Stevenson v. Cordova et al

Filing 162

MEMORANDUM OPINION regarding the motions for summary judgment docketed at 117, 118, 119, 120. By Magistrate Judge Craig B. Shaffer on 10/4/2016. (cbslc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00649-CBS
WILLIAM R. STEVENSON,
Plaintiff,
v.
R. CORDOVA, in his individual and official capacities;
D. NUNEZ, in his individual and official capacities;
M. HOLLOWAY, in his individual and official capacities;
K. TOPLISS, in his individual and official capacities;
C. WILLIAMS, in his individual and official capacities;
K. CLINKINBEARD, in his individual and official capacities;
J. ESPINOZA, n his individual and official capacities;
G. SULLIVAN, in his individual and official capacities;
J. HANSON, in her individual and official capacities;1
J. BUFMACK, in his individual and official capacities;
M. BENAVIDEZ, in his individual and official capacities; and
A. BELL, in his individual and official capacities;
Defendants.

MEMORANDUM OPINION REGARDING MOTIONS
FOR SUMMARY JUDGMENT

Magistrate Judge Shaffer
This Memorandum Opinion addresses the following motions: (1) Defendants Cordova,
Nunez, Holloway, Topliss, Williams, Clinkinbeard, Espinoza, Bufmack, Benavidez, and Bell’s
Motion for Summary Judgment Based on Plaintiff’s Failure to Exhaust Prison Administrative

1

From a view of the docket sheet, it appears that Ms. Hanson has never been successfully
served with the summons and complaint in this action. See doc. #48. She is dismissed from this
action, without prejudice, pursuant to Fed. R. Civ. P. 4(m).
1

Remedies (doc. #117) (hereinafter the “Exhaustion Motion”) and (2) Defendants Cordova,
Holloway, Williams, Clinkinbeard, Espinoza and Benavidez’s Motion for Summary Judgment
(doc. #118) (hereinafter the “Excessive Force Motion”), which were both filed on November 12,
2015. Plaintiff William R. Stevenson filed his Response to Defendants’ Exhaustion Motion
(doc. #146) on March 3, 2016, which was followed by Defendants’ Reply (doc. #152) on April
14, 2016. Mr. Stevenson filed his Response to Defendants’ Excessive Force Motion (doc. #147)
on March 3, 2016, and Defendants tendered their Reply (doc. #153) on April 18, 2016.
Also pending before the court are (3) Defendant Bell’s Motion for Summary Judgment
(doc. #119) and (4) Defendants Bufmack and Nunez’s Motion for Summary Judgment (doc.
#120), which were filed on November 12, 2015. After requesting and receiving multiple
extensions of time to file his client’s response briefs, see doc. #127, #128, #129, #130, #135 and
#136, Mr. Stevenson’s counsel moved on March 3, 2016 for Leave to File Out-Of-Time his
Responses to Defendants’ Four Outstanding Motions for Summary Judgment (doc. #145). In
that motion, Plaintiff’s counsel explained that health issues had prevented him from complying
with previously set deadlines, and asked the court to accept the “four responses to Defendants’
outstanding motions for summary judgment . . . filed contemporaneously with this motion.” The
docket indicates, however, that counsel did not include responses to the summary judgment
motions filed by Defendants Bell, Bufmack and Nunez. That oversight was noted in
Defendants’ Response in Opposition to Plaintiff’s Motion for Leave to File Out-Of-Time (doc.
#148) submitted on March 14, 2016, but was met with silence from Mr. Stevenson’s attorney. In
an Order issued on March 17, 2016, this court granted Plaintiff’s Motion for Leave (doc. #145)
and accepted the two response briefs filed on March 3, 2016 (doc. #146 and #147). However, in

2

the same Order, the court indicated that no further response briefs from Mr. Stevenson would be
accepted.
The parties consented (doc. #85, #86 and #88) to the magistrate judge’s jurisdiction to
“conduct all further proceedings in this civil action, including trial, and to order the entry of a
final judgment,” pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D.C.COLO.LCivR 72.2.
Accordingly, the case was referred to this court on March 3, 2015. After carefully considering
the parties’ briefs and attached exhibits, the entire case file, and the applicable law, this court
decided the aforementioned motions and briefly explained the bases for its rulings during a
hearing on September 29, 2016. This Memorandum Opinion elaborates upon those rulings from
the bench.
PROCEDURAL BACKGROUND
Mr. Stevenson commenced this litigation on February 28, 2014 with the filing of a pro se
Complaint,2 pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983, that asserted constitutional
violations by 15 staff members at the Colorado Territorial Correctional Facility in Canon City,
Colorado. Mr. Stevenson alleges in his Complaint that on February 29, 2012, Defendants
Espinoza, Clinkinbeard, Hanson, Benavidez, and Sullivan subjected him to excessive force by:
excessively tasing him five times in rapid succession; by applying
handcuffs more tightly than necessary; by dropping him on his face from
approximately 2-3 feet in the air after he was handcuffed, shackled and
otherwise subdued; by then pressing his face hard into the floor grinding
his teeth on the concrete; by intentionally bending his wrist and pulling his
arms while handcuffed and strapped to a back board; and by ignoring his
repeated and reasonable complaints about the cuffs being too tight and

2

On March 11, 2015, counsel entered his appearance on behalf of Mr. Stevenson.
3

refusing his requests to loosen the same.3
See Complaint (doc. #1) at 10. Mr. Stevenson further asserts that Defendants Holloway,
Williams, and Cordova were present during the use of excessive force but failed to intervene. Id.
at 20. Plaintiff insists that Defendants’ use of force was unjustified because there was no
emergency situation and no threat to anyone’s safety. Id. at 19.
The Complaint also claims that Defendants Cordova, Holloway, and Clinkinbeard
conspired to cover up this Eighth Amendment violation by falsely initiating a prison disciplinary
action against Plaintiff for assault, and that Defendants Nunez, Bufmack, and Holloway refused
to accurately document the extent of his injuries. On March 15, 2012, Defendant Cordova issued
Plaintiff an incident report for assault and for advocating and creating a facility disruption, which
purportedly contained several false allegations concerning Plaintiff’s behavior during the use of
force incident. Defendant Topliss, acting as a disciplinary hearing officer, found Plaintiff guilty
of the unsubstantiated charges. Finally, Plaintiff alleges that Defendant Bell, Plaintiff’s case
manager, and Defendant Wolfe, the facility’s grievance coordinator, interfered with his efforts to
exhaust his administrative remedies.
On May 20, 2015, Magistrate Judge Boyd Boland entered an Order dismissing Defendant
Wolfe from this action and directing that the claims against Defendants Cordova, Nunez,
Holloway, Topliss, C. Williams, H. Williams, Clinkenbeard, Espinoza, Sullivan, Hanson, Soto,
Benavidez, and Bell be drawn to a presiding judge.

3

Plaintiff insists that he suffered “scarring on his back from the taser, gashes and swelling
to his wrists, pain in both wrists, shooting pain in his right hand, numbness and loss of feeling to
his left thumb and fingers, feeling of electrical shock, decreased mobility in both wrists, as well
as scarring from the handcuffs, “two chipped front teeth, lacerations to lower lip, neck strain,”
and “recurring nightmares of being shot in the back at close range.” See Complaint, at 10.
4

The Complaint, minus the dismissed defendants,4 remains the operative pleading in this
action and asserts two claims for relief. The first claim alleges the “use of excessive force &
deliberate indifference” in violation of the Eighth Amendment. The second claim asserts a
“conspiracy to violate civil rights under the Due Process Clause of the Fourteenth Amendment.”
ANALYSIS
“Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant
summary judgment where the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any material
fact and the . . . moving party is entitled to judgment as a matter of law.” Montgomery v. Board
of County Comm’rs, 637 F. Supp. 2d 934, 939 (D. Colo. 2009) (internal quotation marks and
citations omitted).
The burden of persuasion under Rule 56 requires the moving party to “point to those
portions of the record that demonstrate an absence of a genuine issue of material fact, given the
relevant substantive law.” Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024
(10th Cir. 1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). A fact is
“material” if under the substantive law it could have an effect on the outcome of the lawsuit.
Equal Emp’t Opportunity Comm’n v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190
(10th Cir. 2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). While the
moving party bears the initial burden of showing that there is an absence of any issues of
material fact, Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991), the movant need not

4

On October 15, 2015, Mr. Stevenson voluntarily dismissed his claims against
Defendants Henry Williams and Jason Soto. See doc. #133.
5

negate the non-movant's claim. See John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500,
503 (10th Cir. 1994); Universal Money Ctrs., Inc. v. Am. Tel. & Tel. Co., 22 F.3d 1527, 1529
(10th Cir. 1994). Once the moving party points to an absence of evidence to support the nonmoving party’s claim, the non-moving party may not rest upon his pleadings, but must come
forward with specific facts showing that there is a genuine issue for trial as to the elements
essential to the non-moving party's case. See Fed. R. Civ. P. 56(e). See also Kannady v. City of
Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
To defeat a properly supported motion for summary judgment, there must be evidence
upon which the jury could reasonably find for the plaintiff. See, e.g., Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“Where the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue
for trial.’”). Conclusory allegations will not create a genuine issue of material fact necessitating
trial. Dobson v. City & Cty. of Denver, 81 F. Supp. 2d 1080, 1083 (D. Colo. 1999), aff’d, 13 F.
App’x 842 (10th Cir. 2001). Cf. Nichols v. Hurley, 921 F.2d 1101, 1113 (10th Cir. 1990),
rehearing denied (Jan. 29, 1991) (acknowledging “conclusory allegations without specific
supporting facts have no probative value”). Similarly, evidence that is not significantly
probative and immaterial factual disputes will not defeat a motion for summary judgment. Ayon
v. Gourley, 47 F. Supp. 2d 1246, 1252 (D. Colo. 1998), aff’d, 185 F.3d 873 (10th Cir. 1999).
The demonstration of “some metaphysical doubt as to the material facts” is not sufficient to
establish a genuine issue of material fact. Forman v. Richmond Police Dep’t, 104 F.3d 950, 957
(7th Cir. 1997) (quoting Matsushita, 475 U.S. at 957). After construing the factual record and
drawing all reasonable inferences therefrom in the light most favorable to the non-moving party,

6

Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir. 1996), rehearing denied (Sep. 5, 1996),
the court ultimately must determine “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.” Anderson, 477 U.S. at 251-52. “The very purpose of a summary judgment action is to
determine whether trial is necessary.” White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir.
1995).
Mr. Stevenson failed to respond to the summary judgment motions filed by Defendants
Bell, Bufmack and Nunez. However, summary judgment may not be granted merely because the
non-moving party failed to file a response. See Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir.
2002). As the Tenth Circuit has explained, “summary judgment is ‘appropriate’ under Rule
56(e) only when the moving party has met its initial burden of production under Rule 56(c). If
the evidence produced in support of the summary judgment motion does not meet this burden,
‘summary judgment must be denied even if no opposing evidentiary matter is presented.’” Id.
(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 160-61 (1970)) (emphasis added). But, “by
failing to file a response within the time specified . . . , the nonmoving party waives the right to
respond or to controvert the facts asserted in the summary judgment motion.” Reed, 312 F.3d at
1195.

A.

