Thunder Hawk-Gallardo v. USM Name Unknown et al

Filing 69

ORDER granting 48 Motion for Summary Judgment; adopting in full 66 Report and Recommendation; overruling 67 , 68 Objections to Report and Recommendation. Signed by U.S. District Judge Karen E. Schreier on 7/18//18. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

FRANK THUNDER HAWK-GALLARDO,

4:17-CV-04001-KES

Plaintiff,
vs.
SERGEANT JEREMY WENDLING,
Defendant.

ORDER ADOPTING REPORT AND
RECOMMENDATION AND GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

Plaintiff, Frank Thunder Hawk-Gallardo, an inmate at the Pennington
County Jail, filed this lawsuit under 42 U.S.C. § 1983. Docket 28. Defendant,
Sergeant Jeremy Wendling, moves for summary judgment based on qualified
immunity. Docket 48. The court granted Wendling’s motion to stay discovery
pending the resolution of the qualified immunity issue. Docket 40. The matter
was referred for a report and recommendation to Magistrate Judge Veronica L.
Duffy under 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Duffy recommends that
Wendling’s motion for summary judgment be granted. Docket 66. Thunder
Hawk-Gallardo objects to the report and recommendation. Docket 67; Docket
68. For the following reasons, the court grants Wendling’s motion for summary
judgment. Additionally, the court dismisses Thunder Hawk-Gallardo’s cruel
and unusual punishment claim.

FACTS 1
On September 20, 2016, Thunder Hawk-Gallardo, an inmate at the
Pennington County Jail in Rapid City, South Dakota, was transported from
Pennington County to the South Dakota State Penitentiary (SDSP) in Sioux
Falls, South Dakota. Docket 50 ¶ 8. Thunder Hawk-Gallardo and Dre Red
Feather were among a group of inmates transported in a shuttle bus to SDSP.
Id. ¶ 9. For security purposes, Thunder Hawk-Gallardo and Red Feather each
wore hand and leg restraints and a “belly chain” during transport. Id. ¶ 10.
When the group arrived at the SDSP, the inmates were taken to the
intake area of the Jameson Prison Annex (JPA) for processing. Id. ¶ 10. Jeremy
Wendling, ID Sergeant of the JPA, began to remove the inmates’ restraints.
Docket 51 ¶ 2, ¶ 7. Wendling was assisted by Sean Levy, a Lieutenant at the
SDSP. Id. Once Red Feather’s hand restraints had been removed, he swung at
Thunder Hawk-Gallardo and struck him twice in the face. Docket 50 ¶ 11. In
response, Thunder Hawk-Gallardo bent over and pushed himself into Red
Feather to stop his advances. Docket 50 ¶ 15. Red Feather fell backward and
Thunder Hawk-Gallardo stood up. Id. Once he stood up, Thunder HawkGallardo looked for the guards and saw Wendling grabbing his radio to call a
code. Id. ¶ 16; Docket 51 ¶ 12. Red Feather was then restrained by Wendling
and Levy and placed in a holding cell. Docket 51 ¶¶ 12-13.

The court recites the facts in the light most favorable to Thunder HawkGallardo as the non-moving party to the motion for summary judgment. Where
the facts are disputed, both parties’ averments are included.
1

