United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
E. RAU UNITED STATES MAGISTRATE JUDGE.
above-captioned case comes before the undersigned on
Plaintiff's Motion for Order for Protection [and] Order
to Show Cause for Protection, (ECF No. 30), Defendants
Casalenda, Costello, and Zacharias' Motion for Summary
Judgment, (ECF No. 42), and Defendants Casalenda, Costello,
and Zacharias' Motion to Strike Plaintiff's Amended
Complaint, (ECF No. 48). This matter was referred for the
resolution of pretrial matters pursuant to 28 U.S.C. §
636 and District of Minnesota Local Rule 72.1. (ECF No. 20).
For the reasons stated below, the Court recommends that
Defendants' Motion for Summary Judgment be granted,
Defendants' Motion to Strike Plaintiff's Amended
Complaint be denied, Plaintiff's motion be denied, and
this matter be dismissed with prejudice.
initiated suit on July 20, 2018. (Compl., ECF No. 1).
Plaintiff is committed to the Minnesota Correctional Facility
at Oak Park Heights through the Minnesota Department of
Corrections (DOC). (Compl., at 3-4). Plaintiff brings a
§ 1983 civil rights action, asserting violations of his
Fourth, Eighth, and Fourteenth amendment rights. (Compl., at
allegations all appear to stem from a “verbal
altercation” on June 14, 2018. (Compl., at 5).
Plaintiff claims Defendant Casalenda “wrote a false
report” stating Plaintiff refused to pull his hands
from the cuffing post and that Defendant Casalenda also tried
to “kick or slam [Plaintiff's] cuffing post really
hard.” (Compl., at 5, 7). Plaintiff claims Defendant
Zacharias said “let's slam his [Plaintiff's]
hands” and bent Plaintiff's right hand
“causing unnessry [sic] pain.” (Compl., at 7).
Plaintiff also claims Defendant Zacharias violated his rights
“by placing his hand on my buttcheek, spreading my anus
open when he and other officers already did a strip search
when I arrived at intake.” (ECF No. 1, at 8). Plaintiff
claims Defendant Costello “didnt [sic] try to stop
staff when they were slamming my hands in the cuffing
post” despite being the supervisor at the time.
(Compl., at 7). Plaintiff claims Defendant Costello's
failure to intervene “cause[d] my hand to be swollen
and bruise[d].” (ECF No. 1, at 7).
claims he is “not allow[ed] to grievance the matter but
I did pleaded not guilty and appeal and explain my complaint
and I inform the warden of this matter and the captain review
the incident.” (Compl., at 3). Plaintiff attached to
his complaint his communication with Captain Matthews on the
incident and a notice of appeal of a disciplinary hearing on
June 21, 2018. (ECF No. 1, Ex. 2). There is nothing in the
record on any other administrative remedies Plaintiff
also submitted an amended complaint adding defendants and
allegations. (Amend. Compl., ECF No. 40). Defendants moved to
strike Plaintiff's amended complaint for failure to
comply with the Federal Rules of Civil Procedure and the
Court's scheduling order. (ECF No. 48). This Court
addresses the amended complaint alongside Plaintiff's
amended complaint, Plaintiff adds Defendants Derek Magel,
Irene Tuschner, John Ricci, and James Frick. Plaintiff claims
Defendant Magle “kick[ed] the cuff post in ACU cell 129
to . . . hurt my hand.” (Amend. Compl., at 4).
Plaintiff claims Defendant Costello was the supervising
officer and allowed this to happen. (Amend. Compl., at 4).
Plaintiff claims Defendant Ricci “slam[med] my hand in
the cuffing” which caused Plaintiff's hand to hurt
and swell up. (Amend. Compl., at 4). Plaintiff also claims
Defendant Frick told Defendant Magle to slam Plaintiff's
hands and that Defendant Frick performed an unclothed body
search on Plaintiff. (Amend. Compl., at 5). Plaintiff alleges
Defendant Tuscher “refuse[d] to treat my hand [and] she
stated its [sic] not that bad and walk [it] off.”
(Amend. Compl., at 4). It appears these allegations arose
from the initial verbal altercation described in
Plaintiff's initial complaint.
his initial complaint and amended complaint, Plaintiff
requests relief of $30, 000 and criminal charges for the
officers who slammed his hands in the cuffing post.
(See Compl., at 10; Amend. Compl., at 6). In
Plaintiff's initial complaint, he also requested a
“change [in] the policies to allow offender's [sic]
to have fair hearing and holding officers accountable for
their actions it is [sic] unprofessional.” (Compl., at
MOTION FOR SUMMARY JUDGMENT
judgment is appropriate where no genuine issue of material
fact exists and the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c). The movant has the burden
of demonstrating that no genuine issue of material fact
remains to be decided. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). When a motion for summary judgment has
been made and supported by the pleadings and affidavits, the
burden shifts to the party opposing the motion to demonstrate
that a disputed issue of material fact remains.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986).
deciding a motion for summary judgment, courts liberally
construe pro se pleadings and hold them to a less stringent
standard than those drafted by attorneys. Haines v.
Kerner, 404 U.S. 519, 520 (1972). Nevertheless, a pro se
plaintiff's claims cannot survive a motion for summary
judgment unless the plaintiff sets forth specific facts
demonstrating that there is a genuine issue for trial.
Quam v. Minnehaha Cnty. Jail, 821 F.2d 522 (8th Cir.
1987). Mere allegations and conclusory statements are
insufficient to withstand a motion for summary judgment.
Dunavant v. Moore, 907 F.2d 77, 80 (8th Cir. 1990).