Defendants’ Exhaustion Motion
Defendants Cordova, Nunez, Holloway, Topliss, Williams, Clinkinbeard, Espinoza,

Bufmack, Benavidez, and Bell have moved for summary judgment on the ground that Mr.
Stevenson failed to exhaust his administrative remedies under the Prison Litigation Reform Act
of 1996 (“PLRA”). Defendants contend that Plaintiff failed to exhaust his administrative
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remedies by not properly complying with Colorado Department of Corrections (“CDOC”)
Administrative Regulation 850-04 (“AR 850-04") and, more specifically, by providing multiple
“Step 3" grievance forms, by failing to properly incorporate “all issues and remedies” in
subsequent steps in the grievance process, and by exceeding mandated page limitations.
According to Defendants, these procedural errors preclude a finding that Mr. Stevenson properly
exhausted his administrative remedies.
Plaintiff Stevenson argues, to the contrary, that the record before the court reveals
genuine issues of material facts as to:
1) whether Mr. Stevenson submitted grievances in conformity with applicable
Administrative Regulations at all three stages of the grievance process; 2)
whether the grievances Mr. Stevenson submitted were procedurally defective;
[and] 3) whether officials’ mishandling of Mr. Stevenson’s grievances or
officials’ failure to comply with their own obligations under the AR of Mr.
Stevenson’s grievances made administrative remedies “unavailable” to Mr.
Stevenson.
See Plaintiff’s Response to Defendants’ Exhaustion Motion, at 1.
A failure to exhaust administrative remedies constitutes an affirmative defense which
must be pled and proved. Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007). Because
Defendants have submitted evidence to support their exhaustion arguments, the burden shifts to
Mr. Stevenson to show, by tendering competent evidence, that summary judgment is not proper.
If he fails to demonstrate with specificity the existence of a disputed material fact, the
affirmative defense bars his claim, and Defendants are entitled to summary judgment as a matter
of law. Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997). In short, this court must
determine whether Mr. Stevenson has come forward with specific facts to demonstrate a genuine
issue of material facts on the issue of whether he properly complied with the PLRA’s exhaustion

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requirement.
The PLRA provides that “[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). The “PLRA's exhaustion requirement applies to all inmate
suits about prison life.” Porter v. Nussle, 534 U.S. 516, 532 (2002). See also Booth v. Churner,
532 U.S. 731, 734, 741 (2001) (PLRA requires exhaustion in all matters regardless of remedy
sought and availability of remedy at the agency level). Even where the “available” remedies
would appear to be futile at providing the kind of remedy sought, the prisoner must exhaust the
administrative remedies available. Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)
(citing Booth, 532 U.S. at 740 (holding that even where an inmate sought money damages and
the grievance process did not permit such awards, exhaustion was required as long as there was
authority to take some responsive action)).
The PLRA's requirement that an inmate exhaust all available administrative remedies
before initiating suit is mandatory. See Woodford v. Ngo, 548 U.S. 81, 85 (2006) (“Exhaustion is
no longer left to the discretion of the district court, but is mandatory.”). See also Jones v. Bock,
549 U.S. 199, 210-212 (2007) (“There is no question that exhaustion is mandatory under the
PLRA and that unexhausted claims cannot be brought in court.”). “To exhaust administrative
remedies an inmate must properly comply with grievance procedures; substantial compliance is
insufficient.” Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112 (10th Cir. 2007). The
administrative review process that must be completed to properly comply with applicable
grievance procedures is “not defined by the PLRA, but [rather] by the prison grievance process

9

itself.” Jones, 549 U.S. at 218.
The CDOC has a grievance procedure available to inmates which entails a formal threestep written grievance procedure. See Affidavit of Anthony DeCesaro (doc. #117-1) and AR
850-04 (doc. #117-2), both attached to Defendants’ Exhaustion Motion.5 Administrative
Regulation 850-04 requires an inmate to file a Step 1 grievance, a Step 2 grievance, and a Step 3
grievance. See AR 850-04 Section IV.F.2 (doc. #117-2, at page 5 of 15). The inmate must state
in writing the “basis for the grievance and the relief requested in the space provided on the
[grievance form].”6 See AR 850-04 Section IV.C.1.b. (doc. #117-2, at page 3 of 15).
1.

Each grievance shall address only one problem or complaint and include a
description of the relief requested. Problems that arise from the same
incident or set of facts shall be grieved in one grievance, even though it
may involve multiple DOC employees, contract workers, or volunteers.

2.

A substantive issue or remedy may not be added at a later step if it has not
been contained in each previous step of that particular grievance. All
issues and remedies contained in the original grievance must be
incorporated into each subsequent step of the grievance. Failure to renew
each element of the complaint and/or requested relief in subsequent steps
shall be deemed a waiver of those elements and/or requested remedy.

See AR 850-04 Section IV.D.1 and 2 (doc. #117-2, at page 4 of 15).
A Step 1 grievance must be filed no later than thirty calendar days after the date the
prisoner knew, or should have known, of the facts giving rise to the grievance. See AR 850-04

5

A court may take judicial notice of agency rules and regulations. Ray v. Aztec Well Serv.
Co., 748 F.2d 888, 889 (10th Cir. 1984). See also Muniz v. Kaspar, No. 07-cv-01914-MSKMJW, 2008 WL 3539270, at *3 (D. Colo. Aug. 12, 2008) (taking “judicial notice of AR 850-04,
the administrative regulation describing the grievance process”).
6

That same provision further states that “[a]dditional pages or attachments will not be
considered, except at Step 3 where relevant exhibit(s) of three pages or less may be attached. . . .
A continuation of the body of the grievance onto a separate page is not an exhibit and is not
allowed.”
10

Section IV.H.1.a (doc. #117-2, at page 6 of 15). When an offender wishes to proceed to the next
step in the process, the offender shall file the next step within five calendar days after receiving
the response. See AR 850-04 Section IV.H.1.c (doc. #117-2, at page 6 of 15). In the event the
time limit concerning any step of the process expires without a response, the offender may
proceed to the next step within five calendar days of the date the response was due. See AR 85004 Section IV.H.1.d (doc. #117-2, at page 6 of 15).
A Step 3 grievance is the final step in the grievance process and the decision of the
grievance officer on a Step 3 grievance constitutes final agency action. See AR 850-04 Section
IV.G.1.c.4 (doc. #117-2, at page 5 of 15).
1.

The grievance officer may deny the grievance substantively.
When a grievance is denied after a review of the substantive issue,
the grievance officer shall certify in the response that the offender
has exhausted the grievance process.

2.

The grievance officer may deny the grievance on procedural grounds,
without addressing the substantive issues, if the grievance is incomplete,
inconsistent with a former step, illegible, requests relief that is not
available, fails to request relief, or in any other way fails to comply with
the provisions of this regulation. When a grievance is denied for a
procedural error, the grievance officer shall certify in the response that the
offender has not exhausted the grievance process.

See AR 850-04 Section IV.G.1.c.1 and 2 (doc. #117-2, at page 5 of 15) (emphasis in original).
1.

Undisputed Facts

The record before the court discloses the following undisputed facts. Mr. Stevenson filed
a Step 1 grievance on March 27, 2012, 27 days after the alleged incident involving excessive
force. In his Step 1 grievance, Mr. Stevenson stated that he was “dog-piled by several officers,”
“tazed 5 times in rapid succession by Sgt. Espinoza and I believe by one other officer,” and
subjected to excessive force by being handcuffed too tightly, by having his arms pulled
11

forcefully, and by being dropped on his face while his hands were cuffed. The Step 1 grievance
also asserted that Plaintiff had been subjected to unreasonable and excessive force in violation of
the Eighth Amendment and that the “following staff were present: Capt. Cordova, Lts. Holloway
and Williams, Sgts. Benevedes, Clinkbeard, Espinosa and Sullivan, and C/Os Hanson and
Moschetti.”7 See Exhibit A-2 (doc. 117-3) attached to Defendants’ Exhaustion Motion.
Plaintiff’s Step 1 grievance was received on March 29, 2012.
The response to Mr. Stevenson’s Step 1 grievance is dated May 11, 2012.8 That
response, apparently prepared by Donald Nunez, concluded that
The findings of the Use of Force [Plaintiff] was involved in states the amount of
force utilized in this incident was necessary, justified, and appropriate. It was
your actions Mr. Stevenson, which caused the staff to exercise a level of control
needed to control and restrain you during the incident in which you were verbally
abusive and physically resistive. After reviewing all the documentation
associated with this incident, I have determined your complaint to be without
merit or creditability.
See Exhibit A-3 (doc. 117-4) attached to Defendants’ Exhaustion Motion.
Mr. Stevenson submitted a Step 2 grievance on May 4, 2012, in which he noted that “[o]n
March 29, 2012, I submitted a staff conduct grievance to Case Manager Harding . . . regarding
the excessive use of force occurring on February 29, 2012. . . . It has been well over 30 days and
there has been no response.” Plaintiff, in his Step 2 grievance, specifically invoked AR 850-

7

This Step 1 grievance does not mention Defendants Topliss, Bufmack, Bell, or Nunez,
and does not refer to any alleged conduct that occurred after February 29, 2012.
8

According to AR 850-04, Mr. Stevenson should have “receive[d] a written response [to
his Step 1] grievance without 30 calendar days of its receipt by the case manager/CPO,” which
would have been April 28, 2012. See AR 850-04 Section IV.H.1.b (doc. #117-2, at page 6 of
15). Because the Step 1 response was untimely, Mr. Stevenson was entitled to “proceed to the
next step within five calendar days of the date the response was due.” See AR 850-04 Section
IV.H.1.d (doc. #117-2, at page 6 of 15).
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04.IV.D.2 and “renew[ed] and incorporate[d] all issues and remedies that were contained in the
original grievance.” See Exhibit A-4 (doc. 117-5) attached to Defendants’ Exhaustion Motion.
This Step 2 grievance apparently was received by DOC personnel on May 7, 2012.
On May 18, 2012, Mr. Stevenson submitted an additional grievance form that he
denominated for “information only.” In the narrative portion of the form, Plaintiff explained:
Just for the record, the response to this [Step 1] grievance was late. The
grievance was submitted to Case Manager Harding on March 29, 2012 and was
received by the grievance coordinator on April 5, 2012. The [Step 1] grievance
was not responded to until May 11, 2012, well over the 30 day limit. There was
no notice of delay. As stated in my Step 2, since there was no timely response, as
a matter of course pursuant to AR 850-04(h)(1)(d), the Step 2 was timely
submitted to the next level, and pursuant to AR 850-04(D)(2), all issues and
remedies that were contained in the original grievance were renewed and
incorporated into the Step 2, which was submitted to Case Manager Bell on May
7, 2012.
See Exhibit A-6 (doc. 117-7) attached to Defendants’ Exhaustion Motion. Case Manager Bell
apparently received the “information only” submission on May 21, 2012.9
The actual Step 2 grievance dated May 4, 2012 generated a response from Lance Miklich
on June 1, 2012 which in turn was received by Mr. Stevenson on June 18, 2012. Mr. Miklich
concluded that Plaintiff’s “claims of excessive force was not founded through the review process
. . . . [and] I have found no evidence to support your allegations. . . . Your choices and actions
resulted in events occurring to ensure the safety of employees and your self.” See Exhibit A-5
(doc. 117-6) attached to Defendants’ Exhaustion Motion.
Plaintiff submitted a Step 3 grievance form on June 14, 2012, in which he wrote “[i]t has