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The entire incident between Thunder Hawk-Gallardo and Red Feather
lasted “only a matter of seconds.” Docket 51 ¶ 14. This assertion is supported
by affidavits from Wendling, Levy, and from John Benting, a Major at the JPA.
Id.; Docket 53 ¶ 13; Docket 52 ¶ 13. Thunder Hawk-Gallardo’s only description
of the incident’s duration—“a bit of time”—is less specific but not inconsistent
with Wendling’s averment. Docket 28 at 8. The brief duration of the incident
did not provide an opportunity for prison staff, including Wendling, to intervene
any sooner than they did. Docket 50 ¶ 19.
Both parties were surprised by Red Feather’s attack on Thunder HawkGallarado. Docket 50 ¶ 12; Docket 56 at 4. Thunder Hawk-Gallardo stated he
“[did] not know why inmate Red Feather attacked me.” Docket 56 at 4.
Wendling stated that he “had no advance knowledge of any animosity or ill will
between the two inmates that would have given me reason to believe, even in
the slightest sense, that there was any risk of harm to Thunder HawkGallardo.” Docket 51 ¶ 10.
Once the officers intervened in the fight and Red Feather was removed to
a holding cell, Thunder Hawk-Gallardo was placed in a different holding cell
within the JPA. Docket 51 ¶ 13. Thunder Hawk-Gallardo was secured to a
cement block and was denied use of a bathroom from 12:30 p.m. to 6:00 p.m.
Docket 28 at 5. During this time, Thunder Hawk-Gallardo asked Wendling to
call his lawyer and asked to use the bathroom. Id. Wendling told Thunder
Hawk-Gallardo to “shut up” in response to his requests. Id. After several hours
in pain and still needing a bathroom, Thunder Hawk-Gallardo urinated and
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defecated on himself. Id. A prison official then took him to the “hole” where
Thunder Hawk-Gallardo alleges he still had urine and feces on himself and was
given a “crazy dress” to wear. Id.
The following day, both Thunder Hawk-Gallardo and Red Feather were
transported back to the Pennington County Jail. Docket 51 ¶ 13.
LEGAL STANDARD
Review of a magistrate judge’s report and recommendation is governed by
28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. Under 28
U.S.C. § 636(b)(1), the court reviews de novo any objections that are timely
made and specific. See Fed. R. Civ. P. 72(b) (“The district judge must determine
de novo any part of the magistrate judge’s disposition that has been properly
objected to.”). In conducting its de novo review, this court may then “accept,
reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1); United States v. Craft, 30 F.3d
1044, 1045 (8th Cir. 1994).
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate where the moving party “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 court must view the facts, and
inferences from those facts, in the light most favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007) (citing United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962)); Helton v. Southland Racing Corp., 600 F.3d 954, 957
(8th Cir. 2010) (per curiam). The burden is placed on the moving party to
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establish both the absence of any genuine issue of material fact and that it is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Once the movant
has met its burden, the nonmoving party may not simply rest on the
allegations in the pleadings, but must set forth specific facts, by affidavit or
other evidence, showing that a genuine issue of material fact exists. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Fed. R. Civ. P. 56(e).
“A dispute is genuine when ‘the evidence is such that a reasonable jury
could return a verdict for the non-moving party.’ ” Westchem Agric. Chems. Inc.,
v. Ford Motor Co., 990 F.2d 426, 429 (8th Cir. 1993) (quoting Anderson, 477
U.S. at 248). “A fact is material when it might affect the outcome of the suit
under governing law.” Davis v. Or. Cty., 607 F.3d 543, 548 (8th Cir. 2010)
(citing Anderson, 477 U.S. at 248)). “Only disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Anderson, 477 U.S. at 248. “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact.” Id. at 247–48.
The availability of summary judgment is essentially a question of
determining “whether there is the need for a trial—whether, in other words,
there are any genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of either party.”
Id. at 250. Though pro se litigants are entitled to a liberal construction of their
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pleadings, Federal Rule of Civil Procedure 56 remains equally applicable to
them. Quam v. Minnehaha Cty. Jail, 821 F.2d 522, 522 (8th Cir. 1987).
DISCUSSION
Wendling moves for summary judgment based on qualified immunity.
Docket 48. Because the court has stayed discovery in this matter until the
issue of qualified immunity is determined, the court must first determine
whether Wendling is entitled to qualified immunity. Before determining
whether Wendling is entitled to qualified immunity, however, the court will
address Thunder Hawk-Gallardo’s objections to the report and
recommendation, his official capacity claim against Wendling, and his request
for declaratory and injunctive relief.
I. Objections to the Report and Recommendation
Thunder Hawk-Gallardo timely submitted objections to the report and
recommendation. Docket 67; Docket 68. Thunder Hawk-Gallardo identifies six
specific objections, five of which are factual objections. Docket 67 at 1-2.
Thunder Hawk-Gallardo’s first objection is to the report and recommendation’s
conclusion that Thunder Hawk-Gallardo did not file a response to Wendling’s
statement of undisputed material facts. Docket 67 at 1. The report and
recommendation acknowledges that Thunder Hawk-Gallardo submitted a
motion in opposition to defendant’s motion for summary judgment (Docket 56).
Docket 66 at 4. But Thunder Hawk-Gallardo failed to respond to defendant’s
statement of undisputed material facts in compliance with Local Rule 56, a

