Dunkelberger v. Story et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JASON DUNKELBERGER, 4:20-CV-04086-LLP
Plaintiff,
vs.
JOHN STORY,STATE MACHINE SHOP
SUPERVISOR AT SD STATE
PENITENTIARY;IN HIS INDIVIDUAL AND
OFFICAL CAPACITY; MARCUS
DITSWORTH,STATE,TEMP.SUPERVISOR
AT SDSP MACHINE SHOP;IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY,
ORDER DENYING PLAINTIFF'S MOTION
FOR RECONSIDERATION
Defendants.
Plaintiff, Jason Dunkelberger, filed a pro se lawsuit under 42 U.S.C. § 1983, alleging that
he was injxued when using a metal shear in the South Dakota State Penitentiary machine shop.
Doc. I. This Court screened Dunkelberger's complaint, dismissing it in part and directing service
upon defendants in part. Doc. 6. Specifically, Dunkelberger's Eighth Amendment failure to
protect claim against John Story and Marcus Ditsworth in their individual capacities and in their
official capacities for injunctive relief survived § 1915A screening, and his remaining claims
were dismissed. Id at 7. This Court granted defendants' motion for summary judgment,and
judgment was entered in favor of defendants and against Dunkelberger on July 20,2022. Docs.
35, 36. Dimkelberger now moves for reconsideration of that order and judgment. Doc. 37.
The Eighth Circuit Court of Appeals has traditionally "instructed courts to consider
[motions for reconsideration] either under Rule 59(e)or Rule 60(b)." See Moberly v.
MidcontinentCommc'n, Civ. 08-04120, 2010 WL 11681663, at *1, 2010U.S. Dist. LEXIS
1
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156292, at *1 (D.S.D. Aug.2, 2010)(citation omitted). Rule 60(b) authorizes a court to relieve a
party from a final judgment under the following circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect;(2) newly discovered
evidence that, with reasonable diligence, could not have been discovered in
time to move for a new trial imder Rule 59(b);(3)fraud(whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;(4)
thejudgment is void;(5)the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or(6)any other reason that justifies relief.
Fed. R. Civ. P. 60(b)(l)-(6). Dunkelberger argues that five genuine issues of material fact remain
in this case that should have prevented this Court from granting summary judgment in favor of
defendants. Doc. 37 at 1-2. He raises an additional issue offact in his reply to defendants'
response to his motion for reconsideration. Doc. 39 at 2.
Dunkelberger claims that he and the defendants dis^ree as to the warning signage on the
metal shear on the day of the accident. Doc. 37 at 1. He claims that defendants must have known
that he was using the metal shear because the supervisor's office was less than 20 feet from the
shear and had windows that looked onto the shop floor. Id. He claims that defendants added a
warning label to the machine after the accident, showing that they knew of the danger and
refused to address it. Id Dunkelberger alleges that "[i]t should always be the responsibility of
supervisors to train employees on the use of dangerous equipment" and that this should not be
left to inmates, especially when working with older equipment such as the metal shear. Id. He
alleges that, as an inmate at the South Dakota State Penitentiary, he did not have the same
freedom to decline dangerous work as he would have in the "free world[.]" Id. at 1-2. In his
reply, Dunkelberger claims that defendants have "deceptively enter[ed] a copy of a photo that
was taken well after the incident" in order to show that a safety guard was in place that
Dunkelberger alleges was not in place at the time ofthe accident. Doc. 39 at 2.
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Because Dunkelberger argues that defendants have misrepresented facts in this case, his
motion fails under Rule 60(b)(3). To prevail under Rule 60(b)(3), the moving party must show
that the nonmoving party "engaged in fraud or other misconduct and that this conduct prevented
[the moving party] from fully and fairly presenting its case." In re Levaquin Prods. Liab. Litig.,
739 F.3d 401,404(8th Cir. 2014)(quoting E.F. Hutton & Co. v. Berns, 757 F.2d 215, 216-17
(8th Cir. 1985). The only other potentially applicable circumstance here is "any other reason that
justifies relief." See Fed. R. Civ. P. 60(bX6). To obtain relief under Rule 60(b)(6), a party must
show that "exceptional circumstances...denied the moving party a full and fair opportunity to
litigate his claim and ... prevented the moving party from receiving adequate redress." Harley v.