9

Plaintiff contends that Case Manager Bell was the one who mis-characterized the May
18, 2012 “informational” submission as a Step 2 grievance. See Exhibit 1 (doc. #147-1, the
Stevenson Declaration, at ¶ 121), attached to Plaintiff’s Response to Defendants’ Excessive
Force Motion.
13

been over 30 days since your receipt of my Step 2 Grievance regarding the use of excessive force
and no reply has been received and no notice of delay.” Mr. Stevenson stated that “all issues and
remedies that were contained in the original Grievance are renewed and incorporated herein.”
He also stated that “since I have the burden of proof, I submit the attached affidavit in support of
my allegations” and asked the grievance officer to also “[s]ee both Clinical Services Anatimical
(sic) Forms, dated 2/29/12 (2 pages) and 3/7/12 (1 page), and Conduct Complaint (Form 300-16
RDD, dated 3/14/12 and submitted to Mrs. Mary Ann Aldrich on 3/13/12, incorporated herein.”10
See Exhibit A-7 (doc. 117-8) attached to Defendants’ Exhaustion Motion. The Step 3 grievance
bears the signature “A Bell” but has the printed name “S. Cadwallader.” The box bearing the
legend “Date received” is blank.
On June 21, 2012, Grievance Officer Anthony DeCesaro responded to Mr. Stevenson’s
Step 3 grievance and concluded that Plaintiff had not exhausted his administrative remedies “in
this matter based upon your failure to satisfactorily request allowable relief.” According to Mr.
DeCesaro,
The grievance procedure is outlined in Administrative Regulation 850-04, it states
in pertinent part that, “All issues and remedies contained in the original
grievance must be incorporated into each subsequent step of the grievance.
Failure to renew each element of the complaint and/or requested relief in
subsequent steps shall be deemed a waiver of those elements and/or
requested relief.” You have failed to follow the grievance procedure by not
renewing your complaint and your remedy in the Step 3 grievance as required;
therefore this grievance is procedurally denied. The time constraints outlined in
AR #850-04 are now expired regarding these events, so there will be no further
review of this matter.

10

Although Mr. Stevenson referred to these extraneous materials in his Step 3 grievance,
he insists they were not “attached” to the grievance in violation of AR 850-04. See Exhibit 1
(doc. #147-1, the Stevenson Declaration, at ¶ 122), attached to Plaintiff’s Response to
Defendants’ Excessive Force Motion.
14

See Exhibit A-8 (doc. 117-9) attached to Defendants’ Exhaustion Motion (emphasis in original).
On June 26, 2012, Mr. Stevenson responded to Grievance Officer DeCesaro’s June 21,
2012 memorandum. In a lengthy recitation of the procedural history surrounding his grievance,
Plaintiff explained
You state that you have received my Step 3 grievance. What you have reviewed
and responded to was not my Step 3 grievance, but only an “informational” which
I submitted after receiving the late Step 2, in which I explained and clarified that
the Step 1 was late and that I had proceeded to the next Step.
My Step 3 was submitted to Case Manager Bell on June 15, 2012 after there had
been no timely response to the Step 2. And the Step 3 did indeed renew and
incorporate all issues and remedies that were contained in the original Step 1 (as
all my grievances do), and was accompanied by my sworn affidavit which was
notarized by Case Manager Jordon, and I incorporated by reference the two
Clinical Service Anatomical forms (dated 2/29/12 and 3/7/12 respectively) and
the Conduct Complaint form (300-16 RDD) dated 3/14/12.
The computer shows that you did not receive my Step 2 grievance until 6/19/12.
Further you state that you have received my Step 3, yet you attach not the Step 3,
but the “informational” I submitted to Case Manager Bell on May 21, 2012. You
also state that failure to renew each element of the complaint and/or request relief
in subsequent steps shall be deemed a waiver of those elements and/or requested
remedy. Based on this statement, it is apparent that you are not responding to
my Step 3 grievance, because in my Step 3 grievance, I specifically stated,
“Pursuant to AR 850-04 (D)(2), all issues and remedies that were contained in the
original grievance are renewed and incorporated herein.”
See Exhibit A-9 (doc. 117-10) attached to Defendants’ Exhaustion Motion (emphasis in
original).
Mr. DeCesaro responded to Mr. Stevenson on July 26, 2012. Mr. DeCesaro declined
Plaintiff’s request to reconsider his earlier declination. According to Mr. DeCesaro,
There are three steps to the grievance process. Per AR-850-04 D.2. All issues
and remedies contained in the original grievance must be incorporated into
each subsequent step of the grievance. You did not do that. Furthermore, I have
yet to receive a step 3 from you. I did receive two step 2s, one labeled as
information only. It was processed as a Step 3. There is no such think as an
15

“Information Only” step in the grievance process.
I will not reconsider the Step 3 grievance response as I have no authority to do
(sic) under Administrative Regulation 850-04. The decision of the Step 3
Grievance Officer is the final decision in this matter and there are no appeals from
that decision. I cannot reopen any grievance.
If there were missing evidence or inaccurate information presented, those matters
should have been cured, prior to the Step 3 filing.
See Exhibit A-10 (doc. 117-11) attached to Defendants’ Exhaustion Motion (emphasis in
original).
In another letter dated September 25, 2012, Mr. DeCesaro responded to further
communications from Mr. Stevenson.
I have reviewed your Step 3 response and again find it is not in compliance with
AR 850-04. As stated in the AR, “all issues and remedies contained in the
original grievance must be incorporated into each subsequent step of the
grievance. Failure to renew each element of the complaint and/or requested
relief in subsequent steps shall be deemed a waiver of those elements and/or
requested remedy.” You failed to comply with this in your Step 3.
Additionally, the attached affidavit is not in compliance with AR 850-04. As
stated in the AR, “the grievance shall clearly state the basis for the grievance
and the relief requested in the space provided on the form. Additional pages or
attachments shall not be considered, except at Step 3 where relevant exhibit(s)
of three pages or less may be attached.” You attempted to continue your
grievance dialogue through the additional pages (affidavit) which you attached.
An exhibit is not the continuation of the body of your grievance it is a separate
attachment that lends support to your claim. I did not consider your additional
dialogue because the grievance is to be drafted in the space provided, which you
clearly failed to do.
Furthermore, the AR does not contain any provision for the filing of informational
grievances. Please follow the procedure in AR 850-04.
See Exhibit A-12 (doc. 117-13) attached to Defendants’ Exhaustion Motion (emphasis in
original).
2.

Exhaustion as to Defendants Bell, Bufmack, Nunez and Toplis, and Plaintiff’s
16

Fourteenth Amendment Claims Against All Defendants
As noted above, “to properly exhaust administrative remedies prisoners must complete
the administrative review process in accordance with the applicable procedural rules, – rules that
are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218
(internal quotation marks and citation omitted). Cf. Fields, 511 F.3d at 1112 (“To exhaust
administrative remedies an inmate must properly comply with grievance procedures; substantial
compliance is insufficient.” ).
It cannot be disputed that Plaintiff’s grievances make absolutely no mention of
Defendants Bell, Bufmack, Topliss or Nunez. It is also clear that Mr. Stevenson’s grievances
make no mention of any alleged misconduct that occurred after February 29, 2012, and do not
allege a conspiracy on the part of any named defendant. In their Exhaustion Motion, Defendants
contend that Mr. Stevenson failed to properly file grievances against Defendants Bell, Bufmack,
Clinkinbeard, Cordova, Holloway, Nunez, and Topliss based upon alleged violations of the
Eighth and Fourteenth Amendments (conspiracy and retaliation). Therefore, this court must
determine whether Mr. Stevenson has come forward with specific facts to demonstrate a genuine
issue of material facts on the issue of whether he properly complied with the PLRA’s exhaustion
requirement.
Mr. Stevenson concedes that the conspiracy and retaliation claims against Defendants
Bell, Bufmack, Clinkinbeard, Cordova, Holloway, Nunez and Topliss, as well as the claim
alleging misconduct on the part of Nurse Bufmack, were never “the subject of separate
grievances and therefore not raised at the administrative level.” See Plaintiff’s Response (doc.
#146), at 17. Plaintiff, however, argues that his procedural shortcoming should not bar those

17

substantive claims because: (1) AR 850-04 does not require him to specify subject officers by
name; (2) “the conspiracy and retaliation claims are legal theories not subject to exhaustion
under the PLRA;” and (3) “proper handling of the grievances would have exposed the
misconduct by defendants of which Mr. Stevenson now complains.” Id. at 18. None of these
arguments are availing.
The PLRA’s “exhaustion requirement is designed to afford [ ] corrections officials time
and opportunity to address complaints internally before allowing the initiation of a federal case.”
Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (“a grievance suffices if it alerts the prison
to the nature of the wrong for which redress is sought”) (quoting Strong v. David, 297 F.3d 646,
650 (7th Cir. 2002), overruled in part on other grounds by Bell Atl. v. Twombly, 550 U.S. 544,
563 (2007). Cf. Soto v. Warden of Salinas Valley State Prison, No. 15-02024 BLF (PR), 2016
WL 3661384, at *6 (N.D. Cal. Jul. 1, 2016) (plaintiff failed to exhaust his administrative
remedies where his grievances, even when construed liberally, did not discuss or mention any
claim of conspiracy or make any allegation of a cover-up related to plaintiff’s excessive force
claim); Burt v. Berner, No. 13-CV-794-NJR-DGW, 2015 WL 1740044, at *6 (S.D. Ill. Apr. 14,
2015) (in holding that the plaintiff failed to exhaust his conspiracy claim, the court noted that the
prisoner’s grievance “needed to alert prison officials to the ‘nature of the wrong’” and that the
plaintiff’s grievance did “nothing to induce the reader to consider that the denial of medical care
was perhaps the result of a premeditated, multi-institution plan involving both correctional
officers and medical staff”). To that same end, AR 850-04 requires that the inmate “clearly state
the basis for the grievance.” See AR 850-04 (doc. #117-2), at IV.C.1.b. Moreover, “[a]
substantive issue or remedy may not be added at a later step if it has not been contained in each

18

previous step of that particular grievance.” Id. at IV.D.2. Although an inmate’s grievance
should not be held to a standard of perfect clarity, it cannot be “so vague as to preclude prison
officials from taking appropriate measures to resolve the complaint internally.” Kikamura v.
Osagie, 461 F.3d 1269, 1283 (10th Cir. 2006) (internal quotation marks and citation omitted),
overruled in part on other grounds by Twombly, 550 U.S. at 563.
A careful reading of Mr. Stevenson’s Step 1 grievance, dated March 27, 2012, makes
clear that the “subject of the grievance” was “staff conduct - excessive force.” See Exhibit A-2
(doc. #117-3) attached to Defendants’ Motion for Summary Judgment. In his narrative
statement, Mr. Stevenson alleged that he was “dog-piled by several officers,” “was tased 5 times
in rapid succession by Sgt. Espinoza,” that “cuffs were put on so tight they cut deep into my
skin, touched bone and cut off circulation,” that an unidentified officer pulled his arms and put
pressure on Plaintiff’s wrists to inflict additional pain, and that he was picked up and then
dropped on his face, thereby “injuring his face and chipping [a] tooth.” Plaintiff alleges that
correctional officers refused to loosen his handcuffs after he was brought to the medical unit.
The Step 1 grievance asserts that “[t]he following staff were present” during the incident on
February 29, 2012: “Capt. Cordova, Lts Holloway and Williams, Sgts Benevides, Clinkinbeard,
Espinoza and Sullivan, and C/O’s Hanson and Moschetti.”
Mr. Stevenson’s March 27, 2012 grievance does not allege that he was the victim of
retaliation or assert that the named individuals conspired to violate his Eighth Amendment right
against cruel and unusual punishment. Cf. Cleveland v. Harvanek, 607 F. App’x 770, 773 (10th
Cir. 2015) (holding that the inmate-plaintiff’s claims for retaliation and conspiracy were
unexhausted because the plaintiff never filed an administrative grievance alleging retaliation or