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copy of which was provided to him. 2 Id. Because Thunder Hawk-Gallardo’s
motion in opposition to Wendling’s summary judgment motion did not identify
material facts that were in genuine dispute, the report and recommendation
was accurate and the objection is overruled.
Second, Thunder Hawk-Gallardo objects to the report and
recommendation’s clarification that he was not a pretrial detainee on
September 20, 2016. Docket 67 at 1. The report and recommendation correctly
states that while Thunder Hawk-Gallardo cites legal authority describing
pretrial detainees’ rights, he does not specifically identify himself as a pretrial
detainee. Docket 66 at 6 n.3. To do so would be incorrect. The report notes that
Thunder Hawk-Gallardo is a post-trial detainee. Id. Thus, his claims are
properly evaluated under the Eighth Amendment. Walton v. Dawson, 752 F.3d
1109, 1117 (8th Cir. 2014). The objection is overruled.
Third, Thunder Hawk-Gallardo objects to the report and
recommendation’s statement of facts regarding Wendling and Levy’s actions
during the brief time the attack occurred. Docket 67 at 2. The events in the
report and recommendation, and their chronology, are supported by affidavits

A party opposing a motion for summary judgment must respond
to each numbered paragraph in the moving party’s statement of
material facts with a separately numbered response and appropriate
citations to the record. A party opposing a motion for summary
judgment must identify any material facts on which there exists a
genuine material issue to be tried.
D.S.D. Civ. LR 56.1.B. Further, “[a]ll material facts set forth in the movant’s
statement of material facts will be deemed to be admitted unless controverted
by the opposing party’s response to the moving party’s statement of material
facts.” D.S.D. Civ. LR 56.1.D.
2

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in the record. See Dockets 51, 52, 53. Thunder Hawk-Gallardo objects to the
possibility of those actions occurring within seconds, but he does not provide
his own facts to controvert those in the record. Thus, the objection is overruled.
Fourth, Thunder Hawk-Gallardo objects to the report and
recommendation’s statement of facts regarding his transfer back to the
Pennington County Jail on the day following the incident described in the
amended complaint. Docket 67 at 2. Thunder Hawk-Gallardo suggests he was
transferred to a correctional facility in a different state, but he does not specify
a location. Id. Thunder Hawk-Gallardo did not previously raise this objection in
response to Wendling’s statement of undisputed material facts. Even if he had
previously objected and created a dispute of fact, the specific correctional
facility to which he was transferred on the day following the incident is not
material to Thunder Hawk-Gallardo’s § 1983 claims. Thus, the objection is
overruled.
Fifth, Thunder Hawk-Gallardo objects to the report and
recommendation’s statement that he was given clean clothes to wear once the
fight ended and he was sent to the “hole.” Docket 67 at 2. But Thunder HawkGallardo’s objection overlooks that the report and recommendation’s finding
qualifies that the type of clothing he was given “amounted to . . . a ‘crazy dress’
(suicide gown).” Docket 66 at 9. In this regard, the report and
recommendation’s statement of facts is not inconsistent with Thunder HawkGallardo’s own averment. Thus, the objection is overruled.

