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Smuda v. Stewart

United States District Court, D. North Dakota

June 29, 2016

Richard Allen Smuda, Plaintiff,
v.
Darin Ray Stewart (C.O.), et. al., Defendants.

          Richard Allen Smuda, Plaintiff, Pro Se.

          C.O. Darin Stewart, Defendant, represented by Douglas Alan Bahr, ATTORNEY GENERAL'S OFFICE.

          C.O. Timothy Sybrant, Defendant, represented by Douglas Alan Bahr, ATTORNEY GENERAL'S OFFICE.

          C.O. Chelsea Kopp, Defendant, represented by Douglas Alan Bahr, ATTORNEY GENERAL'S OFFICE.

          C.O. Cody Dengel, Defendant, represented by Douglas Alan Bahr, ATTORNEY GENERAL'S OFFICE.

          C.O. Cody Moses, Defendant, represented by Douglas Alan Bahr, ATTORNEY GENERAL'S OFFICE.

          REPORT AND RECOMMENDATION

          CHARLES S. MILLER, Jr., Magistrate Judge.

         Before the court is a "Motion for Summary Judgment" filed by the defendants. Judge Hovland has referred the motion to the undersigned for preliminary consideration.

         I. BACKGROUND

         A. Procedural history

         The plaintiff, Richard Allen Smuda ("Smuda"), is an inmate at the North Dakota State Penitentiary ("NDSP"). He initiated the above-entitled action pro se . (Doc. No. 6). Following an initial screening pursuant to 28 U.S.C. § 1915A, the court allowed him to proceed with claims of excessive force against defendants Stewart, Sybrant, Kopp, Dengel, and Moses in their individual capacities for an incident that occurred on November 11, 2014. (Doc. No 8). Defendants have filed a Motion for Summary Judgment seeking dismissal on the grounds that the force that was used was appropriate under the circumstances. They also seek dismissal on grounds of qualified immunity. (Doc. No. 30). Smuda filed a response that was followed by defendants' reply. (Doc. Nos. 32-33).

         B. Relevant facts

         Except as otherwise stated, the following facts have either not been properly controverted by Smuda or have been construed in his favor.

         1. Defendants' account of the November 11, 2012, incident

         Defendants have filed affidavits setting forth their accounts of what took place on the day in question. (Doc. Nos. 31-1 through 31-5). These accounts are generally consistent with each other as well as consistent with accounts given in memoranda and reports prepared by one or more of defendants immediately following the incident and later in prison disciplinary proceedings initiated against Smuda. (Doc. Nos. 31-7 through 31-14). In addition to these affidavits, memoranda, and reports, defendants have submitted photographs of what appears to be a small cut and dried blood behind Smuda's right ear and minor bruising on Smuda's body. (Doc. No. 31-13).

         Defendants have described the events giving rise to Smuda's claims of excessive force as follows. Stewart was working in the NDSP's West Unit on November 11, 2012. At approximately 5:08 pm., while en route to "door 10 to search inmates before they returned to their units after visits, " Stewart encountered Smuda, who muttered something about a missing laundry cart. When asked by Stewart to repeat himself, Smuda responded with an expletive. Stewart ordered Smuda to immediately return to his cell to be secured for the evening. When Smuda asked why he was being secured, Stewart responded that he had been insolent to staff and disobeyed a direct order. Stewart radioed Case Worker Yarbrough to advise that Smuda needed to be secured and then left to conduct his searches. (Doc. No. 31-4).

         Upon completing his searches, Stewart returned to the West Unit Office. Standing with his back to the door, Stewart heard Smuda's voice from behind him inquire why Smuda was being secured. Turning, Stewart observed Smuda "standing in the office doorway, red-faced and shaking his fists balled up." Stewart twice ordered Smuda to return to his cell. Each time, Smuda simply repeated his inquiry in a louder voice. (Id.).

         Stewart contacted the Lieutenant to request his presence at the West Unit Cell House. Smuda stated "you're going to need more guys then just him" as he stepped out of the office and into the hallway towards the soda ...


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