19

conspiracy); Lowery v. Edmondson, 528 F. App’x 789, 793 (10th Cir. 2013) (holding that
plaintiff’s request for discovery related to an alleged conspiracy was properly denied; because
plaintiff failed to allege a conspiracy in his administrative grievance, that conspiracy claim was
unexhausted); Carr v. Brill, 187 F. App’x 902, 905 (10th Cir. 2006) (holding that because the
prisoner had not used the grievance system to report his claim of alleged retaliation, “he did not
exhaust his available administrative remedies with respect to this claim”); Martin v. Butler, 10 F.
App’x 773, 774 (10th Cir. 2001) (holding that the state prisoner plaintiff had a duty to exhaust
his administrative remedies before filing his conspiracy claim). Cf. Hemphill v. Jones, No. CIV11-1192-HE, 2012 WL 7059643, at *4 (W.D. Okl. Oct. 31, 2012) (holding that plaintiff’s claims
for retaliation and conspiracy should be dismissed for failure to exhaust administrative remedies
after observing that the plaintiff’s properly exhausted grievances did not include any allegations
of retaliation or conspiracy). Plaintiff’s Step 1 grievance does not contain any reference to Nurse
Bufmack, Captain Nunez, Lieutenant Topliss, Case Manager Bell, or a “cover-up” of the alleged
excessive force that occurred on February 29, 2012.
Alternatively, the claim against Defendant Topliss must be dismissed based upon
Plaintiff’s failure to exhaust administrative remedies. As the court explained in Gatlin v.
Holdridge, No. 11-cv-03004-WJM-KLM, 2012 WL 6874397, at *8 (D. Colo. Nov. 21, 2012),
aff’d in relevant part and rejected in part on other issue, 2013 WL 179110 (D. Colo. Jan. 17,
2013), Rule 106(a)(4) of the Colorado Rules of Civil Procedure provides relief “[w]here any
governmental body or officer or any lower judicial body exercising judicial or quasi-judicial
functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and
adequate remedy otherwise provided by law.”

20

The Colorado Supreme Court has held that disciplinary actions taken by CDOC
personnel against inmates under the COPD are quasi-judicial actions that are
reviewable pursuant to Colo. R. Civ. P. 106(a)(4). . . . Plaintiff has neither alleged
in his filings nor provided ancillary evidence that he exhausted his state court
remedies by obtaining judicial review of the [pertinent] COPD hearings and
decisions[.]”
Id. Mr. Stevenson’s claim against Defendant Topliss for alleged procedural irregularities in the
COPD hearing against him suffers from the same absence of proof.
In sum, Mr. Stevenson has failed to sustain his burden of demonstrating a genuine issue
of material fact as to whether he properly exhausted administrative remedies. Cf. Frazier v.
Miller, No. 14-cv-02766-CMA-MJW, 2015 WL 3466831, at *2 (D. Colo. May 29, 2015), appeal
dismissed, 622 F. App’x 778 (10th Cir. 2015) (holding that plaintiff’s claims were properly
dismissed based upon his failure to fully exhaust his administrative remedies in compliance with
AR 850-04). The court will therefore grant Defendants’ Exhaustion Motion (doc. #117), in part,
and all claims against Defendants Nunez, Topliss, Bell and Bufmack are dismissed without
prejudice. The court will also dismiss without prejudice Plaintiff’s second claim for relief as to
all defendants.
3.

Exhaustion as to Plaintiff’s Eighth Amendment Claim Against Defendants
Cordova, Holloway, Williams, Clinkenbeard, Espinoza, Sullivan and Benavidez

As noted, proper exhaustion of administrative remedies under the PLRA requires
compliance with all steps of that administrative process, including “deadlines and other critical
procedural rules.” Woodford, 548 U.S. at 90. Cf. Mower v. Swyhart, 545 F.2d 103, 104 (10th
Cir. 1976) (“Where [an] administrative remedy is clearly available, it would be totally
inappropriate for [a] court to interfere in the internal administration of [a] prison.”).
Here, Defendants Cordova, Holloway, Williams, Clinkenbeard, Espinoza, Sullivan, and

21

Benavidez contend that Mr. Stevenson failed to properly exhaust his excessive force claim to the
extent he submitted more than three grievance forms, by failing to incorporate his issues and
proposed remedies in each of his grievance forms, and by referencing or incorporating more than
three pages of exhibits in one of his Step 3 grievance forms, all in violation of AR 850-04. See
Defendants’ Exhaustion Motion (doc. #117), at ¶¶ 48 and 49, and Defendants’ Reply in Support
of their Motion (doc. #152), at ¶ 2(a). Mr. Stevenson responds that he did not deviate from the
procedural requirements set forth in AR 850-04 and, at the very least, there are genuine issues of
material fact that preclude summary judgment on this issue.
While Tenth Circuit and Supreme Court precedent clearly require an inmate to comply
with available administrative remedies, an administrative remedy may be unavailable where
prison authorities prevent or frustrate the prisoner’s efforts to comply with the applicable
grievance procedure. See, e.g., Tuckel v. Grover, 660 F.3d 1249, 1252-53 (10th Cir. 2011)
(“when a prison official inhibits an inmate from utilizing an administrative process through
threats or intimidation, that process can no longer be said to be ‘available’”); Little v. Jones, 607
F.3d 1245, 1250 (10th Cir. 2010) (“[D]istrict courts are obligated to ensure that any defects in
exhaustion were not procured from the action or inaction of prison officials before dismissing a
claim for failure to exhaust,” internal quotation marks omitted). Cf. Evans v. City of Belleville,
No. 3:14-cv-01417-SMY-PMF, 2015 WL 9686883, at *1-2 (S.D. Ill. Oct. 8, 2015), rec. adopted,
2016 WL 106597 (S.D. Ill. Jan. 11, 2016) (noting that while “strict compliance” with grievance
procedures is mandatory, “the prison or jail administration cannot take unfair advantage of the
grievance process;” “[t]he exhaustion requirement is not intended to be a procedural trap for the
unsophisticated prisoner litigant”).

22

In addressing the exhaustion arguments directed at Plaintiff’s excessive force claim, I
find instructive the discussion in Muniz v. Kaspar, No. 07-cv-01914-MSK-MJW, 2008 WL
3539270 (D. Colo. Aug. 12, 2008). In that case, the district judge held that at all phases of the
grievance process under AR 850-04, “the Plaintiff’s grievance was timely and presented . . . with
sufficient specificity to enable CDOC to investigate, gather evidence, and prepare a meaningful
response.” Id. at *5. The court, however, also found that the “procedural trap” created by
grievance officials and their “capricious” denial of the plaintiff’s Step 2 effectively foreclosed
the inmate’s use of the grievance procedure as a meaningful way to seek internal resolution of
his complaint. Id. I have the same concerns regarding the disposition of Mr. Stevenson’s
grievance.
Defendants first argue that the excessive force claim must be dismissed because Mr.
Stevenson filed more than the permitted three grievances. It is undisputed that Mr. Stevenson
filed his Step 1 grievance on March 27, 2012, that he filed what he denominated as his Step 2
grievance on May 4, 2012, and that he filed his designated Step 3 grievance on June 14, 2012. I
understand that AR 850-04 does not contemplate the filing of an “information only” grievance
and therefore Mr. DeCesaro deemed Plaintiff’s May 18, 2012 “information only” submission to
be a Step 3 grievance. Grievance Officer DeCesaro then concluded that the May 18, 2012
submission was ineffective as a Step 3 grievance because it did not incorporate all the issues and
remedies advanced in Mr. Stevenson’s original grievance. According to Mr. DeCesaro, Plaintiff
“failed to follow the grievance procedure by not renewing your complaint and your remedy in
the Step 3 grievance as required.”
Mr. DeCesaro’s actions are called into question by other information in the record. Mr.

23

Stevenson has asserted that he did not consider his “information only” submission to be a second
Step 2 grievance and insists that erroneous designation was made by his case manager. It
appears that Mr. Bell received Plaintiff’s Step 2 grievance dated May 4, 2012, as well as the
“information only” submission on May 18, 2012. A plain reading of AR 850-04 makes clear
that Mr. Stevenson could not file a Step 3 grievance until the earlier of either 5 calendar days
after actually receiving a response to his Step 2 grievance or five calendar days after the date the
response to his Step 2 grievance was due. See AR 850-04 Section IV.H.1 (doc. #117-2, at page 6
of 15). Even if the “information only” submission could have been considered a Step 3
grievance, it was filed prematurely. If he had received prompt notice of that improper
classification and incomplete submission, perhaps Mr. Stevenson could have taken further action
in a timely manner.
More to the point, AR 850-04 provides that Step 1, Step 2 and Step grievances must be
filed with the prisoner’s case manager, and “[g]rievances not properly submitted . . . shall be
returned to the offender for proper submission at the facility.” See AR 850-04 Section IV.F.2
(doc. #117-2, at page 5 of 15). The same Administrative Regulation states that “offenders filing
grievances that are procedurally deficient may be asked to cure any deficiencies and resubmit for
processing; however, if the offender refuses to make required changes, it should be accepted,
scanned, and automatically assigned a grievance number and denied on procedural grounds.”
See AR 850-04 Section IV.B.1 (doc. #117-2, at page 3 of 15). It is not unreasonable to expect
that Mr. Bell would have understood that Mr. Stevenson could not file two Step 2 grievances
(within the space of two weeks) regarding the February 29, 2012 incident and could not file a
Step 3 grievance prematurely. On this record, there is a disputed issue of fact as to who

24

designated the May 18 submission as a “Step 2" grievance and why Mr. Bell did not elect to
return that submission to Mr. Stevenson as improperly filed.
Having unilaterally decided that Mr. Stevenson’s “information only” submission should
be treated as a Step 3 grievance, Mr. DeCesaro found it was procedurally deficient because it did
not incorporate or renew all the issues and remedies contained in Plaintiff’s Step 1 grievance.
Notably, AR 850-04 simply says that issues and remedies “must be incorporated into each
subsequent step of the grievance.” See AR 850-04 Section IV.D.2 (doc. #117-2, at page 4 of 15).
Yet, the May 18, 2012 submission specifically stated that “all issues and remedies that were
contained in the original grievance were renewed in the Step 2, which was submitted to Case
Manager Bell on May 7, 2012.” That Step 2 grievance specifically stated that “pursuant to AR
850-04(D)(2), I hereby renew and incorporate all issues and remedies that were contained in the
original grievance.” Notably, Plaintiff’s practice of “incorporation by reference” was not cited
as a procedural deficiency in the Step 2 response prepared by Lance Miklich and dated June 1,
2012. To the contrary, Mr. Miklich apparently fully comprehended the nature of Plaintiff’s
allegations, assessed the merits of that claim and the requested relief, and concluded that Mr.
Stevenson’s complaint was “without merit or creditability.” Cf. Kikamura, 461 F.3d at 1283 (“a
grievance will satisfy the exhaustion requirement so long as it is not ‘so vague as to preclude
prison officials from taking appropriate measures to resolve the complaint internally’”).
Finally, Defendants assert that Mr. Stevenson’s Step 3 grievance was procedurally
deficient because he referenced or incorporated more than three pages of exhibits in one of his
Step 3 grievance forms. Notably, AR 850-04 permits an inmate to attach “relevant exhibit(s) of
three pages or less” to a Step 3 grievance, but then states that “[a]dditional pages or attachments

25

will not be considered.” See AR 850-04 Section IV.C.1.b (doc. #117-2, at page 3 of 15)
(emphasis added). Although Mr. DeCesaro certainly was permitted to disregard any “pages or
attachments” in excess of three pages, this court could not find any provision in AR 850-04 that
explicitly states that excessive attachments, without more, provides an independent basis for
denying a Step 3 grievance. More to the point, it appears that Mr. Stevenson was never afforded
an opportunity to cure this alleged procedural deficiency and resubmit his Step 3 grievance for
processing, as seemly contemplated by AR 850-04. On balance, I find there are genuine issues
of material facts as to whether prison authorities prevented or frustrated Mr. Stevenson’s efforts
to comply with the applicable grievance procedures under AR 850-04. On that basis, I cannot
grant that portion of Defendants’ Exhaustion Motion. The court will proceed to the merits of
Plaintiff’s Eighth Amendment claim against Defendants Cordova, Holloway, Williams,
Clinkenbeard, Espinoza, Sullivan, Hanson, and Benavidez.