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Sixth, Thunder Hawk-Gallardo objects to the report and
recommendation’s analysis of his cruel and unusual punishment claim as a
screening and dismissal under 28 U.S.C. § 1915A. Docket 67 at 3. This
objection is addressed by the court infra Section IV.
Thunder Hawk-Gallardo’s misunderstandings of the report and
recommendation, and his objections consisting of restatements of allegations in
the complaint, do not establish genuine disputes of material fact. Instead of
citing to specific evidence showing a genuine dispute of fact, Thunder HawkGallardo chose to “ ‘rest upon the mere allegations of his pleadings . . . .’ ”
Anderson, 477 U.S. at 248 (quoting Fed. R. Civ. P. 56(e)). The court finds that
the report and recommendation’s statement of facts is not contrary to the
record. The record is shaped significantly by Wendling’s statement of
undisputed material facts, Docket 50, which is deemed to be admitted because
it was not controverted by Thunder Hawk-Gallardo as required by the Local
Rules. Docket 66 at 4. Thus, for purposes of summary judgment, Thunder
Hawk-Gallardo’s five factual objections fail to overcome his burden to show
that a genuine dispute of material fact exists.
II. Official Capacity Claim
A. Money Damages Remedy
Thunder Hawk-Gallardo also brought suit against Wendling in his
official capacity. Docket 28 at 2. The Supreme Court has stated, “a suit against
a state official in his or her official capacity is not a suit against the official but
rather is a suit against the official’s office.” Will v. Mich. Dep’t of State Police,
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491 U.S. 58, 71 (1989) (citing Brandon v. Holt, 469 U.S. 464, 471 (1985)).
Thus, it is a suit against the state itself. Id. While “[§] 1983 provides a federal
forum to remedy many deprivations of civil liberties . . . it does not provide a
federal forum for litigants who seek a remedy against a State for alleged
deprivations of civil liberties.” Id. at 66. The Eleventh Amendment generally
acts as a bar to suits against a state for money damages unless the state has
waived its sovereign immunity. Id.
Here, as part of Thunder Hawk-Gallardo’s requested remedy, he seeks to
recover money damages. Docket 28 at 7. Consequently, because Thunder
Hawk-Gallardo sued Wendling in his official capacity, Thunder Hawk-Gallardo
has asserted a claim for money damages against the state of South Dakota.
The state of South Dakota has not waived its sovereign immunity. Thus, to the
extent Thunder Hawk-Gallardo seeks to hold Wendling liable in his official
capacity for money damages, the court finds that Wendling, in his official
capacity, and thus, the state of South Dakota, is protected by sovereign
immunity and is entitled to judgment on this issue as a matter of law.
B. Declaratory and Injunctive Relief
Thunder Hawk-Gallardo’s official capacity claim also seeks declaratory
and injunctive relief. Claims for declaratory and injunctive relief are rendered
moot when a prisoner is released or transferred to another facility. See Smith v.
Hundley, 190 F.3d 852, 855 (8th Cir. 1999) (discussing Hickman v. Missouri,
144 F. 3d 1141, 1142 (8th Cir. 1998) and Martin v. Sargent, 780 F.2d 1334,
1337 (8th Cir. 1985)). This is true even if the prisoner argues that he might, at
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some future time, be incarcerated at the same prison. Smith, 190 F.3d at 855.
Thunder Hawk-Gallardo was transferred from the SDSP back to the
Pennington County Jail on the day following the incidents described in the
amended complaint. Docket 51 ¶ 13; Docket 53 ¶ 12. Thus, Thunder HawkGallardo’s claims for declaratory and injunctive relief are moot.
III. Qualified Immunity
Thunder Hawk-Gallardo also sued Wendling in his individual capacity.
Docket 28 at 2. 42 U.S.C. § 1983 recognizes a cause of action against any
“person who, under the color of any statute, ordinance, regulation, custom, or
usage, of any state” causes the deprivation of a right protected by federal law
or the United States Constitution. A § 1983 claim for monetary damages may
proceed against state officials sued in their individual capacities. Hafer v. Melo,
502 U.S. 21, 27 (1991). Wendling, in his individual capacity, contends that he
is entitled to qualified immunity. Docket 49 at 2. The doctrine of qualified
immunity generally shields “ ‘government officials performing discretionary
functions . . . from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’ ” Smith v. City of Minneapolis, 754 F.3d
541, 545 (8th Cir. 2014) (alteration omitted) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). Qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs, 475
U.S. 335, 341 (1986).

