Cabrera-Asencio v. Young et al

Filing 39

OPINION AND ORDER on Cross Motions for Summary Judgment; granting in part and denying in part 30 Motion for Summary Judgment; denying 36 Motion Resisting Summary Judgment ; denying 24 Motion for Summary Judgment; denying 27 Motion to Appoint Counsel. Signed by U.S. District Judge Roberto A. Lange on 5/10/2017. (JLS)

UNITED STATES DISTRICT COURT

FILED

DISTRICT OF SOUTH DAKOTA

MAY 1 0 2017

SOUTHERN DIVISION
'CLERK

CRISTIAN CABRERA-ASENCIO,
Plaintiff,

4-16-CV-04096-RAL

vs.

DARIN YOUNG (Warden), DENNY
KAEMINGK (Secretary of Corrections),
ELIZABETH VITETTA (Coordinator
D-Unit), AL ALLCOCK (Associate
Warden), JENIFER DRIESKE (Dept
Warden),

OPINION AND ORDER
ON CROSS MOTIONS FOR
SUMMARY JUDGMENT

Defendants.

Plaintiff Cristian Cabrera-Asencio ("Cabrera-Asencio") filed this lawsuit
pursuant to 42 U.S.C. § 1983. Doc. 1. This Court screened his complaint
pursuant to 28 U.S.C. § 19ISA, dismissed it in part, and directed service.
Doc. 9. Cabrera-Asencio and defendants now move for summary judgment.
For the following reasons, Cabrera-Asencio's motion is denied, and defendants'
motion IS granted m part and denied in part.
I.

A.

FACTUAL BACKGROUND

Punishment

Cabrera-Asencio is an inmate at the South Dakota State Penitentiary
(SDSP). Doc. 1 On November 5, 2014, Cabrera-Asencio was working in the

SDSP kitchen. Doc 34-1 at 14. Both parties agree that he was speaking to his
boss in Spanish, and she ordered him to speak English. Id ; Doc. 28 at 2
Defendants allege that Cabrera-Asencio then called his bosses in the kitchen

racists; this fact was in the "Incident Details" of Cabrera-Asencio's Disciplinary
Report. Doc. 34-1 at 14. Cabrera-Asencio claims that he did not call them

racists and that they fabricated this in the report in order to punish him for
something other than speaking Spanish. Doc. 26 ^ 1. He also avers defendants
were seeking to "teach him a lesson" for speaking Spanish. Doc. 28 at 1-2.
Cabrera-Asencio was sent to the Segregated Housing Unit as
punishment. Id. at 2. He alleges that when he returned to the general
population, he was harassed and retaliated against for filing grievances based
on prison officials' alleged mistreatment of him Id. He complained more, which
led to further retaliation. Id.

On Januaiy 1, 2015, Cabrera-Asencio was again working m the SDSP

kitchen Doc 34-1 at 10. Defendants allege and the Disciplinary Report states
that Cabrera-Asencio said in Spanish to another prisoner that his boss was a
"crazy witch" and that she "can go to the shit." Id Cabrera-Asencio avers that

this is untrue and was made up to punish him in retaliation for complaining of
his mistreatment. Doc 28 at 2-3. Cabrera-Asencio was disciplined again even
though another inmate told the disciplinary hearing officer that it was he,
rather than Cabrera-Asencio, who made the offensive remark. Doc. 34-1 at 4,
7, 11. After this, Cabrera-Asencio avers that prison officials harassed him in a

number of ways, including strip searches, pat downs, drug testing, and

requesting his mother's green card during visits, which she does not have
because she is a legal citizen. Doc. 28 at 3.
B.

Employment
At the relevant time, inmates on Unit D of the Jameson Annex at SDSP

were eligible for no more than sixty jobs and there were usually about sixty
additional inmates on the waitlist for employment. Doc. 33
low turnover rate for jobs in Unit D. Id.