B.

Defendants’ Excessive Force Motion
In moving for summary judgment on Mr. Stevenson’s first claim for relief, Defendants

Cordova, Holloway, Williams, Clinkinbeard, Espinoza, and Benavidez assert that “no genuine
issue of material fact exists,” and they are entitled to qualified immunity as their “conduct did
not violate Plaintiff’s Eighth Amendment rights because Plaintiff cannot prove that Defendants’
actions were malicious or sadistic,” and because “Defendants’ actions were consistent with the
legitimate purpose of maintaining and restoring order and protecting institutional security.” See
Defendants’ Excessive Force Motion (doc. #118), at ¶ 3. Plaintiff argues, to the contrary, that he
was subjected to “unjustified malicious and brutal acts” on the part of Defendants and that “[t]he
complete record before the Court is sufficient to create a genuine issue of material fact
26

concerning [his] excessive use of force claims.” See Plaintiff’s Response (doc. #147), at 3. Mr.
Stevenson further contends that Defendants are not entitled to qualified immunity because their
actions violated the Eighth Amendment prohibition on the use of excessive force, and “the
constitutional right the Defendants violated was clearly established at the time of the conduct at
issue.” Id. at 40.
“[Q]ualified immunity is an affirmative defense to a section 1983 action.” Adkins v.
Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995). “The doctrine of qualified immunity shields
government officials performing discretionary functions from liability for damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Toevs v. Reid, 685 F.3d 903, 909 (10th Cir. 2012)
(internal quotation marks and citations omitted). Whether a defendant is entitled to qualified
immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).
“When the defense of qualified immunity is raised in a summary judgment motion, we
apply special rules to determine whether the motion was properly granted or denied.” Reynolds
v. Powell, 370 F.3d 1028, 1030 (10th Cir. 2004) (internal quotation marks and citation omitted).
See also Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009) (the court’s review of
summary judgment “in the qualified immunity context differs from that applicable to review of
other summary judgment decisions.”). “After a defendant asserts a qualified immunity defense,
the burden shifts to the plaintiff,” who must meet a two-part test before the defendant will bear
the traditional burden of a movant for summary judgment under Fed. R. Civ. P. 56(c). Holland
ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001) (internal quotation marks
and citation omitted).

27

Specifically, [t]he plaintiff initially bears a heavy two-part burden [and] must
show (1) that the defendant's actions violated a constitutional . . . right, and (2)
that the right allegedly violated [was] clearly established at the time of the
conduct at issue. Unless the plaintiff carries [his] twofold burden, the defendant
prevails.
Reynolds, 370 F.3d at 1030 (internal quotation marks and citations omitted). “If, and only if, the
plaintiff meets this two-part test does a defendant then bear the traditional burden of the movant
for summary judgment – showing that there are no genuine issues of material fact and that he or
she is entitled to judgment as a matter of law.” Clark v. Edmunds, 513 F.3d 1219, 1222 (10th
Cir. 2008) (internal quotation marks omitted). See also Herrera v. City of Albuquerque, 589
F.3d 1064, 1070 (10th Cir. 2009) (“Qualified immunity is applicable unless the plaintiff can
satisfy both prongs of the inquiry”) (internal quotation marks and citation omitted). “A
reviewing court may exercise [its] sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.” Id.
1

Whether Plaintiff’s Eighth Amendment Right Was Clearly Established

For purposes of the qualified immunity doctrine, “[t]he clearly established inquiry
examines whether the contours of the constitutional right were so well-settled, in the particular
circumstances presented, that every reasonable . . . official would have understood that what he
is doing violates that right.” Lane v. Yohn, No. 12-cv-02183-MSK-MEH, 2013 WL 4781617, at
* 3 (D. Colo. Sept. 6, 2013), appeal dismissed (10th Cir. Oct. 31, 2013) (internal quotation
marks and citation omitted). “[T]he salient question . . . is whether the state of the law at the
time of [the] incident provided ‘fair warning’” to Defendants that their alleged conduct was
unconstitutional. Tolan v. Cotton,

U.S. , 134 S. Ct. 1861, 1866 (2014) (quoting Hope v.

28

Pelzer, 536 U.S. 730, 741 (2002)).
“To satisfy this prong, the burden is on the plaintiff to point to Supreme Court or Tenth
Circuit precedent (or the clear weight of other circuit courts) that recognizes an actionable
constitutional violation in the circumstances presented.” Lane, 2013 WL 4781617, at *3. “It is
not necessary for the plaintiff to adduce a case with identical facts, but the plaintiff must identify
some authority that considers the issue not as a broad general proposition, but in a particularized
sense . . . .” Id. (internal quotation marks and citation omitted). There must be “a substantial
correspondence between the conduct in question and prior law allegedly establishing that the
defendant's actions were clearly prohibited.” Duncan v. Gunter, 15 F.3d 989, 992 (10th Cir.
1994) (internal quotation marks and citations omitted).
The Supreme Court has long-recognized that the unnecessary infliction of pain on an
inmate by a correctional officer violates the Eighth Amendment. Cf. Escobar v. Reid, 668 F.
Supp. 2d 1260, 1295 (D. Colo. 2009) (finding that Supreme Court and Tenth Circuit case law
“clearly established” that “prison officials’ malicious application of force, which is more than de
minimis, and that prison officials’ failure to prevent such harm when there is an opportunity to
do so, violates the Eighth Amendment”); Green v. Johnson, No. 12-cv-03158-DDC-KGS, 2015
WL 1440721, at *5 (D. Kan. Mar. 30, 2015) (noting that “the Supreme Court recognize[s] that
‘[t]he unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment
forbidden by the Eighth Amendment” and concluded “as a matter of law” that “given this clearly
established right, no prison official reasonably could believe that the unnecessary infliction of
pain upon inmates . . . constitutes permissible conduct”).
2.

Whether Plaintiff Has Alleged An Eighth Amendment Violation

29

"The use of excessive force by jail officials violates a prisoner's rights under the Eighth
Amendment's Cruel and Unusual Punishments Clause when the prisoner is subjected to an
'unnecessary and wanton infliction of pain.'" Miller v. Glanz, 948 F.2d 1562, 1566 (10th Cir.
1991) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986) (constitutional inquiry is directed at
whether the prisoner was subjected to an “unnecessary and wanton infliction of pain”). The
court’s inquiry must focus on whether force was applied in a good faith effort to maintain or
restore discipline, see, e.g., Mitchell-Pennington v. McGovern, No. 09-3106-SAC, 2009 WL
1938979, at *3 (D. Kan. Jul. 6, 2009) or “whether the force applied was excessive under the
circumstances, or malicious and sadistic.” Merritt v. Hawk, 153 F. Supp. 2d 1216, 1224 (D.
Colo. 2001). Cf. Marshall v. Milyard, 415 F. App’x 850, 852 (10th Cir. 2011) (observing that
“[a]n action by a prison guard may be malevolent yet not amount to cruel and unusual
punishment”); Pena v. Greffet, 108 F. Supp. 3d 1030, 1033 (D. N.M. 2015) (“The Eighth
Amendment does not require officers to use the minimum force necessary or even reasonably
proportional force, but, rather, it requires only that they refrain from ‘malicious and sadistic’
violence, and that they direct their efforts to achieving a sincere penological end.”) (quoting
Hudson v. McMillian, 503 U.S. 1, 7 (1992). The court’s Eighth Amendment analysis must take
into consideration the highly-charged prison environment. See Sampley v. Ruettgers, 704 F.2d
491, 496 (10th Cir. 1983) (recognizing that in maintaining control of inmates, a prison guard
often is called upon to “make instantaneous, on-the-spot decisions concerning the need to apply
force without having to second-guess himself”).11

11

The Supreme Court has acknowledged that corrections personnel are entitled to “wideranging deference in the adoption and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline.” While trial courts and juries should not
30

“Ordinarily, an excessive force claim involves two prongs: (1) an objective prong that
asks if the alleged wrongdoing was objectively harmful enough to establish a constitutional
violation, and (2) a subjective prong under which the plaintiff must show that the officials
act[ed] with a sufficiently culpable state of mind.” Smith v. Cochran, 339 F.3d 1205, 1212 (10th
Cir. 2003) (internal quotation marks and citation omitted). Cf. Snyder v. Spilde, 15-cv-02169GPG, 2016 WL 1059612, at *2 (D. Colo. Mar. 17, 2016).
The first prong of the excessive force analysis “is contextual and responsive to
contemporary standards of decency.” Whitington v. Sokol, No. 06-cv-01245-PAB-CBS, 2009
WL 2588762, at *8 (D. Colo. Aug. 18, 2009) (quoting Hudson, 503 U.S. at 6-7). The law
recognizes that a prison guard's use of force against a prisoner does not always constitute a
constitutional violation. Sampley, 704 F.2d at 494. Not "every malevolent touch by a prison
guard gives rise to a federal cause of action." Hudson, 503 U.S. at 9 (citation omitted). See also
DeWalt v. Carter, 224 F.3d 607, 620 (7th Cir. 2000) (a "simple act of shoving [plaintiff]
qualifies as the kind of de minimis use of force that does not constitute cruel and unusual
punishment" and "fall[s] short of what is required to state a claim for excessive force under the
Eighth Amendment"); Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (allegations that
plaintiff "was bumped, grabbed, elbowed, and pushed” were not sufficient to "approach an
Eighth Amendment claim"). Cf. Hudson, 503 U.S. at 9-10 (holding that the Eighth Amendment's
prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition
de minimis uses of physical force, "provided that the use of force is not of a sort repugnant to the

