Ashton v. Moire et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Diego A. Ashton, )
) REPORT AND RECOMMENDATION
Plaintiff, ) AND ORDER
)
vs. ) Case No. 1:24-cv-193
)
Christ Momale Moire and Rhet Volk, )
)
Defendants. )
Plaintiff, Diego A. Ashton, an inmate at the North Dakota State Penitentiary (NDSP)
proceeding pro se, initiated this action on September 30, 2024, with the submission of a motion to
proceed in forma pauperis (IFP) and a Prison Litigation Reform Act packet. (Doc. Nos. 2, 3). The
Court granted Ashton IFP status and his complaint was filed. (Doc. Nos. 5, 7). District Judge
Daniel M. Traynor was assigned. (Doc. Nos. 8, 9).
The matter is before this Court for an initial review as mandated by 28 U.S.C. § 1915A and
Local Rule 72.1(B)(5). For the reasons discussed below, the Court recommends that Ashton’s
claims against the Defendants in their official capacities be dismissed without prejudice. The Court
concludes the individual capacity claims against the Defendants may proceed.
I. BACKGROUND
While an inmate at NDSP, Ashton asserts he was repeatedly assaulted by Correctional
Officer Christ Momale Moire on March 4, 2024. (Doc. No. 7 at 5). Ashton claims he was having
a psychological event in his cell when ICS was called.1 C.O. Moire and Sergeant Rhet Volk
responded to his cell. Id. Ashton alleges C.O. Moire repeatedly punched and kicked him in the
1 The Court recognizes the acronym “ICS” to refer to an incident command system within
a prison.
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head while Sgt. Volk held his arms down. Id. Ashton asserts Sgt. Volk failed to protect him from
C.O. Moire’s assault. Id. Ashton states the officials believed he was being non-compliant with
orders, but he was having psychological issues. Id. Ashton asserts claims of excessive use of force
and failure to protect in violation of his Fourth and Eighth Amendment rights. Id. Ashton seeks
monetary relief from Defendants in both their official and individual capacities. Id. at 3, 7.
Along with his complaint, Ashton submitted documents from the NDSP’s administrative
grievance process. (Doc. Nos. 7-1 through 7-4). Those documents reflect that an internal
investigation was conducted, “the individual responsible” was terminated from his employment at
NDSP, and the matter was referred to the State’s Attorney’s Office for potential criminal charges.
(Doc. No. 7-1).
II. STANDARD OF REVIEW
Under the Prison Litigation Reform Act (PLRA), a court must review any complaint in a
civil action brought by a prisoner against a governmental entity, officer, or employee. 28 U.S.C.
§ 1915(A). The court must identify any cognizable claims and dismiss any claim that is frivolous,
malicious, fails to state a claim, or seeks monetary relief from an immune defendant. See 28 U.S.C.
§ 1915A(b). The PLRA does not impose any heightened pleading requirements. To state a
cognizable claim, the complaint need only meet the requirements of Fed. R. Civ. P. 8(a)(2) that it
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam).
The court liberally construes a pro se complaint and holds it to a less stringent standard.
See, e.g., Federal Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008); Solomon v. Petray, 795
F.3d 777, 787 (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
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should construe the complaint in a way that permits the layperson’s claim to be considered within
the proper legal framework.”) (internal quotation marks omitted)). This does not mean that a pro
se litigant is excused from satisfying the plausibility standard established in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) (Twombly) and further amplified by the Supreme Court in
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (Iqbal). See Story v. Foote, 782 F.3d 968, 969 (8th Cir.
2015).
While the pleading requirements under Rule 8(a)(2) are not great, something more is
required than simply expressing a desire for relief and declaring an entitlement to it. See Twombly,
550 U.S. at 555 n.3. The complaint must “give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.” Id. at 555. Under the Twombly/ Iqbal plausibility standard,
the complaint must provide enough factual matter which, accepted as true, states a claim that is
plausible on the face of the allegations. A claim crosses the threshold when the factual allegations
do more than merely create a suspicion of a legally cognizable action and “raise a right to relief
above the speculative level[.]” Twombly, 550 U.S. at 555. Complaints that offer nothing more than
labels and conclusions or a formulaic recitation of the elements are insufficient. Twombly, 550
U.S. at 555; Iqbal, 556 U.S. at 680-81. Though a pro se litigant’s complaint is entitled to a liberal
construction, the minimal pleading requirements of Twombly/Iqbal must still be satisfied. E.g.,
Story v. Foote, 782 F.3d 968, 969 (8th Cir. 2015).
Determining whether a complaint states a plausible claim is a “context specific” task that
requires the court “to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those
facts is improbable, and ‘that a recovery is very remote and unlikely.’” Twombly, 550 U.S. at 556
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). A liberal construction of a pro se pleading
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does not require a court to supply missing facts from a complaint. See Stone v. Harry, 364 F.3d
912, 914 (8th Cir. 2004).
III. DISCUSSION
Ashton brings this suit under 42 U.S.C. § 1983. Section 1983 is not itself a source of
substantive rights. To adequately state a § 1983 claim, a plaintiff must allege facts showing (1) a
violation of a right secured by the Constitution or the laws of the United States and (2) the alleged
deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S.