2-6.^ There is a

7. Inmates on the waitlist are listed m

order of their last disciplinaiy report, and if inmates are sent to the SHU, they
are removed from the list until they return to their unit Id ^ 8
Throughout the relevant period, Cabrera-Asencio was in and out of
prison jobs. See Doc. 33-1; Doc. 33-2; Doc. 33-3. Cabrera-Asencio claims that

he was paid intermittently. Doc. 37 at 3. He also avers that his coordinator told

him he could not work because he was an undocumented immigrant. Doc 28
at 4. He asserts that he was not paid and eventually lost his job because of a
misapplication of a prison policy denying paid jobs to prisoners who were
undocumented immigrants. Id. at 5.
Defendants aver that Cabrera-Asencio was removed from the waitlist

when he was sent to the SHU. Doc. 33 T| 9. The Defendants say that CabreraAsencio was placed back into his SDSP kitchen job by accident, but was

removed before he working there because he did not have the necessary
training. Id. 12. Defendants also aver they later discovered that Cabrera|

1 This information comes from the Affidavit of Elizabeth Vitetta, which discusses Unit D
presumably because that is where Cabrera-Asencio was incarcerated at the time This Court
presumes the job availability is similar for all inmates in the Jameson Annex

Asencio did not have a valid Social Security number ("SSN"), a requirement to
work at SDSP. Id. ^ 13 Cabrera-Asencio avers that he never had a SSN and
that SDSP staff was aware of this fact the entire time he was incarcerated at

SDSP. Doc. 37 t 15.
II.

PROCEDURAL BACKGROUND

On July 1, 2016, Cabrera-Asencio filed this complaint. Doc. 1 He alleged
that defendants violated his rights under the Equal Protection Clause, the First
Amendment, and the Eighth Amendment Id. at 5-7. This Court screened
Cabrera-Asencio's complaint under 28 U S.C. 1915A, dismissed CabreraAsencio's claim under the Eighth Amendment, and directed service of the
remainder of the complaint Doc. 9.

On January 11, 2017, Cabrera-Asencio moved for summary judgment.
Doc. 24, and filed two affidavits supporting his motion. Doc. 26, 28. On
January 20, 2017, defendants moved for summary judgment Doc. 30. In
support of their motion, defendants filed the affidavits of Elizabeth Vitetta, a

correctional officer at SDSP, Doc. 33, and Jennifer Dreiske, the deputy warden
at SDSP. Doc. 34. Cabrera-Asencio also moves this Court to appoint him
counsel. Doc 27.
III.

LEGAL STANDARD

Summary judgment is appropriate if the movant "shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law." Fed. R. Civ. P. 56(a). The moving party can meet this

burden by presenting evidence that there is no dispute of material fact or by

showing that the nonmoving party has not presented evidence to support an

element of its case oh which it bears the ultimate burden of proof. Celotex Corp.
V. Catrett, 477 U.S. 317, 322-23 (1986).

"A party opposing a properly supported motion for summary judgment
may not rest on mere allegations or denials, but must set forth specific facts in
the record showing that there is a genuine issue for trial." Denn v. CSL Plasma,

Inc., 816 F.3d 1027, 1032 (8th Cir. 2016)(citing Anderson, v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986)). For purposes of summary judgment, the facts,

and inferences drawn from those facts, are "viewed in the light most favorable
to the party opposing the motion." Matsushita Elec. Indus. Co v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)(quoting United States v. Diebold, Inc, 369 U.S.
654, 655 (1962)).
IV.

DISCUSSION

Two of the claims in Cabrera-Asencio's complaint survived screening
under 28 U S C § 1915A: a claim under the Equal Protection Clause and a
claim under the First Amendment. Cabrera-Asencio and defendants now move

for summary judgment on both claims. The Court will discuss both motions as
they apply to each claim.
A.

Equal Protection

Cabrera-Asencio moves for summary judgment on his claim that

defendants violated his rights under the Equal Protection Clause by denying
him work and denying him wages when he was allowed to work Doc. 25 at 6.

Defendants argue they are entitled to summary judgment based on qualified

immunity because there was a rational basis for the policy. Doc. 31 at 5. In its
screening order, this Court stated that the policy of not paying undocumented
immigrant prisoners will be upheld if defendants show a rational basis for the
policy See Doc. 9 at 5.

Defendants are entitled to summary judgment on Cabrera-Asencio's

claim that he was not paid for his work. The payroll charts provided by
defendants show that Cabrera-Asencio was paid when he had a job. See Doc.
33-1, 33-2, 33.3. Vitetta verified that Cabrera-Asencio would have been paid
the same as other inmates who had similar jobs while she was Coordinator of
his unit. Doc. 33 Tf 14. Cabrera-Asencio does not contest this evidence.

Therefore, defendants' motion for summary judgment is granted as to this
claim, and Cabrera-Asencio's motion for summary judgment is denied on this
claim.