“freely substitute their judgment for that of officials who have made a considered choice,”
actions taken by correctional staff in bad faith and for no legitimate purpose are not insulated
from judicial review. See Whitley v. Albers, 475 U.S. 312, 322 (1986).
31

conscience of mankind") (internal quotes and citation omitted).
It is also axiomatic that a plaintiff is not required to sustain either serious or significant
injuries to satisfy the objective component of an Eighth Amendment excessive force claim. See
Hudson, 503 U.S. at 9. Cf. Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992)
(holding that significant physical injury is not required for an Eighth Amendment excessive
force claim because the constitutional inquiry is on whether the infliction of pain was
unnecessary and wanton). As the Supreme Court explained in Wilkins v. Gaddy, 559 U.S. 34, 38
(2010), “[i]Injury and force . . . are only imperfectly correlated, and it is the latter that ultimately
counts. An inmate who is gratuitously beaten by guards does not lose his ability to pursue an
excessive force claim merely because he has the good fortune to escape without serious injury.”
Cf. United States v. LaVallee, 439 F.3d 670, 688 (10th Cir. 2006) (the “Eighth Amendment . .
protects against cruel and unusual force, not merely cruel and unusual force that results in
sufficient injury”).
This is not to say that the “absence of serious injury” is irrelevant to the Eighth
Amendment inquiry. “[T]he extent of injury suffered by an inmate is one factor
that may suggest ‘whether the use of force could plausibly have been thought
necessary’ in a particular situation.” The extent of injury may also provide some
indication of the amount of force applied.
Wilkins, 559 U.S. at 37 (internal citations omitted).
The second, subjective, element of the excessive force analysis asks whether the
defendant had a sufficiently culpable mind. Stated differently, this element focuses “on whether
force was applied in a good faith effort to maintain or restore discipline, or maliciously and
sadistically for the very purpose of causing harm.” Webb v. Sterling Correctional Officer
Delaney, No. 14-cv-1461-RBJ-CBS, 2016 WL 931218, at *3 (D. Colo. Mar. 11, 2016) (citing

32

Smith, 339 F.3d at 1212). Cf. Whitington, 2009 WL 2588762, at *8 (“Whether pain is wantonly
and unnecessarily inflicted depends, at least in part, on whether force could have plausibly been
thought to be necessary to maintain order in the institution and to maintain the safety of the
prison personnel or inmates.”) (quoting Hickey v. Reeder, 12 F.3d 754, 758 (8th Cir. 1993). See
also Serna v. Colo. Dep’t of Correction, 455 F.3d 1146, 1152 (10th Cir. 2006) (noting that the
court “can infer malicious, sadistic intent from . . . conduct itself where ‘there can be no
legitimate purpose’ for the officers’ conduct”).
In deciding whether the use of force was necessary or wanton, a court must consider “the
need for application of force, the relationship between that need and the amount of force used,
the threat reasonably perceived by the responsible officials, and any efforts made to temper the
severity of a forceful response.” Jackson v. Austin, 241 F. Supp. 2d 1313, 1318 (D. Kan. 2003)
(citation omitted).
a.

Undisputed Facts

Consistent with the standard of review imposed under Rule 56, the court starts its
analysis by identifying those material facts that are not in dispute. The following findings are
drawn from the parties’ briefs and attached exhibits, as well as the court’s review of video and
audio recordings from February 29, 2012 captured by a camera in the Upper Vestibule of Cell
House 1 at the Colorado Territorial Correctional Facility (“CTCF”) and a body camera worn by
Correctional Officer Jerod Robles.12 It cannot be gainsaid that the parties disagree as to whether
12

“While a court considering a summary judgment motion based upon qualified immunity
‘usually’ must ‘adopt .. . the plaintiff’s version of the facts,’ that is not true to the extent there is
clear contrary video evidence of the incident at issue.” Thomas v. Durastanti, 607 F.3d 655, 659
(10th Cir. 2010) (quoting Scott v. Harris, 550 U.S. 372, 378-80 (2007)). Like the court in
Thomas, I recognize that the video and audio evidence submitted by the parties “did not capture
everything” and, at least in part, is susceptible to differing interpretations.
33

any use of force was required on February 29, 2012, the actual amount of force used by
Defendants at various stages of the incident, and the nature and extent of Mr. Stevenson’s
injuries. That said, the following undisputed facts can be gleaned from the available record.
At all times relevant to this case, Plaintiff was an inmate at CTCF. During the early
morning of February 29, 2012, Mr. Stevenson admittedly refused to comply with Correctional
Officer Gary Meyers’ order to produce for inspection the contents of a manilla envelope in
Plaintiff’s possession. The documents in question were grievances that Mr. Stevenson intended
to submit to his case manager.13 Believing that he “only had to obey orders that were
‘reasonable,’” Mr. Stevenson refused to give his materials to Officer Meyers, preferring instead
to risk a “write-up” and possible disciplinary hearing. Mr. Stevenson walked away from Officer
Meyers at the Cell House 1 upper control center and returned to his cell, where he left his
materials. Plaintiff then gathered a towel, tooth brush and tooth paste and returned to the day
hall.14
Shortly thereafter, Sergeant Karen Clinkinbeard and Officer Jessica Hanson approached
Mr. Stevenson in the Upper Vestibule of Cell House 1. After a verbal exchange, Defendant
Clinkinbeard ordered Plaintiff to submit to being handcuffed.15 Mr. Stevenson disputed

13

Plaintiff’s Complaint does not allege any constitutional violations on the part of
Correctional Officer Meyers, and I find that any factual disputes concerning the specifics of
Plaintiff’s interaction with Officer Meyers on February 29, 2012 are not material to the Eighth
Amendment claim for excessive force in this case.
14

See Exhibit 1 (doc. #147-1, the Stevenson Declaration at ¶¶ 4 and 5), attached to
Plaintiff’s Response.
15

See Exhibit B (doc. #118-2, the Stevenson Deposition, at 63:9-24), Exhibit C (doc.
#118-3, the Affidavit and Incident Report of Defendant Clinkinbeard), and Exhibit E (doc. #1186, the Affidavit and Incident Report of Defendant Hanson), attached to Defendants’ Excessive
Force Motion.
34

Defendant Clinkinbeard’s statement that the earlier incident with Officer Meyers had “disrupted
the facility” and said that he wanted to see the shift commander.16 When Defendant
Clinkinbeard repeated her order for him to submit to handcuffing, Mr. Stevenson raised his arms
out of the officers’ reach and asked them to wait until the shift commander arrived.17 Mr.
Stevenson admits that he did not want to be handcuffed and told the officers that he would not
“cuff up.”18 Rather than complying with Sergeant Clinkinbeard’s commands, Mr. Stevenson
dropped to the floor and lay face down on the ground with his arms beneath his body.19 Mr.
Stevenson concedes that he simply “didn’t want to get cuffed up” and that he “resisted the
application of the cuffs.”20 Defendant Clinkinbeard admits that she attempted to gain control of

16

See Exhibit B (doc. #118-2, the Stevenson Deposition, at 63:16-24), attached to
Defendants’ Excessive Force Motion.
17

See Exhibit B (doc. #118-2, the Stevenson Deposition, at 71:16-21 and 73:9-12),
Exhibit C (doc. #118-3, the Affidavit and Incident Report of Defendant Clinkinbeard), and
Exhibit E (doc. #118-6, the Affidavit and Incident Report of Defendant Hanson), attached to
Defendants’ Excessive Force Motion.
18

See Exhibit B (doc #118-2, the Stevenson Deposition, at 66:9-15), attached to
Defendants’ Excessive Force Motion. See also Exhibit A (doc. #118-1, the Incident Report and
Affidavit of Officer Gary Meyers), Exhibit C (doc. # 118-3, the Affidavit and Incident Report of
Defendant Clinkinbeard), and Exhibit E (doc. 118-6, the Affidavit and Incident Report of
Defendant Hanson), attached to Defendants’ Excessive Force Motion
19

See Exhibit B (#118-2, the Stevenson Deposition, at 73:18-19), attached to Defendants’
Excessive Force Motion and Exhibit 1 (doc. #147-1, Stevenson Declaration, at ¶ 13), attached to
Plaintiff’s Response.
20

See Exhibit B (doc. #118-2, the Stevenson Deposition, at 78:15-16, 81:15-25, and 82:113), attached to Defendants’ Excessive Force Motion and Exhibit 1 (doc. #147-1, the Stevenson
Declaration, at ¶ 15) attached to Plaintiff’s Response. See also Exhibit U (CDOC Administrative
Regulation 150-01), attached to Defendants’ Excessive Force Motion. That Administrative
Regulation, at page 12, states that an offender commits the Class II offense of Disobeying a
Lawful Order when he “refuses to obey a verbal or written order or instruction given by a DOC
employee . . . that is reasonable in nature and that gives reasonable notice of conduct expected.”
35

Mr. Stevenson and secure his hands behind his back by using various control techniques,
including a Mandibular Angle pressure procedure.21
Sergeant Jason Espinoza and Officer Dominic Moschetti were the first officers to arrive
at the Upper Vestibule in Cell House 1 in response to calls for help. When they arrived, Mr.
Stevenson was lying prone on the floor and Defendants Clinkinbeard and Hanson were still
attempting to place him in handcuffs. Defendant Espinoza admits that while Mr. Stevenson was
lying unhandcuffed on the floor, he discharged his taser against Plaintiff’s back three times,
without apparent effect. Defendant Espinoza claims that he used his taser only after Mr.
Stevenson failed to comply with his repeated commands to submit to handcuffing, and that he
warned Plaintiff that he would be tased if he continued to disobey the officers.22 Additional
correctional officers continued to respond to the altercation at the Upper Vestibule, until there
were approximately twelve officers either joining in the effort to restrain Mr. Stevenson or
observing from the periphery of the scuffle on the floor.23
Correctional officers eventually were able to handcuff Plaintiff’s wrists behind his back.
Mr. Stevenson admits that he verbally refused to come to his feet as directed by the officers and
stated that they would have to carry him. According to Plaintiff, his compliance was “contingent

21

See Exhibit C (doc. # 118-3, the Affidavit and Incident Report of Defendant
Clinkinbeard), attached to Defendants’ Excessive Force Motion.
22

See Exhibit G (doc. #118-8, the Affidavit and Incident Report of Defendant Espinoza),
attached to Defendants’ Excessive Force Motion. See also Exhibit C (doc. #118-3, the Affidavit
and Incident Report of Defendant Clinkinbeard) and Exhibit H (doc. #118-9, the Affidavit and
Incident Report of Officer Dominic Moschetti), attached to Defendants’ Excessive Force
Motion.
23

See Exhibit D-1 (doc. #118-4, video footage from the Upper Vestibule camera),
attached to Defendants’ Excessive Force Motion.
36

on [the officers] loosening the [hand]cuffs before hand” because he “did not trust the staff to
loosen the cuffs once I stood up.”24 When Plaintiff continued to refuse to walk, he was lifted
onto a backboard and secured with straps. Officers then carried the backboard down the stairs
and placed the backboard on a gurney. Mr. Stevenson was brought by gurney to a medical clinic
and then to a segregation cell.
The Upper Vestibule camera footage captured the incident starting when Defendants
Clinkinbeard and Hanson first approached Mr. Stevenson. A conversation between Defendant
Clinkinbeard and Plaintiff continues for approximately 80 seconds, at which point Defendant
Hanson reaches for Mr. Stevenson’s left arm. Plaintiff immediately raises both arms vertically
over his head. Defendant Hanson reaches up and grabs Mr. Stevenson’s left elbow while
Defendant Clinkinbeard directs Plaintiff toward the wall to his left.25 While continuing to
engage in conversation with the officers, Mr. Stevenson drops to his knees beside the wall, with
Defendant Hanson holding his left wrist.26 Thereafter, Mr. Stevenson continues to passively
resist the officers’ attempts to apply handcuffs, eventually lying prone on the ground with his
hands under his body.27 The Upper Vestibule camera captures Plaintiff’s continued efforts to
keep his hands away from Defendants Clinkinbeard and Hanson, notwithstanding their efforts to
place his arms behind his back. While Plaintiff does not appear to be physically aggressive

24

See Exhibit 1 (doc. #147-1, the Stevenson Declaration, at ¶¶ 20 and 21), attached to
Plaintiff’s Response, and Exhibit B (doc. #118-2, the Stevenson Deposition, at 85:12-25 and
86:1-15), attached to Defendants’ Excessive Force Motion.
25

See Exhibit D-1, at time code 1:30.