Zoesch,413 F.3d 866, 871 (8th Cir. 2005)(citation omitted). Rule 60(b) motions cannot be used
to"'introduce new evidence that could have been adduced during pendency' ofthe motion at
issue[,]...to 'tender new legal theories[,]'"or to reargue "on the merits." Arnold v. ADT Sec.
Servs.. Inc., 627 F.3d 716, 721 (8th Cir. 2010)(quoting Hagerman v. Yukon Energy Corp.,839
F.2d 407,414(8th Cir. 1988))(first quoted material); v. Norris, 193 F.3d987,990
(8th Cir. 1999)(second quoted material).
To prevail on an Eighth Amendment claim for failure to protect,"a plaintiff must show
that a defendant was personally involved in the alleged deprivation of rights and deliberately
interferedvAxh those rights." Kenyon v. Dooley,2014 WL 3700878, at *3, 2014 U.S. Dist.
LEXIS 101673, at *10(D.S.D. July 25, 2014)(citing DuBois v. Dooley,111 F. App'x 651,652
(8th Cir. 2008)). To establish deliberate interference, a plaintiff"must show both an objective
element, that the deprivation was sufficiently serious, and a subjective element, that the
defendant acted with a sufficiently culpable state of mind."Id (quoting Coleman v. Rabija, 114
F.3d 778,784(8th Cir. 1997)).
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A prison official's failure to act despite knowledge ofthe risk to an inmate can amount to
deliberate indifference. See Farmer v. Brennan, 511 U.S. 825,847(1994); Coleman, 114 F.3d at
786 (citing Farmer,511 U.S. at 842). To show deliberate indifference, an inmate must
demonstrate that a prison official knew the "inmate face[d] a substantial risk ofserious harm and
disregard[ed] that risk by failing to take reasonable measures to abate it." Kenyan, 2014 WL
3700878, at *3,2014 U.S. Dist. LEXIS 101673, at *10 (alterations in original)(quoting
Coleman, 115 F.3d at 785). Mere negligence does not constitute deliberate indifference. Warren
V. Missouri, 995 F.2d 130,131 (8th Cir. 1993). The Eighth Circuit has applied the deliberate
indifference standard to claims ofimsafe prison working conditions. Ambrose v. Young,474 F.3d
1070,1076(8th Cir. 2007)."In the prison work assignment context, prison officials are
deliberately indifferent when they knowingly compel 'an inmate to perform labor that is beyond
the inmate's strength, dangerous to his or her life or health, or unduly painful.'"Id. at 1077
(quoting S'awc/iez V. Taggart, 144 F.3d 1154, 1156(8th Cir. 1998)).
This Court found that Dunkelberger could not meet the standard ofAmbrose because he
could not show that defendants knowingly compelled him to perform dangerous work. See Doc.
35 at 5-9. Story and Ditsworth were not aware of Dunkelberger's lack of training with the metal
shear and thus could not be deliberately indifferent to the risk posed to Dunkelberger by his use
of the metal shear. Id. at 6. Further, although Dunkelberger also alleged that defendants were
deliberately indifferent to the risk posed by placing inmate Troy Hause in a supervisory position,
this Court found that neither Story nor Ditsworth "knew that Hause would direct [Dunkelberger]
to use a machine he was not trained on or otherwise had knowledge that placing Hause in charge
would expose Dunkelberger to a substantial risk ofserious harm."Id. at 7(citing Doc. 25-4 at 2-
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5). Thus,this Court found that while Dunkelberger was compelled to do dangerous work, he was
not knowingly compelled to do so by Ditsworth or Story. Id.
Here, Dunkelberger cannot prevail under Rule 60(b)(3) because the alleged
misrepresentations did not prevent him from fully and fairly presenting his case. See In re
Levaquin Prods. Liab. LUig.y 739 F.3d at 404 (citing E.F. Hutton & Co., 757 F.2d at 216-17).