Cabrera-Asencio also claims that he was not allowed to work because he

is an undocumented immigrant. Defendants provided a rational basis for this
policy complying with federal law by reporting income and withholdmgs for
Social Security. Doc. 31 at 6. Under South Dakota Department of Corrections

("SD DOC") policy 1.1 A 7, all inmates must have a valid social security
number to be paid wages. Doc. 25-1 at 16. If the given SSN is found to be

invalid, the inmate may not work or receive a wage until he provides a valid
SSN. Id. at 17. The policy states that SD DOC is required to submit a report to
the IRS containing the names and SSNs of all inmates who earn wages Id. This
policy IS repeated m I.5.A.1. Id. at 18.

Cabrera-Asencio argues that this policy does not apply to jobs at the
prison that pay 25<t: per hour. Doc. 37 at 3-5. He claims that defendants are
not required to report these earnings to the IRS. Id. Cabrera-Asencio's
assertions are contrary to the actual policy, and he provides no evidence to
support his assertion Cabrera-Asencio also argues that defendants are

misapplying the SD DOC rules in requiring an SSN and taking other actions.
Doc. 28 at 5. Cabrera-Asencio's suggestion that defendants are liable for

violating SD DOC policy does not preclude summary judgment because "there
IS no § 1983 liability for violating prison policy." Gardner v. Howard, 109 F.3d

427, 430 (8th Cir. 1997); see also Moore v. Rowley, 126 F. App'x 759 (8th Cir
2005)

This Court, however, stops short of granting summary judgment at this
time for the Defendants on Cabrera-Asencio's claim that he was not allowed to

work because he is an undocumented immigrant Defendants did not cite to
any policy provision in their argument but relied on the affidavit of Elizabeth
Vitetta. Vitetta, however, merely avers that she has "learned that Cabrera-

Asencio was allowed to work in 2014 because of a discrepancy in our records."
Doc. 33 ]f 13. She also avers, "It was not discovered until March 2016 that a
social security number disclosed by the inmate failed to match the records for

the IRS and until that matter was resolved, he was not eligible for work." Id

Vitetta does not explain how she knows this information and does not appear
to be a record custodian. She is a correction officer and worked on Cabrera-

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Asencio's unit for some months,2 but apparently not in 2014 or March 2016.
See id. Tf 1.

Vitetta does not appear to have personal knowledge of the decision to
remove Cabrera-Asencio from his job or to not offer him a job. In fact, she avers
that Cabrera-Asencio did not hold a job while she was the Coordinator of his
unit. /d. Tf 14. In its previous order, this Court stated that the defendants
would not be liable if they could show a rational basis for their exclusion of

Cabrera-Asencio from employment at the prison. Although the evidence

supplied by Cabrera-Asencio shows there is a policy concerning employment
and SSNs, defendants' evidence does not show that it was applied to CabreraAsencio The record presently is devoid of evidence that Cabrera-Asencio was
not given a job because he did not have a SSN.

Further, Cabrera-Asencio alleges that Vitetta's supposition of how he
lost his job and was not rehired is untrue. He claims that he has never had a

SSN and never provided defendants with one m the first place. Doc 37

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He avers that the change in November 2014 that made him lose his pay was a
decision not to pay undocumented immigrants. Doc. 28 at 2. He also avers that

he was told by prison staff that he was not allowed to continue working
because he was an undocumented immigrant Id at 4. Cabrera-Asencio also

alleges that he was denied employment in retaliation for his grievances instead
Doc 28.

2 The Vitetta Affidavit states that she was "the Unit D Coordinator from December 8,
2015 to July 29, 2015," which might involve a typographical error or be understood as about
four months

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There remains an issue of material fact as to why Cabrera-Asencio was

denied employment. Therefore, defendants' motion for summary judgment is
denied at this time as to this portion of Cabrera-Asencio's claim under the
Equal Protection clause. Cabrera-Asencio's motion for summary judgment is

denied as to his claim under the Equal Protection clause
B.