26

See Exhibit D-1, at time code 1:40

27

See Exhibit D-1, at time code 1:58.
37

toward these officers, he clearly is not complying with their instructions and impeding their
efforts.
The Upper Vestibule camera footage shows the arrival of Defendant Espinoza and
Officer Moschetti.28 All four officers have their backs to the camera and are generally
obstructing the view of Mr. Stevenson who remains face down on the ground and unhandcuffed.
Additional officers continue to come into view and join the efforts to restrain Mr. Stevenson.
Approximately four and a half minutes after the start of the incident, Mr. Stevenson clearly has
been handcuffed and is being assisted to his feet, which have not been restrained.29 In the
camera footage, Mr. Stevenson almost immediately turns toward the floor, however his back, as
well as the backs of most of the officers are to the camera, and it is impossible to discern how or
why Plaintiff is going back toward the floor.30 However, once Mr. Stevenson is moving toward
the floor, the camera captures several officers holding his limbs and lowering him onto the
floor.31 At one point, with his wrists handcuffed behind his back and while lying on the floor,
Mr. Stevenson rolls toward his right side.32 It appears from the camera footage that he may be
speaking to the officers, although it is impossible for the uninitiated observer to identify any
particular male officer. For the next several minutes Mr. Stevenson remains handcuffed on the
floor with officers holding his extremities. During this period, Plaintiff’s legs are being held by

28

See Exhibit D-1, at time code 2:37.

29

See Exhibit D-1, at time code 4:41.

30

See Exhibit D-1, at time code 4:44.

31

See Exhibit D-1, at time code 4:49.

32

See Exhibit D-1, at time code 6:05.
38

officers, but are not in restraints. His left leg can be seen moving, but there does not appear to be
any aggressive kicks directed toward the officers. Eventually, six officers pick up Mr. Stevenson
and, with his body parallel to the floor, begin moving toward the stairs at the far end of the
Upper Vestibule.33 While the camera’s view is quite obscured, it appears that Mr. Stevenson
returns to the floor before reaching the stairs.34 Officers eventually pick Plaintiff up and carry
him the rest of the way to stairs before passing out of camera view.35
Audio and video recordings from Officer Robles’s body camera captured the events of
February 29, 2012 starting when Mr. Stevenson was placed on the backboard on the Upper
Vestible and continuing through his transport to and placement in a segregation cell. While
being strapped to the backboard, Mr. Stevenson can be heard asking officers to “loosen that
strap” and “let go of my arm,” and complaining that the officers are “doing that on purpose” and
“that’s unnecessary, I am restrained.” The audio also records Mr. Stevenson making repeated
references to “excessive force,” “violation of civil rights,” claiming that he asked the officers
“four times to loose these [handcuffs],” and telling the officers that they “can’t use these
handcuffs as punishment, there’s laws against that.” However, much of the audio tape is
inaudible to the uninformed listener, or garbled because Mr. Stevenson is either face down away
from the officer’s body camera or multiple people speaking at the same time.36
An anatomical form completed by Nurse Jody Bufmack on February 29, 2012 noted that

33

See Exhibit D-1, at time code 11:26.

34

See Exhibit D-1, at time code 11:54.

35

See Exhibit D-1, at time code 12:56.

36

See Exhibit D-2 (doc. #118-5, audio and video recordings from Officer Jerod Robles’
body camera), attached to Defendants’ Excessive Force Motion.
39

Mr. Stevenson had “six small raised red bumps” on his back, a chipped right front tooth, a
“superficial non-bleeding laceration” on his lip, “superficial abrasions x 2 both wrists,”
“indentation of skin . . . and abrasion” and that Plaintiff had complained of “neck pain.”
Apart from the foregoing undisputed facts, the court must view all material disputed facts
in a light most favorable to Mr. Stevenson and must draw all reasonable inferences in favor of
the non-moving party.
Mr. Stevenson, in his Response and attached exhibits, insists that during his initial
exchange with Defendants Clinkinbeard and Hanson, he was never “aggressive or hostile, nor
loud or boisterous,” and that he was not “physically resistive” after being ordered to cuff up.37
Id. Plaintiff contends that while he “remained lying in the prone position repeatedly asking to
talk to the shift commander,” Defendants Clinkinbeard and Hanson applied pressure techniques
to his head and neck area and “Clinkinbeard’s pressure techniques, accompanied by her twisting
of his neck and back, caused Mr. Stevenson significant pain and discomfort.”38 In addition to the
taser discharged by Defendant Espinoza, Plaintiff maintains that unspecified “officers [applied]
pressure techniques to his head and neck area, which caused pain and discomfort.”39 Mr.
Stevenson claims that while the officers’ pressure techniques and Defendant Espinoza’s taser

37

See Exhibit 1 (doc. #147-1, the Stevenson Declaration, at ¶¶ 11 and 13), attached to
Plaintiff’s Response.
38

See Exhibit 1 (doc. #147-1, the Stevenson Declaration, at ¶¶ 13 and 14), attached to
Plaintiff’s Response.
39

Notably, the audio portion of Officer Roble’s body camera recording captures Mr.
Stevenson saying “sure you don’t want to tase me some more, that shit felt kinda good.” See
Exhibit D-2 (doc. #118-5, at time code 36:42), attached to Defendants’ Excessive Force Motion.
40

caused him to move involuntarily, he never resisted “with violence or physical force.”40
According to Plaintiff, while he was still in the Upper Vestibule, an unidentified officer
“squeezed the handcuffs tightly around [his] wrists. The handcuff cut deep into his skin, touched
bone, and quickly began to cut off circulation.” Although Mr. Stevenson “immediately
complained that the cuffs were too tight and informed the officers that he had carpal tunnel and
nerve damage,” the officers did not respond.41 When Defendant Espinoza ordered Mr. Stevenson
to walk, he “again complained that the cuffs were too tight and asked that they be loosed,” but
Espinoza did not reply.42 Because Plaintiff refused to walk unless his handcuffs were adjusted,
officers picked him up. According to Mr. Stevenson, he was dropped to the floor by Defendant
Sullivan,43 who then used his hands and body weight to grind Plaintiff’s front teeth into the floor,

40

See Exhibit 1 (doc. #147-1, the Stevenson Declaration, at ¶¶ 17 and 18), attached to
Plaintiff’s Response.
41

See Exhibit 1 (doc. #147-1, the Stevenson Declaration at ¶ 19), attached to Plaintiff’s
Response.
42

See Exhibit 1 (doc. #147-1, the Stevenson Declaration at ¶ 22), attached to Plaintiff’s
Response.
43

Officers present in the Upper Vestibule on February 29, 2012 give differing accounts of
Plaintiff’s conduct and how he found himself back on the floor. Officer Meyers wrote in his
Incident Report that when “Stevenson eventually stood with the assistants (sic) of staff,” he
“attempted to assault staff by using a left knee strike. Once Offender Stevenson elevated his left
leg his right leg came out from under him and he was assisted to ground once again by
responding staff.” See Exhibit A (doc. #118-1, the Affidavit and Incident Report of Officer
Meyers), attached to Defendants’ Excessive Force Motion. In his Incident Report, Defendant
Cordova recounted that after Plaintiff refused to walk down the stairs from the Upper Vestibule,
“[s]taff attempted to pick him up and he started to resist, kicking his legs. They placed him back
on the floor [and] I ordered for a back board to be brought up to the vestibule.” See Exhibit J
(doc. #118-11, the Affidavit and Incident Report of Defendant Cordova), attached to Defendants’
Excessive Force Motion. In her Incident Report, Defendant Hanson recounted that Plaintiff
“began to stand up and began to become aggressive again, at which point we directed him to
floor for his safety and ours. I was holding his left leg when he continued to attempt to kick at
staff and continued to refuse order to comply.” See Exhibit E (doc. # 118-6, the Affidavit and
41

which caused a laceration to Plaintiff’s lip, chipped his teeth and strained his neck.44
Mr. Stevenson claims that he repeatedly complained to Defendant Cordova about his
handcuffs being too tight and asked several times to have the cuffs loosed, explaining to Cordova
that he already had carpal tunnel and nerve damage to his hands and wrist. While Plaintiff was
complaining to Defendant Cordova about the handcuffs, an unidentified correctional officer
allegedly bent Plaintiff’s wrists hard against the cuffs. That prompted Mr. Stevenson to ask
Defendant Cordova if he trained his staff to use handcuffs to inflict pain. According to Plaintiff,
Defendant Cordova did not reply, and also did not direct the officers to stop manipulating Mr.
Stevenson’s elbow and arms, and or to loosen the cuffs.”45

Incident Report of Defendant Hanson), attached to Defendants’ Excessive Force Motion.
Defendant Clinkinbeard claimed that Mr. Stevenson “refused to walk and struggled [and] went
back to the ground.” See Exhibit C (doc. 118-3, the Affidavit and Incident Report of Defendant
Clinkinbeard), attached to Defendants’ Excessive Force Motion. Correctional Officer Carol
Snow in her Incident Report, stated that Mr. Stevenson refused to “walk on his own therefore
being passively resistive by going limp.” See Exhibit O (doc. #118-16, the Affidavit and
Incident Report of Carol Snow), attached to Defendants’ Excessive Force Motion. Defendant
Benavidez also described how, when Stevenson was asked to walk down the stairwell, he
“would not comply and let his body go limp and he went to the ground with staff assistance.”
See Exhibit K (doc. # 118-12, the Affidavit and Incident Report of Defendant Benavidez),
attached to Defendants’ Excessive Force Motion. Defendant Espinoza recalled that “Stevenson
verbally refused to comply with instruction to be escorted [down the stairs] and dropped himself
to the floor.” See Exhibit G (doc. # 111-8, the Affidavit and Incident Report of Defendant
Espinoza), attached to Defendants’ Excessive Force Motion.
44

See Exhibit 1 (doc. #147-1, the Stevenson Declaration, at ¶¶ 23 and 24), attached to
Plaintiff’s Response.
45

See Exhibit 1 (doc. #147-1, the Stevenson Declaration, at ¶¶ 25-27), attached to
Plaintiff’s Response. Mr. Stevenson claims that in complaining about the handcuffs, he
specifically “asked about the pinky rule.” Defendant Cordova admitted during his deposition
that that handcuffs should not be used as punishment and that he recalled Mr. Stevenson twice
complaining that his handcuffs were too tight. Defendant Cordova conceded that someone could
experience pain if handcuffs were applied too tightly and that he had been taught to place a
finger between the handcuff and wrist as a way of determining whether a handcuff was too tight.
Defendant Cordova also acknowledged that on February 29, 2012, he did not apply this “pinky
42