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Qualified immunity is immunity from suit rather than just a defense
from liability, and thus the defense is lost if a case is erroneously permitted to
go to trial. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citing Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)). “For this reason, qualified immunity cases
are somewhat unique in that ‘the court should [not] deny summary judgment
any time a material issue of fact remains on the [constitutional violation] claim
[because to do so] could undermine the goal of qualified immunity.’ ” Jones v.
McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012) (alterations in original) (quoting
Brockinton v. City of Sherwood, 503 F.3d 667, 671 (8th Cir. 2007)). Further,
because qualified immunity is an immunity from suit, the Supreme Court has
noted that immunity questions must be resolved at the earliest possible stage
of litigation, preferably prior to discovery. Pearson, 555 U.S. at 231-32.
To overcome a qualified immunity defense at the summary judgment
stage, a plaintiff must show: “(1) the facts, viewed in the light most favorable to
the plaintiff, demonstrate the deprivation of a constitutional or statutory right;
and (2) the right was clearly established at the time of the deprivation.”
Howard v. Kan. City Police Dep’t, 570 F.3d 984, 988 (8th Cir. 2009). The court
may analyze these two prongs in either order, Pearson, 555 U.S. at 236, but
they must thoroughly analyze both prongs of the qualified immunity doctrine.
Jones, 675 F.3d at 1162 (remanding a summary judgment order “for a more
detailed qualified immunity analysis”). “To deny [defendant] qualified
immunity, [the court] must resolve both questions in [plaintiff’s] favor.”
Hawkins v. Gage Cty., 759 F.3d 951, 956 (8th Cir. 2014).
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A. Whether a Clearly Established Right Existed at the Time of
Alleged Deprivation
“The Cruel and Unusual Punishments Clause [of the Eighth
Amendment] ‘was designed to protect those convicted of crimes,’ and
consequently the Clause applies ‘only after the State has complied with the
constitutional guarantees traditionally associated with criminal
prosecutions.’ ” Whitley v. Albers, 475 U.S. 312, 318 (1986) (quoting Ingraham
v. Wright, 430 U.S. 651, 664, 671 n.40 (1977)) (internal citation omitted). The
Supreme Court in Farmer v. Brennan, 511 U.S. 825 (1994), stated that this
protection includes a “clearly established . . . right to be protected from
violence by other inmates.” Id. at 833. On September 20, 2016—the date of the
incidents described in the amended complaint—Thunder Hawk-Gallardo was a
federal inmate who had been convicted in federal court on August 31, 2016.
Docket 66 at 6 n.3. Thus, his claims against Wendling are evaluated under the
Eighth Amendment. Wendling does not dispute that Thunder Hawk-Gallardo’s
right to be protected from violence at the hands of other prisoners was clearly
established at the time the attack occurred. Docket 49 at 4.
B. Whether Wendling Deprived Thunder Hawk-Gallardo of a
Constitutional Right
In the other prong of the qualified immunity analysis, the court must
consider whether Thunder Hawk-Gallardo’s Eighth Amendment right was
violated. Thunder Hawk-Gallardo styled his complaint as an Eighth
Amendment “failure to protect” claim. Docket 28 at 4-5. But a failure to protect
claim does not arise from inmate injuries resulting from a surprise attack by
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another inmate. Tucker v. Evans, 276 F.3d 999, 1001 (8th Cir. 2002). Instead,
the court construes Thunder Hawk-Gallardo’s claim as a deliberate
indifference claim that argues that Wendling was deliberately indifferent to his
safety by not intervening in the attack sooner. Docket 11 at 5.
Prison officials must “ ‘take reasonable measures to abate substantial
risks of serious harm, of which the officials are aware.’ ” Prater v. Dahm, 89
F.3d 538, 541 (8th Cir. 1996) (quoting Reece v. Groose, 60 F.3d 487, 491 (8th
Cir. 1995)). Prison officials violate an inmate’s right to be protected from harm
by fellow inmates “only when they exhibit a ‘deliberate or callous indifference’
to an inmate’s safety.” Tucker, 276 F.3d at 1001 (quoting Davidson v. Cannon,
474 U.S. 344, 347 (1986)). A two-step inquiry determines whether a prison
official was deliberately indifferent and thus whether a right was violated.
