Miller v. Solem, 83-1497-SD

• Decision Date: 22 March 1984
• Docket Number: No. 83-1497-SD,83-1497-SD
• Citation: 728 F.2d 1020
• Parties: John Everett MILLER, Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary, and Gay Krull, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1020

728 F.2d 1020

John Everett MILLER, Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary, and Gay Krull, Appellees.

No. 83-1497-SD.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 14, 1983.

Decided Feb. 23, 1984.

Rehearing Denied March 22, 1984.

Lon J. Kouri, May, Johnson, Doyle & Becker, P.C., Sioux Falls, S.D., for appellant.

Mark V. Meierhenry, Atty. Gen., Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, S.D., for appellees.

Before BRIGHT, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and HANSON ^*, Senior District Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

John E. Miller, an inmate at the South Dakota State Penitentiary, appeals from the district court's summary judgment dismissal of his pro se Sec. 1983 suit against defendants Warden Herman Solem and prison staff member Gay Krull for damages sustained as a result of being stabbed by a fellow inmate. We affirm.

Viewing the undisputed material facts in a light most favorable to Miller, we conclude that defendants did not "recklessly disregard" Miller's constitutional rights--specifically, his Eighth Amendment right to be free from cruel and unusual punishment.

I.

The relevant facts were disclosed by way of Miller's verified complaint, his supporting affidavits, defendants' affidavits, and the state criminal trial transcript in State v. Miller, CR. No. 80-77 (S.D.1980) which detailed the events surrounding the stabbing incident.

On November 1, 1978, Miller and fellow inmate William Conger had a fight in the "Trusty Cottage", a house located outside the prison wall and used as living quarters for "trusty" inmates like Miller and Conger. As a result, both men were disciplined; for Miller, this meant being taken back inside the penitentiary walls. Miller was later transferred to the penitentiary's West Farm, located approximately 13 miles west of the penitentiary. According to Solem, Miller was transferred to the West Farm instead of back to the Trusty Cottage to prevent his coming into contact with Conger, who still resided at the Cottage.

Occasionally, West Farm inmates, like Miller, needed services that were available only at the penitentiary. Typically, when these occasions arose, a prison staff member would transport the inmates to the Trusty Cottage lobby, where they would wait until called to the penitentiary. However, Warden Solem, aware of the hostility between Miller and Conger, advised subordinates of a precautionary arrangement for transporting Miller to the penitentiary. Under this arrangement, when Miller was taken to the penitentiary, he was to be dropped off at the Main Administration Building, rather than the Cottage. Solem thought this would be sufficient to prevent a possible confrontation between Miller and Conger. Solem apparently discussed the precautionary arrangement with Miller.

Defendant Gay Krull, a West Farm maintenance supervisor, frequently transported inmates from the West Farm to the penitentiary. On one such occasion, Krull drove Miller to the penitentiary and stopped at the Trusty Cottage. Miller told Krull that he was not to be left at the Cottage, but was to be taken to the lobby of the Main Administration Building. Although unaware of Solem's precautionary arrangement, Krull acceded to Miller's request and took him to the Administration Building.

On June 1, 1979, Krull again drove Miller, along with other West Farm inmates, to the penitentiary. This time Krull proceeded to the Cottage, where Miller voluntarily got off along with other inmates. Krull stated in his affidavit that Miller did not request to be taken to the Administration Building this time; Krull therefore assumed that whatever reason there was for taking him there had ended. Conger spotted Miller in the Cottage lobby and stabbed him. Defendant Krull and staff officer Nelson immediately came to Miller's assistance and disarmed Conger. Conger was disciplined for the assault but no state criminal charges were filed because Miller told South Dakota DCI Investigator Devansky that he had not been assaulted by Conger.

On November 3, 1981, Miller filed his pro se Sec. 1983 complaint, which was amended on June 11, 1982. Claiming "cruel and unusual punishment," Miller alleged: 1) defendants allowed the stabbing attack of Miller because Miller had refused to commit a murder for Solem; 2) defendants knew of the danger to Miller and did nothing to prevent the attack.

