United States District Court, D. North Dakota
REPORT AND RECOMMENDATION RE PENDING MOTIONS
CHARLES S. MILLER, Jr., Magistrate Judge.
William Jude Hart, is an inmate at the North Dakota State
Penitentiary ("NDSP"). He initiated this action on
February 6, 2014, with the submission of a pro se complaint
following the form prescribed by this court for prisoner
civil rights actions.
alleged in his complaint a single claim of racial
discrimination and sought only declaratory relief. In
relevant part, Hart alleged the following:
Statement of Claim
A. Claim No. 1: The North Dakota State Penitentiary and Rough
Rider Industries in violation of the 14th Amendment of the
United States Constitution (the Equal Protection Clause)
refuse to allow me to both work at Rough Rider Industries and
attend Read-Right Classes just as they allow other inmates to
do. This decision is based on Race.
. * * * *
This Court should declare the policy at the North Dakota
State Penitentiary allowing some inmates to be employed and
not have completed their educational requirements to be
equally applied, either everyone complies with the required
educational policy, or there should be waivers available to
anyone eligible, equal treatment, equal protection, not based
on race as it is now.
(Doc. No. 2).
named as defendants Leann K. Bertsch, Robin Schmalenberger,
Rick Gardner, and Bruce Korte, stating he was suing them in
their official and individual capacities. Bertsch is the
Director of the North Dakota Department of Corrections and
Rehabilitation (NDDOCR). Schmalenberger was the NDSP Warden
when this action was commenced, but she has since left this
position. Gardner is the Director of Rough Rider Industries
("RRI"), which is a division of the NDDOCR and
operates prison industries in several of North Dakota's
penal facilities including the NDSP. (Doc. No. 32-1, p.1).
Korte is the RRI's Penitentiary Industry Manager. (Id. at
p. 3). It is presumed from these job descriptions that Korte
is Gardner's subordinate and is the person directly
responsible for the RRI's activities at the NDSP.
an initial screening of the complaint pursuant to 28 U.S.C. Â§
1915A (Doc. No. 8), Hart responded to deficiencies noted in
the court's screening order by submitting a proposed
amendment to his complaint, which, in relevant part, alleges:
Statement of Claim:
A. Claim No. 1: During the Summer of 2013 the Plaintiff
applied for employment at Rough Rider Industries (RRI), the
industries program that is part of NDSP and the North Dakota
Department of Corrections and Rehabilitation (DOC&R). The
Plaintiff's application for employment was denied because
it was stated that he did not meet the criteria of having
received his high school diploma or GED as required to work
at RRI. The Plaintiff had previously worked at RRI and had
this requirement waived by the then director of RRI.
The Plaintiff was told that no inmates would be hired by
Bruce Korte that did not meet this educational requirement
and that the current director, Rick Gardner, would not waive
any inmates of this requirement.
The Plaintiff claims that this denial of employment was based
on race. The Plaintiff is Creole and when he worked at RRI
previously he complained about Bruce Korte and other
supervisors at RRI using the word "nigger" when
referring to black inmates. So the Plaintiff is being singled
out since there are currently non-minority inmates that are
allowed to both work at RRI and attend GED classes or
Read-Write classes which are taken as a prerequisite to the
actual GED class.
The Plaintiff is not asking for special treatment, only equal
treatment as guaranteed by the 14th Amendment of the United
States Constitution, under the Equal Protection Clause.
It is the Plaintiff's contention that Bruce Korte denied
his employment application at RRI because of his race and the
complaints he made during the four (4) years that he was
employed at RRI, that Rick Gardner, as director of RRI,
refuses to allow him the opportunity to be employed at RRI
while attending Read-Write classes because he is Creole, and
not white like the other inmates Mr. Gardner lets work while
attending either Read-Write or GED classes, Robin
Schmalenberger, as warden of NDSP has supervisory powers over
RRI is allowing these discriminatory practices by employees
under her supervision, and finally Leann Bertsch oversees the
entire DOC&R, including NDSP and RRI, refusing to require her
department to apply equal protection and treatment to inmates
of all races.
(Doc. No. 9). Also, Hart expanded his request for relief to
include injunctive relief, in addition to the request for
declaratory relief, stating:
VI. Relief. The Plaintiff asks this Court for a declaratory
judgment forcing the NDSP and it's RRI to treat it's
inmates equally and allowing the Plaintiff to work at RRI
while attending Read-Write classes, and there should be
injunctive relief granted stopping the practice of requiring
some inmates to have a GED before hiring them and waiving the
requirement for other inmates, allowing them to work at RRI
while attending pre-GED classes, making it's policy less
discriminatory against racial minorities. All inmates seeking
employment at RRI should be held to the same educational
standards regardless of race.
a further screening, the court determined it was not prepared
to conclude no claim for relief had been pled and ordered
service. (Doc. No. 11). The operative pleading is Hart's
initial complaint as supplemented by his "amendment,
" which collectively will be referred to as the
"amended complaint." (Doc. Nos. 2 & 9). See, e.g.,
Burns v. Morgan, 605 Fed.Appx. 596, 597 (8th Cir. 2015)
(unpublished per curiam).