Walls v. Tadman, 762 F.3d 778, 782 (8th Cir. 2014) (citing Whitson v. Stone
Cty. Jail, 602 F.3d 920, 923 (8th Cir. 2010)).
A prisoner must satisfy two requirements, one objective and one
subjective. The first requirement tests whether, viewed objectively,
the deprivation of rights was sufficiently serious; i.e., whether the
inmate is incarcerated under conditions posing a substantial risk of
serious harm. The second requirement is subjective and requires
that the inmate prove that the prison official had a sufficiently
culpable state of mind. In prison conditions claims . . . the subjective
inquiry regarding an official’s state of mind is one of deliberate
indifference’ to inmate health or safety. An official is deliberately
indifferent if he or she actually knows of a substantial risk and fails
to respond reasonably.
Whitson, 602 F.3d at 923 (internal quotations and citations omitted) (emphasis
added). Thus, to establish deliberate indifference, Thunder Hawk-Gallardo
must show (1) that his incarceration in JPA on September 20, 2016, objectively
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posed a substantial risk of serious harm, and (2) that Wendling subjectively
knew of the risk and disregarded it.
Here, the facts and analysis in Holden v. Hirner, 663 F.3d 336 (8th Cir.
2011), are instructive. In Holden, the plaintiff, a convicted sex offender, was
placed in the jail’s protective custody pod that provides added protection for
inmates who face a greater likelihood of attack. Id. at 339. Plaintiff was
attacked by his three cellmates inside the pod. Id. The defendant, a prison
official, intervened to stop the attack about one minute after it began. Id. The
district court granted defendant’s motion for summary judgment based on
qualified immunity. Id. at 340.
On appeal, the Eighth Circuit in Holden analyzed the two requirements
necessary for a plaintiff to establish deliberate indifference. Id. at 341-42. First,
the court determined that, viewed objectively, plaintiff had not been placed at
risk of substantial harm. Id. at 341. Prison officials had perceived a potential
risk and taken steps to abate the risk by placing the plaintiff in the protective
pod. Id. Second, the court considered the subjective prong of the deliberate
indifference test. Id. at 341-42. The court stated that even if the cellmate’s
violent history created an objective risk of serious harm, “an inmate’s history of
violence alone is insufficient to impute to prison officials subjective knowledge
of the inmate’s danger to harm other inmates.” Id. (citation omitted). There was
no evidence the defendant was actually aware of the violent history of plaintiff’s
cellmate. Id. at 342. The record also did not establish that defendant knew of
that cell mate’s violent history and disregarded that substantial risk of serious
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harm. Id. Thus, summary judgment was appropriate because the plaintiff
failed to establish both requirements of the deliberate indifference test. Id.
Thunder Hawk-Gallardo points to Cohrs v. Norris, 210 F.3d 378 (8th Cir.
2000) (unpublished) 3 as analogous to his own case. In Cohrs, the Eighth
Circuit affirmed summary judgment for defendants on deliberate indifference
for failure to prevent an attack, but remanded due to factual disputes on the
issue of deliberate indifference for failure to intervene. Id. at 2. The plaintiff in
Cohrs was attacked by several inmates. Id. The record indicated that the
defendant, a prison official, watched the fight from the safety of the control
booth for twenty to twenty-five minutes without taking any steps to intervene
or end the assault. Id. at 2. The court noted that while “prison guards have no
constitutional duty to intervene in an armed assault,” they could exhibit
deliberate indifference by “failing to seek assistance from other parts of the
prison.” Id. The Eighth Circuit reversed the district court’s grant of summary
judgment on deliberate indifference for failure to intervene and remanded for a
factual determination of what steps, if any, defendant took to intervene during
the twenty to twenty-five minutes the assault persisted. Id.
Williams v. Mueller, 13 F.3d 1214 (8th Cir. 1994) is another case cited by
Thunder Hawk-Gallardo in opposition to Wendling’s motion for summary
judgment. In Williams, two inmates assaulted plaintiff inside the jail dormitory.
Id. at 1215. Plaintiff tried to escape his attackers, but the defendant, a