Dunkelberger claims that defendants have misrepresented the presence of warning signage and a
safety guard. Doc. 37 at 1; Doc. 39 at 2. But this Court's ruling did not rely on these
representations and instead found that defendants were not aware of the risk posed to
Dunkelberger. See Doc. 35 at 5-9. In Kulkay v. Roy,the Eighth Circuit found that "[t]he absence
of certain safety equipment or training and the occurrence of similar injuries" did not render
defendants deliberately indifferent because they did not have "knowledge ofthese conditions or
the risk of harm they represent[ed]." 847 F.3d, 637,644(8th Cir. 2017). Even had the plaintiff in
Kulkay been assigned to use a machine lacking safety guards without formal training, he still had
to show that defendants had actual knowledge of the risk. Id. In granting summary judgment to
defendants, this Court foimd that Dunkelberger failed to show that defendants actually knew of
the risk posed to him by the metal shear. Doc. 35 at 7. Thus, his motion for reconsideration fails
under Rule 60(b)(3).
Dunkelberger fails to show the exceptional circumstances required under Rule 60(b)(6).
Dunkelberger now claims that it would have been impossible for defendants to not be aware that
he was using the metal shear because the shear is less than 20 feet from the supervisor's office
windows that look out onto the shop floor. Doc. 37 at 1. But he failed to make this allegation
prior to his motion for reconsideration,S'ee Doc. 1 at 5-11; Doc. 29 at 1-2; Doc. 30 at 1-9, and he
makes no showing that the layout ofthe machine shop and the visibility of the metal shear from
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the supervisor's office are "newly discovered evidence" that could not have been discovered
prior to this Court'sgrant ofsummary judgment to defendants. /IrnoW,627 F.3dat 721
(quoting Hagerman,839 F.2d at 414); Doc. 37 at 1. Thus, he fails to allege "exceptional
circumstances" that denied him "a full and fair opportunity to litigate his claim" as required
under Harley. See 413 F.3d at 871 (citation omitted). Further, he does not allege that either
defendant was aware that he was using the metal shear at the time of the accident, only that they
should have been aware based on the proximity ofthe metal shear to the supervisor's office. See
Doc. 37 at 1; Doc. 39 at 2.
Dunkelberger's remaining claims also fail to show the exceptional circumstances
required by Harley. See 413 F.3d at 871 (citation omitted). This Court noted that the parties
disagreed as to the extent of the warning signage present at the time ofthe accident and that
additional signage was added after the accident in its order granting summary judgment to
defendants. Doc. 35 at 2-3. Dunkelberger claims that supervisors should always train employees
on the use of dangerous equipment. Doc. 37 at 1. This Court considered Dunkelberger's failure
to train or supervise claim, finding that Dunkelberger failed to show that"the training procedures
and supervision were inadequate and likely to result in a constitutional violation" because he
failed to show that defendants were aware of the risk posed by placing Hause in charge of the
machine shop. Doc. 35 at 8-9(quoting Tlamka v. Serrell, 244 F.3d 628,635(8th Cir. 2001)).
Dunkelberger also claims that he could not decline dangerous work as an inmate. Doc. 37 at 1-2.
But this Court agreed that Dunkelberger was compelled to perform dangerous work and foimd
that his claim failed because he could not show that either defendant knowingly compelled him to
work. Doc. 35 at 7. As above, Dunkelberger's claim that defendants misrepresented the presence
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of a safety guard on the metal shear fails because this Court's ruling did not rely on that
representation. See Doc. 35 at 5-9.
Nor is Duiikelberger afforded any relief under RtUe 59(e)."Motions under Rule 59(e)
'serve the limited function of correcting manifest errors of law or fact or to present newly
discovered evidence' and 'cannot be used to introduce new evidence, tender new legal theories,
or raise arguments which could have been offered or raised prior to entry ofjudgment.'"Ryan v.
Ryan, 889 F.3d 499,507(8th Cir. 2018}(quoting United States v. Metro. St. Louis Sewer Dist.,
440 F.3d 930,933(8th Cir. 2006)). As above, Dunkelberger's motion to reconsider fails under
Rule 59(e) because he only raises new arguments that "could have been offered or raised prior to
entry ofjudgment."See id. (quoting Metro. St. Louis Sewer Dist., 440 F.3d at 933).
Dunkelberger makes no showing of a manifest error oflaw or fact and presents no newly
discovered evidence that could not have been offered prior to entry ofjudgment. Thus, his
motion for reconsideration. Doc. 37, is denied.
Accordingly, it is ORDERED:
1. That Dunkelberger's motion for reconsideration. Doc. 37, is denied.
Dated this 15th day ofFebruary, 2023.
BY THE COURT;
idUJiiUiJL
jwrence L. Piersol
ATTEST: United States District Judge
MATTHEW W.THELEN,CLERK
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