Burke v. Dept. of Correction and Rehabilitation
| Decision Date | 05 June 2009 |
| Docket Number | Case No. 1:07-cv-004. |
| Citation | 620 F.Supp.2d 1035 |
| Parties | Dale Joseph BURKE, Plaintiff, v. NORTH DAKOTA DEPARTMENT OF CORRECTION AND REHABILITATION, Warden Tim Schuetzle, Deputy Warden Pat Branson, Medical Director Kathy Bachmeier, Correctional Officer J. Peterson, and Lieutenant Ron Bjelland, in their official capacities, Defendants. |
| Court | U.S. District Court — District of North Dakota |
Dale Joseph Burke, Bismarck, ND, pro se.
Michael T. Pitcher, Attorney General's Office, Bismarck, ND, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Before the Court is the Defendants' Motion for Summary Judgment filed on May 1, 2008. See Docket No. 40. The Plaintiff filed three motions for an extension of time to file a response. See Docket Nos. 49, 62, 64. The Court granted each of the Plaintiff's motions, and ultimately gave the Plaintiff until November 7, 2008, to file a response. See Docket Nos. 51, 63, 65. On November 5, 2008, the Plaintiff filed a response in opposition to the Defendants' motion. See Docket No. 70. On November 13, 2008, the Defendants filed a motion for an extension of time to file a reply brief. See Docket No. 75. The Court granted the Defendants' motion, and gave the Defendants until December 12, 2008, to file a reply brief. See Docket No. 76. The Defendants filed a reply on December 12, 2008. See Docket No. 77. The Plaintiff filed a surreply on December 17, 2008. See Docket No. 78. The Court gave the Defendants until February 5, 2009, to file a response to the Plaintiff's surreply. See Docket No. 84. On February 5, 2009, the Defendants filed a response to the Plaintiff's surreply. See Docket No. 85. For the reasons set forth below, the Court grants the Defendants' motion for summary judgment.
The plaintiff, Dale Joseph Burke, was convicted of two counts of murder and one count of arson in North Dakota state court. On September 17, 1998, he was sentenced to two life sentences without the possibility of parole on the murder convictions, and to ten years on the arson conviction. Burke was remanded to the custody of the North Dakota Department of Corrections and Rehabilitation (DOCR) for incarceration and hard labor pursuant to N.D.C.C. § 12-47-04.
Burke is an inmate at the North Dakota State Penitentiary (NDSP). He initiated a civil rights action under 42 U.S.C. § 1983 on January 23, 2007, in which he raised a myriad of claims. See Docket No. 2. On May 16, 2007, 2007 WL 1456217, the Court conducted a preliminary screening of Burke's complaint under 28 U.S.C. § 1915A to identify any cognizable claims and to dismiss any part of the complaint that is frivolous, malicious, fails to state a claim, or seeks monetary relief from an immune defendant. See Docket No. 4. The Court dismissed four of the claims (claims 1, 5, 8, and 9) without prejudice, dismissed one of the claims (claim 15) with prejudice, and found the remaining claims (claims 2, 3, 4, 6, 7, 10, 11, 12, 13, 14, 16, and 17) cognizable. In the twelve surviving claims, Burke alleges statutory and constitutional violations, including interference with the free exercise of religion, lack of adequate medical care, retaliation for exercising his constitutional rights, failure to protect, refusal to accommodate his disability, and cruel and unusual punishment.
On May 29, 2007, Burke filed a motion for leave to file an amended complaint to include the following defendants to be sued in their official capacities: Warden Tim Schuetzle, Deputy Warden Pat Branson, Medical Director Kathy Bachmeier, Correctional Officer J. Peterson, and Lieutenant Ron Bjelland. See Docket No. 6. The individual defendants are employees of the NDSP. On October 10, 2007, the Court granted Burke's motion for leave to file an amended complaint. See Docket No. 16. On October 10, 2007, Burke filed an amended complaint setting forth the same seventeen claims as in the original complaint, but adding the individual defendants to be sued in their official capacities. See Docket No. 17.
On April 28, 2008, Burke filed a motion for a temporary restraining order against NDSP Correctional Officer Barb Bailey "to stop harassing and interfering with plaintiffs legal work and law library rights and his access to the courts." See Docket No. 38 (error in original). The Court denied the motion on April 29, 2008. See Docket No. 39. On October 24, 2008, Burke filed a motion for a temporary restraining order against Medical Director Kathy Bachmeier "to treat plaintiffs testicle pain and allow plaintiff to purchase a new jock strap." See Docket No. 67 (error in original). On November 3, 2008, 2008 WL 4826080, the Court denied Burke's motion for a temporary restraining order against Kathy Bachmeier. See Docket No. 69.
In his 42 U.S.C. § 1983 action, Burke seeks monetary damages and injunctive relief from the Defendants. The Defendants move for summary judgment on all twelve surviving claims. The Defendants contend that there are no material facts in dispute and that they are entitled to judgment as a matter of law.
Summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, indicates that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir.2007); see Fed.R.Civ.P. 56(c). Summary judgment is not appropriate if there are factual disputes that may affect the outcome of the case under the applicable substantive law. Anderson v Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of material fact is genuine if the evidence would allow a reasonable jury to return a verdict for the non-moving party.
The Court must inquire whether the evidence presents a sufficient disagreement to require the submission of the case to a jury or whether the evidence is so one-sided that one party must prevail as a matter of law. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir.2005). "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the ultimate burden of proof to establish that there are no genuine issues of material fact, and that the movant is entitled to judgment as a matter of law. Carrington v. City of Des Moines, Iowa, 481 F.3d 1046, 1050-51 (8th Cir. 2007). The non-moving party "may not rely merely on allegations or denials in its own pleading; rather, its response must ... set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2).
Of Burke's twelve claims, he has alleged one claim pursuant to Title II of the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12131 et seq., and the remaining eleven claims are brought pursuant to 42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).
A bulwark for individual liberties, 42 U.S.C. § 1983 provides legal redress to individuals who suffer violations of their federal rights at the hands of any "person" who acts "under color" of state law. That being so, a § 1983 plaintiff can prevail only if he proves he has been subjected to a deprivation of "rights, privileges, or immunities secured by the Constitution or laws of the United States." And naturally, the challenged conduct must have been committed by one who acts "under color of state law."
Montano v. Hedgepeth, 120 F.3d 844, 848 (8th Cir.1997) (citations omitted).
Burke is a self-proclaimed practicing shaivite Hindu. In claims 2, 12, 13, and 16, Burke raises violations of the First and Fourteenth Amendments to the United States Constitution and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1, in his practice of the Hindu faith. Burke contends that the Defendants have violated the First and Fourteenth Amendments by denying him an hour of worship akin to a Sunday worship service afforded to Christian inmates, and by refusing to seek Hindu volunteers from the Bismarck, North Dakota community to assist him in his Hindu worship. Burke alleges that the Defendants violated the First Amendment and the Religious Land Use and Institutionalized Persons Act by denying him the use of items important to his religious faith: camphor, kumkum, incense, and a butter lamp.
In claim 12, Burke argues Thursdays are holy days in the Hindu religion, and the Defendants denied him a Hindu worship service on Thursdays even though the Defendants provide over twenty religious services and study hours for Christian inmates during the week. Essentially, Burke is alleging that the prison regulations denied him the equal protection of laws in violation of the Fourteenth Amendment by not affording Hindus the same opportunity for religious services as is given to members of other religions. Burke also alleges that the denial of a Hindu worship service on Thursdays violated his First Amendment right to the free exercise of religion.
In claim 2, Burke alleges that...
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