The court cites to this unpublished opinion issued before January 1, 2007,
for its “[relevance] to establishing . . . the law of the case.” 8th Cir. R. 32.1A.
3

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correctional officer, observed the attack, then closed and locked the dormitory
door without intervening. Id. After a “significant delay,” the defendant called on
other officers to intervene. Id. Their intervention ended the assault twenty to
twenty-five minutes after it began. Id. The court stated that the correctional
officer’s obligation was to “intervene or otherwise act to end the assault.”
Williams v. Mueller, 13 F. 3d 1214, 1216 (8th Cir. 1994). Because questions of
fact existed as to whether the defendant was deliberately indifferent in his
intervention, the Eighth Circuit reversed the district court’s grant of summary
judgment and remanded for further factual determinations. Id. at 1217.
The Eighth Circuit has noted that inherent dangers exist inside a prison
due to the nature of its occupants. Andrews v. Siegel, 929 F.2d 1326, 1330
(8th Cir 1991) (citations omitted). The substantial risk required to satisfy
deliberate indifference must rise above the inherent danger in prisons and
must be more than “ ‘single . . . or isolated incidents.’ ” Id. (quoting Martin v.
White, 742 F.2d 469, 474 (8th Cir. 1984)). Here, nothing in the record supports
a finding that Thunder Hawk-Gallardo’s incarceration placed him in
substantial risk of serious harm. The record does not suggest that the intake
procedures at the JPA on September 20, 2016, were dangerous or beyond
standard protocol. In fact, the record indicates that Red Feather and Thunder
Hawk-Gallardo were both wearing hand and leg restraints as a security
measure during transport and on arrival. Docket 50 ¶ 10. The record also does
not contain any information about Thunder Hawk-Gallardo’s or Red Feather’s
history, if any, of violent behavior in prison. Thunder Hawk-Gallardo was
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surprised by the attack. Docket 56 at 4. He does not point to any evidence
showing that, objectively, a substantial risk of serious harm could have been
perceived as he entered the JPA. See Docket 56; Docket 67. This surprise
attack appeared to be an isolated incident. Viewed objectively, Thunder HawkGallardo cannot establish that he was subject to a substantial risk of serious
harm at the JPA on September 20, 2016. Thus, Thunder Hawk-Gallardo fails
to establish the first requirement for deliberate indifference.
Even if Thunder Hawk-Gallardo could establish that he faced a
substantial risk of harm in the JPA, the record does not support a conclusion
that Wendling knew of and disregarded a substantial risk of serious harm.
Thunder Hawk-Gallardo argues that Wendling’s rank, experience, and
knowledge of SDPS policies should preclude the type of attack that transpired.
Docket 56 at 2. In Cohrs and Williams, the record was void of any account of
defendants’ action or inaction during the time the assaults persisted without
intervention from facility staff. Cohrs, 210 F.3d at 2; Williams, 13 F.3d at 1216.
Here, however, when Wendling saw the attack, he acted within seconds to both
call for additional help and to physically intervene. In fact, Wendling responded
with greater expediency than the defendant in Holden who intervened in about
a minute. Docket 50 ¶ 18; Holden, 663 F.3d at 339. The Eighth Circuit held
that the defendant in Holden was not deliberately indifferent in his
intervention to a prison attack. Holden, 663 F.3d at 342. When Thunder
Hawk-Gallardo surprisingly found himself being attacked, Wendling intervened
to abate the harm within seconds. Docket 50 ¶ 18.
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Thunder Hawk-Gallardo’s case is also distinguishable from Cohrs and
Williams in that those cases were remanded for further determinations of fact.
Here, the undisputed record unequivocally indicates that Wendling intervened
and he did so quickly with no opportunity to intervene sooner than he did. Id.
¶¶ 18-19. “Conclusive assertions of ultimate fact,” such as Thunder HawkGallardo’s allegation without specific factual support that Wendling could have
intervened sooner, Docket 56 at 7, “are entitled to little weight when
determining whether a non-movant has shown a genuine issue of fact.” Miller
v. Solem, 728 F.2d 1020, 1024 (8th Cir. 1984). Without evidence and specific
facts to controvert those submitted by Wendling, Thunder Hawk-Gallardo has
failed to establish any genuine dispute of material fact exists concerning the
subjective requirement of deliberate indifference. The undisputed record does
not show that Wendling failed to respond to a known risk. Thus, as a matter of
law, Gallardo cannot establish the second requirement of deliberate
indifference.
The record indicates that Wendling’s only failure was a failure to predict
a surprise attack by one prisoner on another. Such a failure is not actionable
as a constitutional violation under 42 U.S.C. § 1983. See Tucker, 276 F.3d at
1001. As the report and recommendation identifies, the crux of Thunder
Hawk-Gallardo’s claim is that Wendling did not intervene in the precise
manner and with the expediency Thunder Hawk-Gallardo desired. Docket 66
at 23. But when applying the undisputed facts to the deliberate indifference
standard, and viewing the evidence in the light most favorable to Thunder
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Hawk-Gallardo, Wendling’s conduct does not rise to the level of deliberate
indifference. Thus, Wending did not violate Thunder Hawk-Gallardo’s Eighth
Amendment right and Wending is entitled to qualified immunity.
IV. Dismissal of Thunder Hawk-Gallardo’s Cruel and Unusual Punishment
Claim
The report and recommendation appropriately screens Thunder HawkGallardo’s claim of cruel and unusual punishment for refusing access to a
bathroom. “[T]he court shall dismiss [a claim] at any time if the court
determines that . . . (B) the action . . . (ii) fails to state a claim on which relief
may be granted . . . .” 28 U.S.C. § 1915(e)(2)(B)(ii) (emphasis added). See Fed.
R. Civ. P. 12(b)(6) (providing for dismissal of a claim if the claimant fails to state
a claim upon which relief can be granted).
“To survive[,] . . . a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is plausible on its face.’ ”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). The court considers only the materials in the
pleadings and exhibits attached to the complaint, drawing on experience and
common sense and viewing plaintiff's claim as a whole. Whitney v. Guys, Inc.,
700 F.3d 1118, 1128 (8th Cir. 2012) (quotation omitted). “[P]ro se litigants
must set forth [a claim] in a manner which, taking the pleaded facts as true,
states a claim as a matter of law.” Stringer v. St. James R-1 Sch. Dist., 446 F.3d
799, 802 (8th Cir. 2006). “[A] pro se complaint, however, inartfully pleaded, [is

