"at substantial risk of serious, immediate, and proximate harm." ld. at 1183. The Tenth Circuit
reasoned that the threat of harm must be of "limited range and duration," rather than generally
applicable to a broader populace. "[T]he improper licensure did not impose an immediate threat of
harm. Rather, it presented a threat of an indefinite range and duration." ld. Likewise, in the present
case, the decisions to house Berget and Robert outside of Jameson in 2004 and 2009, the renewal
ofthose decisions in the following years, and allowing the inmates to work jobs outside ofJameson,
presented a threat of an indefinite range and duration, not an immediate and proximate risk ofharrn.

The Court will consider actions taken or decisions made by Defendants closer in time to
Johnson's murder. The last act that could have constituted an immediate and proximate risk ofharm
was placing Berget in the recycling orderly job on March 18, 2011, a little over three weeks before
Berget and Robert murdered Johnson. The recycling orderly job allowed Berget to leave West Hall
regularly throughout the day, and triggered his ability to be in the PI building where Johnson was
stationed on April 12,2011. To decide ifDefendants were deliberately indifferent in placing Berget
in the recycling orderly job, the Court must determine whether Defendants were aware offacts from
which the inference could be drawn that a substantial risk of serious harm existed to correctional

14

officers, and whether Defendants actually drew that inference, when Berget was given the recycling
orderly job.

Defendants certainly were aware of Berget and Robert's criminal and escape histories when
they gave Berget the recycling orderly job, and they were aware that Berget and Robert were still
housed outside ofJ arneson. But Berget had worked as an orderly in various positions for many years
without creating a known threat of harm to anyone. Even if the Court assumed Defendants were
aware of facts from which an inference of a risk of harm could be drawn, Plaintiffs have not
advanced sufficient facts supporting a claim that Defendants inferred someone would be harmed if
Berget worked as a recycling orderly. Under an exact analysis of the circumstances in this case,
Defendants' conduct within the limited time-frame which the Court may consider is not deliberately
indifferent and that conduct does not shock the conscience. See, e.g., Martinez v. Uphoff, 265 F.3d
1130 (10th Cir. 200 I) (the state-created danger theory did not give rise to liability where prison
guard was killed by escaping inmates, ruling that under the circumstances of the case "inaction in
the face of known dangers or risks [was] not enough to satisfy the danger-creation theory'S
conscience shocking standard"). Each case regarding injury or death of a prison guard by an inmate
is fact specific. The actions ofthe murderers of Ronald Johnson shock the conscience, but those are
not the actions the Court must consider in determining whether the actions and inactions of any of
the Defendants shock the conscience.

Because there is insufficient evidence to show a violation of the Due Process Clause of the
Constitution, Defendants are entitled to qualified immunity on Plaintiffs' § 1983 claim. Summary
judgment will be granted on the § 1983 claim, and the state law claims will be remanded to state
court. See In re Prairie Island Dakota Sioux, 21 F.3d 302, 304 (8th Cir. 1994) (if case is removed
from state court and the federal claim is dismissed, court has discretion to remand the state law
claims as an alternative to dismissing without prejudice). Accordingly,

15

IT IS ORDERED:
1. That Plaintiffs' motion to exclude certain opinions of Defendants , Expert Patricia
Hardyman, doc. 42, is granted in part and denied in part as set forth in footnote 8;
2. That Defendants' motion to strike the affidavit of Chester Buie and interview of
Timothy Henry, doc. 60, is denied;
3. That Plaintiffs' motion to file supplemental materials in opposition to Defendants'
motion for summary judgment, doc. 67, is granted to the extent that the Court will
consider admissible information that is based on personal knowledge;
4. That Plaintiffs' motion to supplement the record to alleviate Defendants'
objection to Timothy Henry's interview, doc. 77, is granted.
5. That Defendants' motion for summary judgment is granted as to Plaintiffs' federal
claim brought pursuant to 42 U.S.C. § 1983; and
6. That the state law claims in Plaintiffs' complaint are remanded to state court.
Dated this

~day of May, 2014.
BY THE COURT:

K
()u/LW.t(

~wrence L. PIersol

£

D..

(fteA.~ 0,.

United States District Judge

ATTEST:

JOSEPH HAAS, ~:
BY

{)QPJ ~
PUTY

16

II