42, 48 (1988); Walker v. Reed, 104 F.3d 156, 157 (8th Cir. 1997).
A. Official Capacity Claims
Ashton’s claims against the Defendants in their official capacities are barred by the
Eleventh Amendment. States and state agencies, like the DOCR, are not “persons” amenable to
suit under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). It is well settled
that a suit against a state employee in his or her official capacity is a suit against the state. See
Will, 491 U.S. at 71. Under the Eleventh Amendment, states are immune from suits for money
damages in federal courts absent a waiver of that immunity. Id. at 66; Kimel v. Florida Bd. of
Regents, 528 U.S. 62, 73 (2000). The State of North Dakota has not waived its Eleventh
Amendment immunity. See N.D. Cent. Code § 32-12.2-10. Because Ashton may not recover
money damages against a state employee in his or her official capacity, it is recommended his
claim for damages be dismissed against Defendants in their official capacities.
B. Individual Capacity Claims
Ashton also sues the Defendants in their individual capacities. This type of claim is
permissible under § 1983, provided a plaintiff states a plausible claim for a violation of his
constitutional or federal rights and alleges facts that tend to show each individual defendant was
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personally involved in the violation. See, e.g., Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir.
2011).
The Eighth Amendment’s cruel and unusual punishment clause governs a convicted
prisoner’s right to be free from the use of excessive force.2 Peterson v. Heinen, 89 F.4th 628, 634
(8th Cir. 2023). “After incarceration, only the unnecessary and wanton infliction of pain constitutes
cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S.
312, 319 (1986) (cleaned up). “When confronted with a claim of excessive force alleging a
violation of the Eighth Amendment, the core judicial inquiry is ‘whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.’”
Santiago v. Blair, 707 F.3d 984, 990 (8th Cir. 2013) (quoting Hudson v. McMillian, 503 U.S. 1, 7
(1992)). Factors that inform this inquiry are: (1) “whether there was an objective need for force,”
(2) “the relationship between any such need and the amount of force used,” (3) “the threat
reasonably perceived by the correctional officers,” (4) “any efforts by the officers to temper the
severity of their forceful response,” and (5) “the extent of the inmate’s injury.” Ward v. Smith, 844
F.3d 717, 721–22 (8th Cir. 2016) (internal citation omitted). The Court is satisfied that sufficient
facts have been alleged to state a plausible use of excessive force claim against Defendant Moire
in his individual capacity as to the March 4, 2024 incident. See Fisherman v. Launderville, 100
F.4th 978, 981 (8th Cir. 2024) (observing “the law has been settled for at least three decades that
repeatedly striking a fully restrained inmate violates the Eighth Amendment.”).
2 The constitutional standard applied to an excessive force claim depends on whether the
plaintiff was an arrestee, a pretrial detainee, or a convicted inmate at the time of the alleged use of
force. Andrews v. Neer, 253 F.3d 1052, 1060-61 (8th Cir. 2001). As a convicted inmate, the Fourth
Amendment’s protection against excessive force is not applicable to Ashton.
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As to Sgt. Volk, Ashton claims the sergeant held him down and did not protect him from
Moire’s use of excessive force. “A prison official may be liable for failure to protect an inmate
from a use of excessive force if he is deliberately indifferent to a substantial risk of serious harm
to an inmate.” Estate of Davis Ostenfeld v. Delo, 115 F.3d 1388, 1395 (8th Cir. 1997); Buckner v.
Hollins, 983 F.2d 119, 122 (8th Cir. 1993) (applying deliberate indifference standard to a prison
official’s failure to act). “A prison official acts with deliberate indifference to an inmate’s safety
when the official is present at the time of an assault and fails to intervene or otherwise act to end
the assault.” Williams v. Mueller, 13 F.3d 1214, 1216 (8th Cir 1994). Ashton has alleged sufficient
facts to support a claim for failure to intervene against Sgt. Volk, in his individual capacity.
IV. RECOMMENDATION
Because NDSP employees, sued in their official capacity, are entitled to Eleventh
Amendment immunity from suit for monetary damages, this Court RECOMMENDS that
Ashton’s claims against Christ Momale Moire and Sgt. Rhet Volk in their official capacities be
dismissed.
V. ORDER
Ashton will be permitted to proceed with his use of excessive force claims against Christ
Momale Moire and failure to intervene or protect claims against Sgt. Rhet Volk in their individual
capacities. The Clerk of Court is directed to serve and/or forward the notice of lawsuit and request
to waive services of summons form, the complaint, and a copy of this Report and Recommendation
and Order to Defendants. If necessary, service shall be made by the United States Marshals
Service.
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NOTICE OF RIGHT TO FILE OBJECTIONS
Plaintiff may object to this Report and Recommendation by filing with the Clerk of Court
no later than December 27, 2024, a pleading specifically identifying those portions of the Report
and Recommendation to which objection is made and the basis of any objection. Failure to object
or to comply with this procedure may result in the recommended action being taken without further
notice or opportunity to respond.
Dated this 11th day of December, 2024.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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