Jones v. Cowens

Filing 34

OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT. Mr. Cowens' Motion to Dismiss (# 29 ), which the Court has converted to a motion for summary judgment, is GRANTED. The Clerk of the Court shall enter judgment in favor of Mr. Cowens and shall close this case, by Judge Marcia S. Krieger on 08/19/2012.(wjcsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 09-cv-01274-MSK-MJW
IVAN JONES,
Plaintiff,
v.
TODD COWENS,
Defendant.
______________________________________________________________________________
OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to the Defendant’s Motion to Dismiss
(# 29), to which no responsive papers were initially filed. By Order (# 31) dated April 25, 2012,
the Court found that the Motion to Dismiss relied on evidentiary material and thus converted it to
one for summary judgment under Fed. R. Civ. P. 56, giving the parties an opportunity to submit
any additional evidence relevant to it. Both Mr. Jones (# 33) and the Defendant (# 32) did so.
FACTS
According to the pro se Complaint (# 3), on October 12, 2007, Mr. Jones was an inmate
of the Colorado Department of Corrections (“CDOC”), being transferred from the custody of
Adams County authorities to the CDOC Diagnostic Center. Mr. Jones contends that the Mr.
Cowens, a CDOC Corrections Officer, “marched plaintiff to an occupied cell, threw out the
occupant, threw in plaintiff, removed Adams County’s shackles and placed DOC handcuffs on
plaintiff (behind his back) so tight they caused great pain and reduced his circulation.” The

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Plaintiff contends that he was left in this condition for two hours, and that his requests to loosen
the handcuffs or to use the toilet were denied. The Plaintiff also contends that his shoes were
removed from him, “aggravat[ing] his plantar fasciitis foot condition” and that, because he was
handcuffed, he was “unable to shoo away” gnats that were in the cell.
He alleges three causes of action: (i) that he was subjected to cruel and unusual
punishment in violation of the 8th Amendment to the U.S. Constitution; (ii) a claim entitled
“Negligence- violation of 8th and 14th Amendments,” which recites that, although there was a
toilet in the cell, the Plaintiff was unable to use it because of his handcuffed condition; and (iii) a
claim entitled “Brutality - violation 8th Amendment” which contends that the Defendant
purposefully placed the handcuffs too tightly on the Plaintiff, causing “great pain,” affecting the
Plaintiff’s circulation, and causing “deep red grooves around his wrists that lasted several
hours,” and further alleging that prison officials prevented the Plaintiff from seeing the facility
nurse in order to cover up any injuries caused by the handcuffs.
In a prior Order (# 17), the Court dismissed any tort claims arguably alleged by Mr.
Jones’ Complaint, but allowed any 8th Amendment claims to proceed. The Court also found that,
pursuant to 42 U.S.C. § 1997e(e), Mr. Jones’ failure to allege any physical injury resulting from
the conduct at issue prevented him from recovering any monetary damages on his claim(s), but
the Court found that such claims could nevertheless result in declaratory relief or nominal
damages.
Mr. Cowens now moves (# 29) to dismiss Mr. Jones’ 8th Amendment claim(s), arguing
that Mr. Jones has failed to allege conduct that would rise to the level of an 8th Amendment
violation. As noted above, the Court has converted the motion to one for summary judgment.

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ANALYSIS
A. Standard of review
1. Pro se pleadings
Mr. Jones appears pro se. As a result, the Court reads his pleadings liberally. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). However, such liberal construction is intended merely to
overlook technical formatting errors and other defects in his use of legal terminology and proper
English. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Pro se status does not relieve
Mr. Jones of the duty to comply with the various rules and procedures governing litigants and
counsel or the requirements of the substantive law, and in these regards, the Court will treat him
according to the same standard as counsel licensed to practice law before the bar of this Court.
See McNeil v. U.S., 508 U.S. 106, 113 (1993); Ogden v. San Juan County, 32 F.3d 452, 455
(10th Cir. 1994).
2. Summary judgment standard
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if
no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine dispute as to any material fact and
a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs
what facts are material and what issues must be determined. It also specifies the elements that
must be proven for a given claim or defense, sets the standard of proof and identifies the party
with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Kaiser-Francis Oil Co. v. Producer’s Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual
dispute is “genuine” and summary judgment is precluded if the evidence presented in support of

