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Hart v. Bertsch

United States District Court, D. North Dakota

May 9, 2016

William Jude Hart, Plaintiff,
v.
Leann K. Bertsch, et. al., Defendants.

          REPORT AND RECOMMENDATION RE PENDING MOTIONS

          CHARLES S. MILLER, Jr., Magistrate Judge.

         I. BACKGROUND

         A. Procedural background

         Plaintiff, 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.

         Hart alleged in his complaint a single claim of racial discrimination and sought only declaratory relief. In relevant part, Hart alleged the following:

         V. 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.
. * * * *

         VI. Relief

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).

         Hart 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.

         Following an initial screening of the complaint pursuant to 28 U.S.C. § 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:

         V. 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.

(Id.).

         Following 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).

         Giving 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."

         See, 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).

         Pending 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.

         There 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).

         B. Factual background

         The following facts appear to be undisputed or, for purposes of the pending motions, favor Hart.

         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.

         According 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:

         The following is stated from Policy Number 14A-2, Page 2, Number 4 D:

"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."

         The following is stated from Policy Number 12A-3, Page 2, Number 5 D:

"Inmates must be in compliance with all rehabilitation recommendations for:
A. Education
B. Treatment
C. Medical and Psychiatric
D. Contracts with housing units
You may apply at RRI once you have complete your GED
Bruce Korte

         (Doc. No. 38-3) (Korte's name and "RRI" were handwritten). Defendants have not contested the authenticity of this communication.

         Hart 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 circumstances."

         Hart 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 unknown.[1]

         Defendant Gardner replaced Fracassi as the Director of RRI in 2011, making him the Director in 2012 when Hart's application for reemployment was denied.

         II. HART'S CLAIM OF RACIAL DISCRIMINATION

         A. Introduction

         Hart 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.

         Plaintiff's complaint clearly pleads a claim of intentional discrimination based upon 42 U.S.C. § 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. § 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 § 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 ...


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