Moore v. Schuetzle, 1:06-cv-079.
| Decision Date | 18 May 2007 |
| Docket Number | No. 1:06-cv-079.,1:06-cv-079. |
| Citation | 486 F.Supp.2d 969 |
| Parties | Anthony James MOORE, Plaintiff, v. Timothy SCHUETZLE, in his individual and official capacities, Defendant. |
| Court | U.S. District Court — District of North Dakota |
Anthony James Moore, Bismarck, ND, pro se.
Jean R. Mullen, Attorney General's Office, Bismarck, ND, for Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court are (1) Plaintiff Anthony James Moore's Motion for Summary Judgment filed on December 19, 2006; and (2) Defendant Timothy Schuetzle's Motion for Summary Judgment filed on April 19, 2007. A response to the Plaintiffs motion was filed by Schuetzle on April 13, 2007, and a response to the Defendant's motion was filed by Moore on April 24, 2007. For the reasons set forth below, the Defendant's motion for summary judgment is granted and the Plaintiffs motion for summary judgment is denied.
The plaintiff, Anthony James Moore, is an inmate at the North Dakota State Penitentiary (NDSP) in Bismarck, North Dakota. On October 2, 2006, Moore filed a pro se complaint alleging that the Warden of the North Dakota State Penitentiary, Timothy Schuetzle, and the Fargo Police Department had violated his civil rights pursuant to 42 U.S.C. § 1983. See Docket No. 2. On October 10, 2006, Moore filed an amended complaint and sought to include a claim against an agent of the North Dakota Bureau of Criminal Investigation (BCI). See Docket No. 3. On November 13, 2006, Moore sought to again amend the complaint to add another claim against Schuetzle for opening Moore's legal mail and to bring a new claim against the United. States Postal Service. See Docket No. 16. The Court severed the two claims against the BCI agent and the Fargo Police Department, denied the motion to amend the complaint to join the United States Postal Service as a defendant, and granted the motion to bring a fourth claim against Schuetzle. See Docket No. 26. On December 19, 2006, Moore filed a second amended complaint along with a motion for summary judgment. See Docket Nos. 33 and 34. On April 19, 2006, the Defendant filed a motion for summary judgment and on April 20, 2007 filed an amended motion for summary judgment. See Docket Nos. 65 and 70.
The Department of Corrections has issued an Inmate Handbook to each inmate at the North Dakota State Penitentiary. See Docket No. 61-1, ¶ 5. The Inmate Handbook provides the procedures that an inmate must follow to file a grievance. See Docket No. 61-22. The procedures require an inmate to initially attempt to resolve the grievance informally by talking to the individual or individuals who are the subject of the grievance or control the remedy for the grievance. If the attempt to informally resolve the problem is not successful, the inmate can file a "Step One Grievance" within fifteen (15) days of the alleged incident. The grievance form is submitted to the inmate's case manager who investigates the grievance and responds to the inmate. If the inmate is not satisfied with the response from the case manager, the inmate can appeal to the warden in a "Step Two Grievance." If the inmate is not satisfied with the warden's response, the inmate may appeal to the Director of the Department of Corrections and Rehabilitation.
The grievance procedure also provides that a grievance may be submitted directly to the director of the Department of Corrections and Rehabilitation if the grievance is of a particularly sensitive nature or may cause the inmate to fear possible adverse effects if it is known in the institution that the inmate filed the grievance. On March 14, 2003, Warden Schuetzle restricted Moore's future use of the grievance process by limiting him to the filing of one grievance per week. See Docket No. 61-2.
Moore has alleged four claims: (1) that his confinement in administrative segregation violates his Eighth Amendment rights; (2) that prison officials have used excessive force in violation of his Eighth Amendment rights; (3) that prison officials have retaliated against him for participating in the prisoner grievance system; and (4) that prison officials have opened his legal mail outside of his presence. Each claim will be addressed in turn.
Moore was placed at the North Dakota State Penitentiary on January 29, 2002, as a result of a state conviction of gross sexual imposition, with force. See Docket No. 61. Since his arrival at, the NDSP, Moore has been a difficult prisoner and has been placed in administrative segregation on nine separate occasions because of his inability to control his behavior. Id. ¶ 4. On September 22, 2006, Moore was placed in administrative segregation and has remained there since September 2006, because of his apparent inability to satisfy the behavior requirements, for his return to the general population.