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and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter
for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment
motion, a court views all evidence in the light most favorable to the non-moving party, thereby
favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir.
2002).
If the movant has the burden of proof on a claim or defense, the movant must establish
every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P.
56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the
responding party must present sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th
Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine
dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material
fact, no trial is required. The court then applies the law to the undisputed facts and enters
judgment.
If the moving party does not have the burden of proof at trial, it must point to an absence
of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove.
If the respondent comes forward with sufficient competent evidence to establish a prima facie
claim or defense, a trial is required. If the respondent fails to produce sufficient competent
evidence to establish its claim or defense, the claim or defense must be dismissed as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
B. 8th Amendment claim
Mr. Jones alleges that the conditions of his confinement violated his 8th Amendment right

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to be free from cruel and inhuman punishment. To establish an 8th Amendment claim based on
conditions of confinement, Mr. Jones must show: (i) that the conditions of his confinement
objectively posed a sufficiently serious risk of harm to his well-being; and (ii) that Mr. Cowens
was subjectively aware of the risk to Mr. Jones’ well-being and deliberately chose to take no
action to alleviate that risk. See generally Rocha v. Zavaras, 443 Fed..Appx. 316, 319 (10th Cir.
2011) (unpublished), citing Farmer v. Brennan, 511 U.S. 825, 834-37 (1994). To rise to the
level of an objectively serious deprivation, the conditions of confinement must be “sufficiently
serious so as to deprive inmates of the minimal civilized measure of life’s necessities,” or to
otherwise pose a risk of serious physical or emotional harm. Shannon v. Graves, 257 F.3d 1164,
1168 (10th Cir. 2001). In assessing the seriousness of the conditions, the Court must consider the
frequency and duration of the condition, as well as the measures employed to alleviate it. Id.
The Court turns to addressing the particular circumstances presented here. According to
Mr. Jones’ deposition, he had recently arrived at the CDOC facility and was being processed for
intake. Mr. Cowens, the Corrections Officer in charge, directed Mr. Jones to stand at a certain
spot. Mr. Jones, believing Mr. Cowens to be making unreasonable demands and using a
“belligerent” tone of voice, “took [his] time” moving to the spot. Mr. Cowens responded by
“grabb[ing]” Mr. Jones by the arm and “march[ing]” him over to a row of cells. Although Mr.
Jones states that Mr. Cowens “throws [him]” into a cell, Mr. Jones clarified that “I was walking
with him” into the cell. Mr. Cowens removed one set of handcuffs on Mr. Jones and replaced
them with another set, fastened behind Mr. Jones’ back. Mr. Jones states that Mr. Cowens “sorts
of ratchets them up to make sure I’m in pain, basically,” causing him to suffer “deep red grooves
around my wrists that actually lasted quite a while.” Mr. Jones testified that he stated to Mr.

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Cowens “don’t you think they’re a little tight?,” but did not specifically ask Mr. Cowens to
loosen the handcuffs. Mr. Cowens then closed the cell door and left the scene.
Mr. Jones states that he remained in the handcuffs for a period of 2-3 hours before Mr.
Cowens returned to remove them. During that period, Mr. Jones felt like he needed to use the
toilet and asked other CDOC staff to remove the handcuffs to allow him to do so, but the staff
refused, directing Mr. Jones to speak to Mr. Cowens. Mr. Jones also noted that there were
“some gnats in the room, and gnats buzz your face[,] so I’m sitting there dodging the gnats.”
When Mr. Cowens returned, Mr. Jones apologized to him for making him mad. Mr. Cowens
removed the handcuffs and permitted Mr. Jones to use the toilet, then moved Mr. Jones to an
area to be processed. Mr. Jones had several additional encounters with Mr. Cowens over the
next few hours, all of which were without incident.
Based on this record, taken in the light most favorable to Mr. Jones, the Court finds that
Mr. Jones has not demonstrated a genuine dispute of fact with regard to either the objective or
subjective elements of an 8th Amendment claim. Turning first to the objective element, Mr.
Jones’ evidence demonstrates, at best: (i) Mr. Cowens spoke to him in a loud and “belligerent”
tone of voice; (ii) Mr. Cowens placed handcuffs on Mr. Jones despite placing him in a cell1; (iii)
the handcuffs were quite tight, causing Mr. Jones to experience “deep red grooves” on his wrists
for some time thereafter; (iv) because of the handcuffs, Mr. Jones was not able to use the
bathroom for a period of 2-3 hours; and (v) there were gnats in the cell that “buzzed” his head.
The Court cannot say that, individually or in concert, these facts arise to an objectively serious