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held] to less stringent standards than formal pleadings drafted by lawyers.”
Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014).
Thunder Hawk-Gallardo objects to screening and dismissal of his cruel
and unusual punishment claim at this stage. Docket 67 at 3. He does not
object to the standard for dismissal and its application of facts as contained in
the report. Id. He seems to argue that the claim was already screened and that
it survived. Id. But the report and recommendation correctly states that in the
court’s screening of the amended complaint, Docket 27, the court never
addressed the incident Thunder Hawk-Gallardo identifies as Counts II and III
that the court construes as a claim for cruel and usual punishment for
denying him use of a bathroom. Docket 66 at 31. Because neither the initial
screening order, Docket 11, nor the rescreening of the amended complaint,
Docket 27, address his cruel and unusual punishment claim, screening within
the report and recommendation is appropriate. Upon de novo review, the court
finds that dismissal following screening is appropriate. Thus, the court adopts
the report and recommendation regarding Thunder Hawk-Gallardo’s cruel and
unusual punishment claim.
CONCLUSION
Wendling, in his official capacity, is protected by sovereign immunity
against Thunder Hawk-Gallardo’s claim for money damages. Thunder HawkGallardo’s claim for declaratory and injunctive relief is moot because he was
transferred to another correctional facility. Thunder Hawk-Gallardo’s Eighth
Amendment right was clearly established on September 20, 2016. But he
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cannot prove a violation of that right because he failed to establish that
Wendling acted with deliberate indifference. Thus, Thunder Hawk-Gallardo has
failed to overcome the qualified immunity defense, and Wendling is entitled to
summary judgment. Thunder Hawk-Gallardo’s cruel and unusual punishment
claim is dismissed because he fails to state a claim on which relief may be
granted.
Thus, it is ORDERED:
1. Thunder Hawk-Gallardo’s objections to the report and recommendation
are overruled (Docket 67; Docket 68).
2. The report and recommendation (Docket 66) is adopted in full.
3. Wendling’s motion for summary judgment (Docket 48) with prejudice is
granted.
4. Thunder Hawk-Gallardo’s cruel and unusual punishment claim is
dismissed without prejudice.
DATED July 18, 2018.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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