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Kemp v. Black Hawk County Jail

United States District Court, N.D. Iowa, Eastern Division

February 13, 2017

JEFFERY ANTIONE KEMP, Plaintiff,
v.
BLACK HAWK COUNTY JAIL, TONY THOMPSON, WARDEN OF BLACK HAWK COUNTY JAIL, MARK HERBST, BRAD WALZ, WATERLOO POLICE DEPARTMENT, ANDREA FRANA, BILL HERKELMAN, ADAM LIDDLE, KYE RICHTER, NICHOLAS SADD, BRICE LIPPERT, DAVID MCFARLAND, CHRIS GERGEN, MICHAEL RASMUSSEN, ERYN HAGEMAN, KERRY DEVINE, GREG FANGMAN, MELISSA LUDWIG, Defendants.

          ORDER

          LINDA R. READE, UNITED STATES DISTRICT JUDGE

         TABLE OF CONTENTS

         I. INTRODUCTION ...................... 2

         II. PROCEDURAL HISTORY ......................2

         III. NON-DISPOSITIVE MOTIONS ...................3

         IV. SUMMARY JUDGMENT STANDARD ....................3

         V. RELEVANT FACTUAL BACKGROUND ..................5

         VI. ANALYSIS ................................8

A. Civil Rights Claims under 42 U.S.C. § 1983 ................. 8
B. Failure to Properly Respond ...................10
C. Plaintiff's Claims .......................12
1. Exhaustion of Administrative Remedies ...............12
2. Nature of Claims .....................15
3. Pretrial-Detention Conditions: Privacy Claims, Cell Restriction Claims & Exposure to Floor Stripping Agent Claim ..................16
4. Other Argument ....................23
5. Due Process Claim Against Remaining Defendants .......24

         VII. CONCLUSION ...........................25

         I. INTRODUCTION

         The matter before the court is the motion for summary judgment (docket no. 19) filed by the Black Hawk County Jail, Tony Thompson, Warden of Black Hawk County Jail and Mark Herbst (collectively, “Jail Defendants”). Proceeding pro se, the plaintiff filed a response (docket no. 21). Along with his response, the plaintiff submitted an appendix (docket no. 21-1), which included an affidavit of Matt Tarkett and documents associated with the plaintiff's state court criminal case. The Jail Defendants filed a reply (docket no. 22). The plaintiff filed a sur-reply (docket no. 23). Subsequently, the Jail Defendants filed a motion to amend/correct their appendix in support of their motion for summary judgment (docket no. 24), and the plaintiff filed a motion to supplement his response (docket no. 25). Neither party requested oral argument, and, in any event, oral argument is not necessary. The motion for summary judgment and other pending motions are fully submitted.

         II. PROCEDURAL HISTORY

         The plaintiff commenced this lawsuit on November 6, 2015. As directed by the court, the clerk's office filed the plaintiff's original complaint (docket no. 8) on February 5, 2016. And, consistent with the court's February 5, 2016 order and March 9, 2016 order, the plaintiff filed an amended complaint (docket no. 12). He also filed a motion to appoint counsel (docket no. 13), which the court denied (docket no. 14). In his amended complaint, the plaintiff asserts that: (1) Waterloo police officers investigating a robbery included incorrect statements in their reports, and, as a result, he was detained at the Black Hawk County Jail; (2) he was strip searched after arriving at the Black Hawk County Jail; (3) his cells had video cameras and, while using the toilet, individuals could see his private parts; (4) for several days, he was only able to access personal items, such as soap, a toothbrush, toothpaste, a bible or legal mail, outside of his cell for one hour each day; and (5) Tony Thompson ordered deputies to strip and buff the floor and, when doing so, they negligently used a stripping agent and failed to ventilate the area. The Jail Defendants filed an answer (docket no. 17), and, shortly thereafter, the Jail Defendants filed their motion for summary judgment. In relation to the Jail Defendants' motion for summary judgment, the parties filed additional documents and motions.

         III. NON-DISPOSITIVE MOTIONS

         The plaintiff does not resist the Jail Defendants' inclusion of additional materials in their appendix, and the Jail Defendants do not resist the plaintiff's additional statements in support of his response. Accordingly, the Jail Defendants' motion to amend/correct their appendix in support of their motion for summary judgment (docket no. 24) and the plaintiff's motion to supplement his response (docket no. 25) are granted.

         IV. SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); accord Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). “A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case.” Amini v. City of Minneapolis, 643 F.3d 1068, 1074 (8th Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986)).

         “The movant ‘bears the initial responsibility of informing the district court of the basis for [his or her] motion, ' and must identify ‘those portions of [the record] . . . which [he or she] believes demonstrate the absence of a genuine issue of material fact.'” Torgerson, 643 F.3d at 1042 (second and third alterations in original) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)); see also Fed. R. Civ. P. 56(c)(1)(A) (emphasizing that a motion must be supported by “the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials”). Once the movant has done so, “the nonmovant must respond by submitting evidentiary materials that set out ‘specific facts showing that there is a genuine issue for trial.'” Torgerson, 643 F.3d at 1042 (quoting Celotex Corp., 477 U.S. At 324).

         When doing so, “[t]he nonmovant ‘must do more than simply show that there is some metaphysical doubt as to the material facts' . . . .” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “To survive a motion for summary judgment, the [nonmovant] must substantiate his [or her] allegations with sufficient probative evidence [that] would permit a finding in [his or her] favor based on more than mere speculation, conjecture, or fantasy.” Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 801 (8th Cir. 2011) (third alteration in original) (internal quotation marks omitted) (quoting Putman v. Unity Health Sys., 348 F.3d 732, 733-34 (8th Cir. 2003)). The nonmovant cannot simply rely on unsupported “self-serving allegations and denials . . . to create a genuine issue of material fact.” Anuforo v. Comm'r of Internal Revenue, 614 F.3d 799, 807 (8th Cir. 2010); accord Wilson v. Miller, 821 F.3d 963, 970 (8th Cir. 2016). The nonmovant must substantiate factual allegations with independent documentary evidence. See Argenyi v. Creighton Univ., 703 F.3d 441, 446 (8th Cir. 2013). Hence, ...


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