Kunze v. Bertsch
| Decision Date | 14 March 2007 |
| Docket Number | No. 1:05-cv-104.,1:05-cv-104. |
| Citation | 477 F.Supp.2d 1038 |
| Parties | David Robert KUNZE, Plaintiff, v. Leann BERTSCH, Director of Corrections; Tim Schuetzle, Director of Prisons; Robert Coad, Deputy Warden of Programs; Corky Stromme, Chief of Security; Mirna Stromme, Prison Mail Room Clerk; James Sayler, Prison Guard; Shaun Fode, CCW, Prison Guard; Pat Ross, Prison Guard; Jason Brazell, Prison Guard; Randy Smid, Prison Guard; Eric Hasby, Prison Guard; Steve Foster, Case Manager, A.S. Unit; and Troy Gross, Prison Guard, Defendants. |
| Court | U.S. District Court — District of North Dakota |
David Robert Kunze, Bismarck, ND, pro se.
Jean R. Mullen, Attorney General's Office, Civil Litigation, Bismarck, ND, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
On February 8, 2007, Defendants Leann Bertsch, Timothy Schuetzle, Robert Coad, Corky Stromme, Mirna Stromme, James Sayler, Shaun Fode, Pat Ross, Jason Brazell, Randy Smid, Eric Hasby, Steve Foster, and Troy Gross filed a Motion for Summary Judgment. For the reasons set forth below, the motion is granted.
The plaintiff, Robert David Kunze (Kunze), is an inmate at the North Dakota State Penitentiary in Bismarck, North Dakota. On August 29, 2005, Kunze filed a pro se complaint asserting that the Defendants had violated his civil rights pursuant to 42 U.S.C. § 1983. Magistrate Judge Charles S. Miller Jr. reviewed Kunze's complaint as mandated by the Prisoner Litigation Reform Act, 28 U.S.C. § 1915A(a), and concluded that Kunze had alleged four cognizable claims: (1) whether the duration and conditions of confinement in administrative segregation denied Kunze of his Eighth Amendment rights; (2) whether the confinement in administrative segregation was in retaliation for Kunze exercising his, First Amendment right to seek redress from the courts; (3) whether prison officials interfered with Kunze's non-legal mail in an impermissible, unconstitutional manner; and (4) whether prison officials confiscated Kunze's reading material in violation of the First Amendment. On January 4, 2006, Magistrate Judge Miller issued a Report and Recommendation and recommended that Kunze be allowed to proceed on those four claims. On January 12, 2006, the Court adopted Magistrate Judge Miller's Report and Recommendation and directed the Clerk of Court to file Kunze's complaint.
On April 13, 1999, Kunze was placed under the jurisdiction of the North Dakota Department of Corrections and Rehabilitation and is currently housed at the North Dakota State Penitentiary in Bismarck, North Dakota. See Docket No. 40. Kunze has a history of felony offenses resulting in incarceration in county jails and numerous state and federal prisons. He also has a history of at least six escapes from detention. Kunze's current sentence was imposed for theft and robbery while on escape from a county jail.
On November 6, 2002, David Kunze was placed in administrative segregation after allegedly threatening to kill another inmate. Id. North. Dakota State Penitentiary officials conducted an investigation and concluded that there was evidence showing that Kunze had threatened to kill another inmate. Consequently, Kunze was transferred to disciplinary detention with the understanding that he would return to administrative segregation once he completed his disciplinary detention.
Kunze contends that the Defendants lied about all of his actions in order to get even with him. Kunze states in his complaint:
And it was done with this idea, just to get even with Petitioner/Mr. Kunze. And, what was the driving force behind this?' Was that Petitioner in fact, had filed this 42 U.S.C. § 1983 Civil Rights Act & was filed, against this North Dakota State Penitentiary, Medical Department! Also! It is, a fact! This, Warden Schuetzle's idea to just get even with me for example. Was, for my filing this 42 U.S.C. § 1983 Civil Right Petition against this State Prison, plain simple which is what took place and why we point out this said Federal Magistrate Judge. And so, this was also the driving force which has kept me in this A.S. Unit, going on a continued 3 years and all because, we filed this Lawsuit against Warden Tim Schuetlze and a few others at this said State Penitentiary.
See Docket No. 17-1, ¶¶ 6-7 (errors in original).