In June 1982, Miller sent various interrogatories to defendants, which they answered in July 1982. In November 1982, defendants filed their summary judgment motion, along with supporting affidavits. In them, both defendants stated they had no animosity toward Miller and no prior knowledge of Conger's attack. Solem stated that prior to the stabbing, inmate Conger had threatened numerous people, including Solem and Miller, but had never attempted to carry out any threat. However, as a precautionary measure, Solem instructed subordinates that Miller was not to be taken to the Trusty Cottage. Solem stated that he was never aware of any complaint that his instructions for transporting Miller were not being followed.

On December 1, 1982, Miller requested an order compelling discovery of Conger's disciplinary record, his "rap sheet", and documents relating to the criminal investigation of the stabbing incident. Defendants produced these documents. Also, on December 1, 1982 the district court, seeking to resolve defendant's motion for summary judgment, gave Miller until January 3, 1983 to submit opposing affidavits, other relevant materials, and an answering brief. Miller received an extension and on February 17, 1983, filed a thorough legal brief, several affidavits, and other materials in response to the summary judgment motion. The affidavits, signed by Miller and three other inmates, indicated that Associate Warden Rist told Miller that he was generally aware of the animosity between Miller and Conger, but that Solem had not specifically advised Rist of the precautionary transportation arrangement for Miller.

In addition to the affidavits filed by both Miller and defendants, the court also had the entire transcript of the criminal action of South Dakota v. Miller, CR. 80-77 (S.D.1980) which included a detailed account of the events surrounding the stabbing. Specifically, it contained Conger's testimony that his June 1, 1971 attack of Miller was "purely spontaneous".

The district court, viewing the undisputed evidence in a light most favorable to Miller, concluded that defendants were not deliberately indifferent to the constitutional rights of Miller; that they neither intended to deprive Miller of any rights nor acted with reckless disregard to his right to be free from attacks by fellow inmates. The court found that at most Solem was negligent in not informing Krull to take Miller to the Administration Building rather than the Cottage.

II.

Miller claims summary judgment was improper because: 1) the district court failed properly to notify him of his right to file counter affidavits and present other evidence in order to produce a triable issue of fact; 2) material factual evidence existed as to whether defendants were deliberately indifferent to his right to be protected from Conger.

Initially, there can be little doubt that the district court properly notified Miller of his right and duty under Fed.R.Civ.P. 56 to present affidavits or other materials in opposition to defendant's summary judgment motion. The court order of December 1, 1982 states:

I conclude that an orderly resolution of this action requires that the summary judgment motion be resolved. Pursuant to Rule 56 of the Rules of Civil Procedure, I will give plaintiffs until January 3, 1983 to submit opposing affidavits or other materials relevant to the motion for summary judgment, and an answering brief. The defendants shall have until January 21, 1983 to file and serve a reply brief. I will then decide the motion on the record thus made.

Pursuant to Miller's request, the court gave him until February 19, 1983 to file an answering brief, affidavits, and other materials. The correspondence letters between Miller and the district court reveal that Miller understood his obligations under Rule 56. Moreover, Miller responded to defendants' motion for summary judgment by filing an extensive legal brief, along with several affidavits and other materials, including a deposition of Associate Warden Rist and defendants' answers to various interrogatories. Miller has not shown how the district court prejudiced his case by denying him an opportunity to file any other relevant responsive materials. Compare Jensen v. Klecker, 599 F.2d 243, 245 (8th Cir.1979).

Miller's second claim--that there were material issues of fact regarding defendants' liability--is more problematic. In determining whether the district court properly granted summary judgment, we are guided by Fed.R.Civ.P. 56. Summary judgment, sometimes called an "extreme remedy", is appropriate only if the moving parties, the defendants here, demonstrate that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Cummings v. Roberts, 628 F.2d 1065, 1068 (8th Cir.1980). In passing on a summary judgment motion, a court must view the evidence "in a light most favorable to ... the party opposing the motion." Diebold, 369 U.S. at 655, 82 S.Ct. at 994. Also a court must liberally construe pro se civil rights complaints. Jensen v. Klecker, 599 F.2d 243, 245 (8th Cir.1979).

However, a party opposing a motion for summary judgment is not without obligations. Rule 56(e) states that "when a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest on mere allegations or denials of his pleadings, but his response, by affidavit or otherwise...