Cabrera-Asencio v. Young et al
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
DISTRICT OF SOUTH DAKOTA
MAY 1 0 2017
DARIN YOUNG (Warden), DENNY
KAEMINGK (Secretary of Corrections),
ELIZABETH VITETTA (Coordinator
D-Unit), AL ALLCOCK (Associate
Warden), JENIFER DRIESKE (Dept
OPINION AND ORDER
ON CROSS MOTIONS FOR
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.
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.
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.
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.
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)).
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.
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
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?