Hart's amended complaint the liberal construction
required for pro se prisoner complaints, it makes two claims:
1. Hart was denied reemployment with RRI based upon
intentional racial discrimination.
3. Hart was denied reemployment by RRI in retaliation for
having complained about Korte and other RRI supervisors at
the NDSP making frequent derogatory racial slurs directed to
black inmates, including the use of the "N-word."
e.g., Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(per curiam) ("A document filed pro se is to be
liberally construed, ... and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers") (internal
quotation marks and citing authority omitted).
before the court now are two motions by defendants. The first
is a motion for summary judgment. (Doc. No. 31). The second
is a motion to dismiss claiming that developments subsequent
to the commencement of this action have mooted any claim that
Hart could make for declaratory and injunctive relief so that
now there is no case or controversy for the court to decide.
(Doc. No. 42). Whether coincidental or not, defendants'
second motion was filed after certain representations made by
defendant Gardner in support of the motion for summary
judgment proved to be untrue.
is also pending before the court a renewed motion by Hart to
appoint counsel. (Doc. No. 44). The court had earlier denied
without prejudice his two earlier requests for counsel. (Doc.
Nos. 20, 22, 33, & 36).
following facts appear to be undisputed or, for purposes of
the pending motions, favor Hart.
was employed by RRI at the NDSP for approximately four years
from 2007 until midway in 2012, when he was involved in an
incident of fighting for which he suffered 10-days
disciplinary detention and loss of his job at RRI. Some
months later Hart submitted an application to RRI asking to
be reemployed. Hart states this was in the summer of 2013
while defendants state it was in December 2012. For purposes
of the pending motions, it probably does not make a
difference, particularly if the motions are denied.
to Hart, his request for reemployment was turned down by
defendant Korte, the manager of RRI at the NDSP, because he
did not meet RRI's requirement that inmates working for
RRI must possess either a high school diploma or a GED unless
the educational requirement is waived for extraordinary
circumstances. Hart has submitted a copy of the communication
rejecting his application, which reads as follows:
following is stated from Policy Number 14A-2, Page 2, Number
"An inmate must have a high school diploma or GED to
eligible for placement in Rough Rider Industries. Exceptions
may apply in extraordinary circumstances, at the discretion
of the Director of Industries."
following is stated from Policy Number 12A-3, Page 2, Number
"Inmates must be in compliance with all rehabilitation
C. Medical and Psychiatric
D. Contracts with housing units
You may apply at RRI once you have complete your GED
No. 38-3) (Korte's name and "RRI" were
handwritten). Defendants have not contested the authenticity
of this communication.
claims that, when he first applied to work at RRI in 2007 and
was accepted, the Director of RRI at the time, Dennis
Fracassi, waived the educational requirement. Defendants
agree a waiver was given and have not claimed it was
improvidently granted. Given this, and Hart being entitled to
the presumption that RRI was following it own policies, it
will be assumed for purposes of what follows that the waiver
that was granted in 2007 was based on "extraordinary
further claims that the reason why he was given a waiver in
2007 was that prison officials recognized at the time that he
was not capable of meeting the educational requirement. Other
than acknowledging that a waiver was given, defendants have
remained studiously silent as to the actual reason for
Hart's 2007 waiver and whether this is because the reason
was never documented or because it is inconsistent with
positions later taken by defendants as detailed below remains
Gardner replaced Fracassi as the Director of RRI in 2011,
making him the Director in 2012 when Hart's application
for reemployment was denied.
HART'S CLAIM OF RACIAL DISCRIMINATION
contends that the real reason for imposition of the
educational requirement, despite it having been waived for
him previously and his having worked for RRI for almost four
years without a high school degree or GED, is that he was
discriminated against by defendants based on his race -
particularly by defendant Korte.
complaint clearly pleads a claim of intentional
discrimination based upon 42 U.S.C. Â§ 1983 and the Equal
Protection Clause. In addition, it would also be fair to
construe the complaint as encompassing a claim of intentional
racial discrimination pursuant to 42 U.S.C. Â§ 1981, which
prohibits racial discrimination in the making and enforcing
of contracts. Cf. Johnson v. City of Shelby, Miss., ___
U.S. ___, 135 S.Ct. 346 (2014) (reversing grant of
summary judgment because of plaintiff's failure to
specifically invoke Â§ 1983 in the complaint and stating:
"Federal pleading rules call for a short and plain
statement of the claim showing that the pleader is entitled
to relief, ' Fed. Rule Civ. Proc. 8(a)(2); they do not
countenance dismissal of a complaint for imperfect statement
of the legal theory supporting the claim asserted.");
Solomon v. Petray, 795 F.3d 777, 786 (8th Cir. 2015)
("When we say that a pro se complaint should be given
liberal construction, we mean that if the essence of an
allegation is discernible... then the district court should
construe the complaint in a way that permits the
layperson's claim to be considered within the proper
legal framework.' Stone v. Harry, 364 F.3d 912,
914 (8th Cir.2004)"). And, while there may not be any
substantive differences with respect to these two grounds for
relief in terms of a claim of intentional racial
discrimination, there may be differences with respect to
Hart's retaliation claim discussed later. For the same
reasons, plaintiff's complaint can also be ...