Dillon v. Day

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE

         Luther Wayne Dillon proceeds In this matter pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. (Docs. 1, 2, 7). In his Complaint, Plaintiff alleges a violation of his right to confidential conversations with counsel. (Doc. 2). Plaintiff is incarcerated in the Boone County Detention Center.

         On November 15, 2018, Defendant Jason Day filed a Motion for Summary Judgment. (Doc. 23). On November 19, 2018, an Order (Doc. 26) was entered directing Plaintiff to file a response to the Motion for Summary Judgment by December 10, 2018. Plaintiffs time to respond to the motion was then extended to December 17, 2018. (Doc. 28).

         Plaintiff has not filed a response to the Motion for Summary Judgment. He has not requested an extension of time to file his response. No mail has been returned as undeliverable. Plaintiff has failed to comply with the Court's Order requiring him to file his summary judgment response by December 17, 2018.

         Plaintiff was advised that failure to comply with the Court's Order to respond to the Motion would result in: (a) all of the facts set forth by the Defendants in the summary judgment papers being deemed admitted by Plaintiff, pursuant to Local Rule 56.1(c); and/or, (b) this case being subject to dismissal, without prejudice, pursuant to Local Rule 5.5(c)(2). (Doc. 26).

         The Court must consider the facts set forth in Plaintiff's verified Complaint in ruling on the Motion for Summary Judgment. A verified complaint is the equivalent of an affidavit for summary judgment purposes. See, e.g., Roberson v. Hayti Police Dep't, 241 F.3d 992, 994-95 (8th Cir. 2001). As the Court in Roberson points out, "[a]lthough a party may not generally rest on his pleadings to create a fact issue sufficient to survive summary judgment, the facts alleged in a verified complaint need not be repeated in a responsive affidavit to survive the summary judgment motion." Id. The Court will "piece[] together [Plaintiff's] version of the facts from the verified complaint. Those portions of the Defendant['s] statement of material facts that do not conflict with [Plaintiff's verified complaint] are deemed admitted." McClanahan v. Young, 2016 WL 520983 (D.S.D. Feb. 5, 2016).

         I. BACKGROUND

         The Plaintiff was booked into the Boone County Detention Center ("BCDC") on or about February 6, 2018, on three counts of Rape, one count of Criminal Attempt to Rape, one count of Sexual Assault in the Second Degree, one count of Sexual Indecency with a Child, and one count of Sexually Grooming a Child. (Doc. 25, Ex. A-1 at 5-6). The Plaintiff was arraigned on February 16, 2018, and the Circuit Court's Docket reflects that Plaintiff indicated he would apply for the services of the public defender. (Doc. 25, Ex. C). The Plaintiffs criminal trial was scheduled for the week beginning July 23, 2018. Id. BCDC records indicate that the Plaintiff was visited by attorney Ben Burnett on or about February 22, 2018. (Doc. 25, Ex. A-1 at 19).

         On February 23, 2018, Plaintiff appeared before the Boone County Circuit Court and indicated that he had hired attorney Justin Downum. (Doc. 25, Ex. C). BCDC records indicate that Plaintiff was visited by attorney Downum on March 7, 2018. (Doc. 25, Ex. A-1 at 19). On March 13, 2018, Downum entered his appearance in Plaintiff's criminal case. (Doc. 25, Ex. C).

         According to Plaintiffs verified Complaint, Downum came to the BCDC on April 5, 2018, to see the Plaintiff. "Someone under Mr. Jason Day" informed him that he would have to wait until there was a space available for him to talk to the Plaintiff. (Doc. 2 at 4). Downum waited for an hour and then left. Id. Plaintiffs verified Complaint also states that on April 11, 2018, Downum again visited the BCDC to meet with the Plaintiff. The two actually met that day, but they were not able to talk in private, and an officer was present during the meeting.

         According to Plaintiffs deposition testimony, Downum came to the BCDC on April 5, 2018, to meet with him. Downum waited about an hour before leaving because the BCDC did not have a place for him to meet with the Plaintiff. (Doc. 25, Ex. B at 29-30). On April 10 or 11, 2018, Downum came to the BCDC and met with Plaintiff, but they were not able to have a private meeting. The Plaintiff met with Downum for about 30 minutes with an officer present. Plaintiff testified that Downum was fine meeting with Plaintiff with an officer present, but Plaintiff preferred to meet in private. Id. at 30-32.

On April 14, 2018, Plaintiff filed a grievance that stated:

Another question why didn't you let me see my attorney last friday? He said he came up here and set for an hour waiting to see me. That's my right to see my attorney at any time he comes to talk to me that's my constitutional right that you all refused to give me thats a Lawsuit if I decide on pursing it. I did talk to my attorney about it Wednesday when he came again to see me. Just wanted you ...