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Mr. Jones makes much of the fact that he was left in handcuffs despite being locked in a
cell. As Mr. Jones puts it in his affidavit, “A cell is designed for the removal of cuffs, hence, the
toilet in the cell and the reinforced door and walls.”
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risk of harm.
Although there are cases in which inmates were found to have stated 8th Amendment
claims when they were denied access to toilets, these cases invariably involve situations in which
the denial of access to bathroom facilities extended for many hours, sometimes days, often
coupled with far more severe hygiene concerns. See e.g. Williams v. Adams, 935 F.2d 960, 961
(8th Cir. 1991) (claim stated where inmate placed in holding cell for 13 days, denied hygiene
items and clean clothes, and subjected to toilet that “did not work and . . . continually ran over
and leaked onto the cell floor and the floor stayed filthy with its waste”). Here, Mr. Jones was
denied the ability to use the toilet for no more than 2-3 hours. Although inconvenient and
uncomfortable, the Court cannot say that such a situation is so objectively serious as to rise to
the level of unconstitutionality. See Ledbetter v. City of Topeka, 318 F.3d 1183, 1188 (10th Cir.
2003) (inmate’s contention that he was “placed in his bare feet in a cell without a toilet for five
hours does not allege a sufficiently serious deprivation”). Similarly, the presence of gnats or the
fact that he was handcuffed during the 2-3 hour time period do not suffice to render the
conditions of his brief confinement particularly serious. See e.g. Smith v. Barber, 316 F.Supp.2d
992, 1028 (D. Kan. 2004) (detainees housed for 10-20 days in cells with leaking water and
“infested with . . . gnat-like insects” failed to state 8th Amendment claim); Wilson v. Brown, 261
Fed.Appx. 442, 443-44 (3d Cir. 2008) (unpublished) (locking handcuffed inmate in cell
overnight did not give rise to 8th Amendment claim).
An interesting contrast may be found in Barker v. Goodrich, 649 F.3d 428, 434 (6th Cir,
2011). There, the inmate was placed in an observation cell, handcuffed behind his back, for a
period of approximately 12 hours, during which time he was not able to use the toilet, get a drink

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of water, or sit or lie down comfortably. Finding this to constitute an 8th Amendment violation,
the court was particularly mindful of the fact that the inmate was “nonresistant” and thus, there
was “no legitimate penological purpose” justifying restraint while he was in the cell. Id. Barker
is distinguishable from the situation presented here in two important respects. First, the duration
of the confinement here – two to three hours – is far less than the 12-hour duration of
confinement in Barker. It is undoubtedly unpleasant and uncomfortable for an inmate to be
deprived of the ability to use the toilet for a 2-3 hour period, but the deprivation of the ability to
use the toilet for a 12-hour period is far more concerning. Second, Barker is distinguishable
insofar as the inmate there was “nonresistant,”. Here Mr. Jones admits that he purposefully
resisted Mr. Cowens’ instructions to stand in a particular spot, and indeed, later apologized to
Mr. Cowens for his intransigence. Thus, unlike Barker, Mr. Cowens had a colorable penological
purpose for restraining Mr. Jones for a brief time in the holding cell. Accordingly, the Court
finds that Mr. Jones has failed to come forward with facts sufficient to demonstrate the objective
prong of an 8th Amendment claim.
Even if the deprivation were to approach the objective standard, however, Mr. Jones has
failed to establish Mr. Cowens’ awareness of any dangerous conditions Mr. Jones faced, much
less Mr. Cowens’ deliberate indifference to those conditions. Mr. Jones states that he asked
several other CDOC staffers to permit him to use the bathroom, but he does not state that he
asked to talk to Mr. Cowens and that Mr. Cowens refused, or that he made such a request of Mr.
Cowens and Mr. Cowens refused. Although Mr. Jones made a comment to Mr. Cowens about
the handcuffs being tight, that remark was neither a clear statement to Mr. Cowens that Mr.
Jones felt that the handcuffs were actually painful or a request that they be loosened. Instead,

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viewed in the context of the circumstances, Mr. Jones’s comment appears to be sarcastic or
combative. Without evidence in the record to suggest that Mr. Cowens was aware that the
handcuffs were painfully tight or that they prevented Mr. Jones from using the toilet, Mr. Jones
fails to demonstrate the subjective element of an 8th Amendment claim as well.
Accordingly, the Court finds that Mr. Cowens is entitled to summary judgment on Mr.
Jones’ remaining 8th Amendment claim.
CONCLUSION
For the foregoing reasons, Mr. Cowens’ Motion to Dismiss (# 29), which the Court has
converted to a motion for summary judgment, is GRANTED. The Clerk of the Court shall enter
judgment in favor of Mr. Cowens and shall close this case.
Dated this 19th day of August, 2012
BY THE COURT:

Marcia S. Krieger
United States District Judge

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