The Defendants contend that the rationale for returning Kunze to administrative segregation was that he posed a continuing danger to the general penitentiary population. In mid-September 2004, Kunze was released from administrative segregation to the general population on an administrative segregation contract, requiring certain behavior from him. See Docket No. 40. Within a month, Kunze had written a letter threatening the warden and, as a result, Kunze was returned to administrative segregation. On an escalating basis, Kunze both verbally threatens and physically assaults correctional officers. Kunze also frequently attacks other staff or other inmates with "shit bombs" when they walk by the front of his cell. The record reveals that Kunze regularly threatens to kill staff or inmates, almost on a daily basis. See Docket No. 41-1, p. 3.
On September 13, 2005, Kunze was transferred to the Special Assistance Unit at the James River Correctional Center, a corrections facility located in Jamestown, North Dakota. See Docket No. 40. This facility is the only "inpatient psychiatric unit" to house and treat mentally ill inmates within the Department of Corrections and Rehabilitation. Although initially compliant and friendly, Kunze continued to display anger at North Dakota State Penitentiary officials including the use of foul language and threats. For example, Kunze complained to the Special Assistance Unit's staff about Warden Schuetzle and claimed that when he was released he was going to "level out the pen in Bismarck." See Docket No. 41-2, p. 9. When some items were pulled from Kunze's cell, he threatened staff by stating that if his property was not returned, they "would know what trouble is." Id. He then pointed a finger at the correctional officer with whom he was talking and stated "I'm not fucking joking buddy." Id. One month after he was placed in the Special Assistance Unit, Kunze stated that he did not want to talk to officers anymore and "that the war was on." Id. at 8. Finally, on October 21, 2005, he threatened to kill all of the staff when he was released. Id.
On November 18, 2005, Kunze was returned to administrative segregation at the North Dakota State Penitentiary because staff believed the Special Assistance Unit staff could offer no further assistance to Kunze. See Docket No. 41-2, p. 8. Upon his return to the penitentiary, Kunze immediately began receiving incident reports for threats and assaultive behavior on staff. Id. at 5. For example, on November 27, 2005, Kunze snatched a pen out of a corrections officer's hand and called him a "Navy fag cocksucker." Id. On November 28, 2005, Kunze threatened to "shit bomb" a corrections officer and threw a glass of water at the officer. Id.
While in administrative segregation, Kunze was afforded an opportunity to meet with the penitentiary's Administrative Segregation Committee once a month to discuss his status and to present his case for a return to the penitentiary's general population. Kunze was also given a chance to meet with the warden once every four months. Kunze has rarely agreed to meet with the warden and states that he has only agreed to see the warden approximately two times. See Docket Nos. 43-1, and 46, p. 7.
In his complaint, Kunze contends that he:
is being confined in this segregation cell for over [3] three long years! And in a cell measuring five feet by seven____ feet long and where up to this point in time, does constitute cruel — & very unusual punishment and which is covered by the 8TH Amendment in fact Constitutional Right's, against being treated as a human-being, in these action's take by state employees against Petitioner /Mr. Kunze.
See Docket No. 17-1, p. 3 (errors in original). Kunze further contends he "has [NOT] for example received any — fresh-air in all this time." Id. (errors in original).
The Defendants contend that while in administrative segregation, Kunze is offered one hour of outdoor exercise each weekday, Monday through Friday. See Docket No. 41-1, ¶ 21. Kunze has rarely taken advantage of this opportunity. Kunze is provided with an opportunity to leave the cell to take a shower three times a week. Again, Kunze rarely takes advantage of this out-of-cell time. Kunze generally refuses to leave his cell to go for medical visits, to use the telephone, or to have a haircut; all of which out-of-cell activities are available to him. Further, while in administrative segregation and disciplinary detention," Kunze is provided with access to his legal documents, writing materials, access to the law librarian, and access to law library books. See Docket No. 41-1, ¶ 22. Kunze also has access to books from the North Dakota State Penitentiary library, and may have a TV in his cell when on administrative segregation status and during his breaks from disciplinary detention status. The Defendants contend that Kunze's cell in administrative segregation is 55 square feet with 35 square feet of unencumbered space. See Docket No. 41-1, ¶ 20.
Because of Kunze's behavior, he has been placed in disciplinary detention often and has accumulated time to be served in disciplinary detention into 2008. See Docket No. 41-1, ¶ 18. Although Kunze served some of his disciplinary detention time in an administrative segregation cell, in November 2006, he was transferred to a disciplinary detention cell in the North Unit after he spread feces all over his administrative segregation cell. See Docket No. 4-21 p. 1. He has been housed in the...
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