In his affidavit, Moore provides that he "is currently in tremendous Pain and suffering in my knees. pain in back and In entire physical body." See Docket No. 64 (errors in original). Moore contends that he has "Degenerated and deteriorated physically due to Being in administrative segregation inactive 23 Hours out of a 24 hour period day." Id. (errors in original).
On October 9, 2006, Moore was disciplined for writing a sexually harassing letter to a female correction officer. See Docket No. 61-16. Moore appealed the disciplinary action to the warden by filing a "Step Two Grievance." In his grievance, Moore made no mention of the underlying offense or sanction, but instead complained of his placement in administrative segregation. Moore wrote that his placement in administrative segregation "causes physical pain, suffering and degeneration and deterioration being inactive 23 hours out of a 24 hour period day." Id. In addition, Moore stated "[t]hese are atypical and significant hardship in relation to the ordinary incidents of the prisoner's life." Id.
On October 26, 2006, Moore sent a letter to Leann Bertsch, the Director of the Department of Corrections and Rehabilitation, requesting that he be released from administrative segregation. See Docket No. 61-3. In his letter, Moore stated that "[w]hile in Administrative Segregation Department prisoners obviously degenerate and deteriorate physically and mentally and suffer in tremendous daily pain from being inactive 23 hours out of a 24 hour period day." Id.
On October 30, 2006, Director Bertsch responded and stated that Moore would be reviewed for release from administrative segregation in accordance with prison policies. Id. at 4. After receiving the denial, Moore chose to bypass the grievance procedure and again sent a grievance directly to Director Bertsch claiming that, because it was a sensitive nature, he could not go through the regular procedures. Id. at 5. In this grievance, Moore again stated that prisoners, "while in administrative segregation degenerate and deteriorate physically, mentally, emotionally and suffer in pain being inactive 23 hours out of a 24 hour period day." Id. Director Bertsch rejected Moore's attempt to bypass the grievance procedures, noting that the subject of the grievance was not of a sensitive nature and she did not believe the "issue would cause adverse results if known in the institution and do not find that it is necessary to file directly to me." Id. at 6.
Inmates placed in administrative segregation receive one hour per day of outdoor recreation for five days per week. See Docket No. 68, ¶ 4. In addition, Moore can leave his cell to take three 15-minute showers per week, to meet with the law librarian on the administrative segregation unit, to go to the infirmary for medical treatment, to make telephone calls, and to have his hair cut. Id. at ¶ 9. Many inmates housed in administrative segregation spend a number of hours per day exercising, including yoga, jumping jacks, sit-ups, weight lifting (using books as weights), and running in place. Id. at ¶ 8.
Moore contends that the correctional officers at the NDSP have used excessive force when applying and removing handcuffs. Moore states that when the "employees escort the plaintiff anywhere they purposely place and remove the handcuffs as an attempt to break the plaintiffs wrist that v causes serious injury and sever pain and suffering, ... that the plaintiffs wrist have been seriously injured and are in severe pain." See Docket No. 35 (errors in original). Moore further provides:
the plaintiff has complained to the north dakota state penitentiary administrative segregation employees and officials of the administrative segregation employees attempting to break his wrist upon the placement and removal of handcuffs on or off the plaintiff that have they have done absolutely nothing about the complaints from the plaintiff or of the complaint and documentation of pain and suffering.
Id. (errors in original).
On March 13, 2006, Moore filed a grievance claiming that two correctional officers used excessive force in removing his handcuffs through the slot in his administrative segregation cell door.1 See Docket No. 61-4. In the response to Moore's "Step One Grievance," Moore was informed that the officers had placed the cuffs on with the key holes facing up the arm, which is standard procedure for transports. Id. Because the key holes faced up the arm, the officers had to twist the cuffs to reach the key hole. Id. Moore failed to report this injury to the' officer working that day or to the medical staff who were on the unit and saw him that day. Id.
On March 20, 2006, Moore filed another grievance in which he claimed the staff used excessive force. See Docket No. 61-5. Moore contends that correctional officer Jason Banks ...
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