First Amendment Retaliation

Cabrera-Asencio moves for summary judgment on his claim that

defendants violated his rights by retaliating against him for speaking Spanish.
Doc. 25 at 8 Defendants argue they are entitled to summary judgment based

on qualified immunity because Cabrera-Asencio was punished for being
insolent and disrespectful rather than for speaking Spanish Doc. 31 at 5.
Prison officials violate an inmate's constitutional rights by filing
disciplinary charges m retaliation for the inmate's exercise of his constitutional

rights. Sanders v. Hobbs, 773 F 3d 186, 190 (8th Cir. 2014). But the United
States Court of Appeals for the Eighth Circuit has held that a retaliation claim

fails "'if the alleged retaliatory conduct violations were issued for the actual
violation of a prison rule[,]'" and a defendant shows"'some evidence the

inmate actually committed a rule violation.'" Id. (quoting Hartsfield v Nichols,
511 F.3d 826, 829 (8th Cir. 2008)).

According to the United States Supreme Court, the "some evidence"
standard involves- "'Ascertaining whether this standard is satisfied does not

require examination of the entire record, independent assessment of the
credibility of witnesses, or weighing of thfe evidence. Instead, the relevant

question is whether there is any evidence in the record that could support the
conclusion reached by the disciplinary board.'"Id (quoting Superintendent v
Hill, 472 U.S. 445, 455-56 (1985))."'[A] report from a correctional officer, even

if disputed by the inmate and supported by no other evidence, legally suffices
as some evidence upon which to base a prison disciplinary violation, if the

violation is found by an impartial decisionmaker.'" Id. (quoting Harisfield, 511
F 3d at 831). Therefore, "the 'critical inquiiy is not whether the prisoner alleges

that prison officials retaliated against him for participating m constitutionally
protected activity, but instead is whether the prison disciplinary committee
ultimately found based upon some evidence that the prisoner committed the

charged violation of the prison regulations.'" Id. (quoting Cornell v. Woods, 69
F 3d 1383, 1389 (8th Cir. 1995).
Defendants have shown "some evidence" that Cabrera-Asencio violated a

prison rule. Cabrera-Asencio argues he was punished twice for speaking
Spanish, and evidence supports this in the record. The fact that he was

ordered to speak English was part of the evidence the hearing officer relied on
to punish Cabrera-Asencio in November of 2014. Doc 34-1 at 14. When
Cabrera-Asencio was punished m January of 2015, he presented a written
statement by a witness who claimed to have been the inmate who made the

offending statement. Doc. 34-1 at 5; Doc. 37 at 2. However, both Disciplinary
Reports clearly state that Cabrera-Asencio was punished for the derogatory
words he spoke, rather than the language he used Doc. 34-1 at 10, 14. The

Affidavit of Jennifer Dreiske states that there is not a policy requiring inmates
10

to speak English, even though prison staff prefer it so that there is a clear
understanding of what inmates say. Doc. 34

3-5. Therefore, defendants'

motion for summary judgment based on qualified immunity is granted as to
Cabrera-Asencio's First Amendment claim

C.

Motion to Appoint Counsel

Cabrera-Asencio also moves for appointment of counsel He has filed

three previous motions to appoint counsel. As this Court explained m the
orders denying those motions,"A pro se litigant has no statutory or
constrtutional right to have counsel appointed in a civil case." Stevens v.

Redwing, 146 F.3d 538, 546 (8th Cir. 1998). Little has changed to justify
appointing counsel since this Court denied his last motion. Although one of his
claims was dismissed, and defendants now are granted summary judgment on
other clarms, these rulings are based on the facts not subject to genuine
dispute as applied to the settled law, and not a result of Cabrera-Asencio's

failure to understand the legal process Up to this point, Cabrera-Asencio has
presented his claims quite well. Therefore, his current motion to appoint
counsel is denied.
V.

ORDER

Accordingly, it is ORDERED

1. Cabrera-Asencio's motion for summary judgment(Doc 24) rs denied.
2. Defendants' motion resisting summary judgment (Doc. 36) is denied
as moot.

3. Cabrera-Asencio's motion to appoint counsel(Doc 27) is denied.
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4. Defendants' motion for summary judgment(Doc. 30) is granted in
part and denied in part. Defendants are granted summary judgment
as to Cabrera-Asencio's claim that they violated his First Amendment
rights by retaliating against him. Defendants' motion is denied
without prejudice to refiling a renewed motion as to Cabrera-Asencio's

claim that they violated his rights under the Equal Protection Clause
by denying him employment.
Dated May

2017

BY THE COURT:

(J.
ROBERTO A LANGE
UNITED STATES DISTRICT JUDGE

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