Mr. Stevenson asserts that after he was handcuffed and strapped to the backboard,
Defendant Benavidez inflicted pain by bending his wrist and then, when Mr. Stevenson
complained, pulling on his elbow.46 As Plaintiff explained during his deposition: “The force was
excessive. They didn’t have to bend my wrists. They didn’t have to pull my elbow. They could
have loosened those cuffs at any time after I was subdued, you know, and I asked them to.”47
Mr. Stevenson claims that later on February 29, 2012, he took personal stock of his
injuries. Plaintiff asserts that he suffered swollen abrasions on his lip, a chipped right tooth, a
stiff and painful neck, painful welts on his back caused by the taser, painful swelling, bruising
and deep indentations on his wrists, pain in both hands, an injury to the base of his thumb, and
progressive nerve damage to that same thumb.48 Mr. Stevenson also complained that Nurse
Bufmack had not adequately documented his injuries.49 According to Mr. Stevenson, since the
incident on February 29, 2012, his left hand has gotten progressively worse and that “over time I

test” (or any other test) to determine whether Mr. Stevenson’s handcuffs should be loosened.
See Exhibit J (doc. #118-11, the Affidavit and Incident Report of Defendant Cordova) and
Exhibit V (doc. #118-22, the Cordova Deposition, at 63:13-21, 68:10-14, 69:9-12, 70:1-25, 71:123, 72:25, and 73:1-3), attached to Defendants’ Excessive Force Motion.
46

See Exhibit 1 (doc. #147-1, the Stevenson Declaration, at ¶ 27) attached to Plaintiff’s
Response. Defendant Benavidez acknowledges that he was involved in restraining Mr.
Stevenson in the Upper Vestibule and that when Plaintiff was placed on the backboard, “[he]
assisted by holding the lower right side of the backboard b his right leg [and] helped move him
down the stairwell.” See Exhibit K (doc. #118-12, the Affidavit and Incident Report of
Defendant Benavidez), attached to Defendants’ Excessive Force Motion.
47

See Exhibit 1 (doc. #147-1, the Stevenson Declaration, at ¶ 29, attached to Plaintiff’s
Response, and Exhibit B (doc. #118-2, the Stevenson Deposition, at 213:4-9), attached to
Defendants’ Excessive Force Motion.
48

See Exhibit 1 (doc. #147-1, the Stevenson Declaration, at ¶ 40), attached to Plaintiff’s
Response.
49

See Stevenson Declaration, at ¶¶ 42-49, attached to Plaintiff’s Response.
43

started losing feeling.”50
Given how the events of February 29, 2012 unfolded, the number of correctional officers
involved and the varying roles of each defendant, the court views the Complaint as raising two
distinct Eighth Amendment claims. The first claim revolves around the defendants’ actions and
use of force in placing Mr. Stevenson in restraints. The second claim addresses the defendants’
continued use of force after Plaintiff was handcuffed in the Upper Vestibule and placed on a
backboard for transport to the medical unit.
b.

Defendants’ Use of Force in Initially Restraining Mr. Stevenson

After reviewing the available records and considering that evidence in a light most
favorable to Mr. Stevenson, I find that Plaintiff has failed to come forward with facts sufficient
to establish that Defendants committed an Eighth Amendment violation by using force to place
him in restraints. Mr. Stevenson may have felt that Defendants Clinkinbeard’s response to his
earlier disagreement with Officer Meyers was unreasonable or inappropriate, but that did not
give him the right to refuse a lawful command. “While all prisoners are entitled to Eighth
Amendment protections against excessive use of force, inmates do not have a right to call the
shots when it relates [to] obedience to lawful commands from the officers.” Ellerbe v. Bennett,
No. 3:10-cv-130-RJC, 2012 WL 4321308, at *9 (W.D.N.C. Sept. 20, 2012), aff’d, 511 F. App’x
234 (4th Cir. 2013) (in granting the defendants’ motion for summary judgment and finding that
the plaintiff inmate did not present evidence to support his excessive force claim, the court noted
that a prisoner does not have the freedom “to cho[o]se which command to follow and which
command to disregard”). Cf. Provencio v. Vazquez, No. 1:07-cv-00069-AWI-JLT, 2010 WL
50

See Exhibit B (doc. #118-2, the Stevenson Deposition, at 7:8-20), attached to
Defendants’ Excessive Force Motion.
44

2490949, at *5 (E.D. Cal. Jun. 16, 2010), rec. adopted, 2010 WL 2854277 (Jul. 21, 2010) (while
Eighth Amendment protects inmates from the use of force that is sadistic and malicious, “it does
not mandate that prison officials . . . wait until an inmate deigns to comply with orders”); United
States v. Jennings, 855 F. Supp. 1427, 1436 (M.D. Pa. 1994), aff’d, 61 F.3d 897 (3d Cir. 1995)
(noting that the plaintiff inmate “was required to obey the lawful directions of the corrections
officers, including the order to cuff up” and rejecting the notion that a prisoner is justified in
refusing to obey commands based solely upon his or subjective belief).
As previously noted, the Eighth Amendment does not bar any and all use of force against
a prisoner, or convert "every malevolent touch by a prison guard” into a constitutional violation.
Moreover, the subjective prong of the Eighth Amendment standard distinguishes between force
applied in a good faith effort to maintain or restore discipline, and force applied “maliciously and
sadistically for the very purpose of causing harm.” Even if, in hindsight, Defendants
Clinkinbeard and Hanson might have responded differently to Mr. Stevenson’s frustrations and
even if other responding officers might have used different techniques to handcuff Mr.
Stevenson, that conclusion does not, standing alone, establish a constitutional violation.
Once Mr. Stevenson decided to disobey Defendant Clinkinbeard’s order to “cuff up” and
purposely frustrate Defendants’ efforts to secure his arms, he triggered a disciplinary
confrontation that necessarily led to the use of force. Cf. Easley v. Little, No. 1:14-cv-891, 2016
WL 4006676, at *7 (S.D. Ohio, June 28, 2016) (in granting the defendants’ motion for summary
judgment, the court held that defendant was entitled to use force, including pepper spray, to
maintain order; “Plaintiff’s action, while not egregious, still conveyed his desire to remain
uncooperative and disobey the officer’s orders”); Mitchell-Pennington v. McGovern, No. 09-

45

3106-SAC, 2009 WL 1938979, at *4 (D. Kan. Jul. 6, 2009) (in finding that plaintiff’s allegations
were insufficient to state an Eighth Amendment violation for use of excessive force, the court
noted that plaintiff had disobeyed orders and his “actions were clearly contrary to the legitimate
penological interest of maintaining control and discipline in the prison facility;” “under such
circumstances, the use of some physical force can hardly be considered repugnant to the
conscience of mankind”); Garrett v. Martin, No. 2:97CV28, 1999 WL 1201959, at *12 (E.D. Va.
Dec. 6, 1999), aff’d in relevant part, vacated in part on other issue, 229 F.3d 1142 (Table) (4th
Cir. 2000) (unpublished) (in finding in favor of defendants on the plaintiff’s Eighth Amendment
excessive force claim, the court observed that the confrontation with correctional officers
“stem[med] from plaintiff’s failure to obey institutional rules” and that “the force used to subdue
[the prisoner] was not only appropriate and necessary but also invited by plaintiff’s behavior”).
Under the circumstances, I find that no reasonable juror could conclude that Defendants’
use of force in subduing and placing Mr. Stevenson in handcuffs was excessive under the
prevailing Eighth Amendment standard. See Smuda v. Stewart, No. 1:14-cv-142, 2016 WL
3919409, at *5 (D. N.D. June 29, 2016), rec. adopted, 2016 WL 3926256 (Jul. 18, 2016)
(recommending that defendants’ motion for summary judgment be granted in a case where the
plaintiff inmate alleged excessive force based, in part, upon defendants’ use of pressure point
compliance techniques, including a mandibular angle). Mr. Stevenson admits that he did not
comply with the officers’ commands to be handcuffed, that he did not want to be handcuffed,
and that he positioned his hands under his body to impede the officers’ efforts. That conduct is
clearly evident in the Upper Vestibule camera footage. Defendant Espinoza states that he
utilized his taser only after Mr. Stevenson failed to comply with the officers’ commands, and

46

when it appeared that other compliance techniques were ineffective. On this record, a reasonable
juror could not find that Defendants Clinkinbeard, Hanson, Espinoza or other correctional
officers acted maliciously and sadistically in using force in order to gain control of Mr.
Stevenson and handcuff his wrists.
Defendants’ use of force was not unlike the circumstances in Shelton v. Chorley, No.
1:07-CV-560-MHM, 2011 WL 1253655 (E.D. Cal. Mar. 31, 2011), aff’d, 487 F. App’x 388 (9th
Cir. 2012). In that case, the court granted defendant’s motion for summary judgment as to the
plaintiff-inmate’s excessive force claim. The defendant correctional officer attempted to
handcuff Shelton after a verbal disagreement. The plaintiff ignored the officer’s commands to
stop resisting and continued “to twist his body while simultaneously stating that [he] was not
resisting.” Id. at *2. Mr. Shelton insisted that he was moving only because the defendant “was
twisting his arms in an especially painful fashion.” Id. The court concluded that
Plaintiff’s insubordination, agitated state, and decision to quickly turn his body
away from Defendant created a potentially dangerous situation necessitating the
use of force like that applied by Defendant. Likewise, Plaintiff’s argument that he
was not out of compliance with [prison policies] and that Defendant
misunderstood [Plaintiff’s position] is also irrelevant to his excessive force claim.
Plaintiff’s belief in the correctness of his position did not give Plaintiff the right to
disobey Defendant’s orders and does not therefore explain why the application of
force was unnecessary or excessive. . . . Plaintiff also admits that he was
resisting Defendant’s attempts to cuff him, an action which clearly necessitated
Defendant’s continued holding and twisting of Plaintiff’s arm and which is likely
to be painful under any circumstance.
Id. at *6. The same conclusion is warranted in this case.
I will grant Defendants’ Excessive Force Motion with respect to the use of force
employed by Defendants to restrain and handcuff Mr. Stevenson in the Upper Vestibule of Cell
House 1 on February 29, 2012. As to the use of force employed during this particular portion of

47

the incident, I find that Mr. Stevenson has not come forward with sufficient facts to establish a
constitutional violation by any defendant. Plaintiff’s evidence, even when viewed most
favorably, does not satisfy either the objective or subjective elements of an Eighth Amendment
excessive force claim. Cf. Green v. Branson, 108 F.3d 1296, 1301 (10th Cir. 1997) (“Unless it
appears that the evidence, viewed in the light most favorable to the plaintiff, will support a
reliable inference of wantonness in the infliction of pain . . . , the case should not go to the
jury.”) (quoting Whitley, 475 U.S. at 322).
c.

Defendants’ Actions After Mr. Stevenson was Restrained

Once Plaintiff was restrained and his wrists handcuffed behind his back, the evidentiary
record bearing on the Eighth Amendment excessive force claim is less certain. From my review
of the available record, and construing that record in a light most favorable to Mr. Stevenson, I
find that Plaintiff has presented evidence that raises factual disputes as to the use of force and
whether that force was used maliciously or wantonly after Mr. Stevenson was restrained with
handcuffs in the Upper Vestibule. Cf. Mitchell v. Krueger, 594 F. App’x 874, 876-77 (7th Cir.
2014) (in reversing the trial court’s grant of summary judgment in favor of defendants, held that
while the correctional officers’ initial use of force in subduing the plaintiff was not excessive,
there were genuine issues of material fact as to whether the defendants’ subsequent use of force
after the plaintiff was subdue was excessive).
Mr. Stevenson asserts that after he was restrained, he complained repeatedly that the
handcuffs were too tight and asked that they be loosened. Notably, Mr. Stevenson renewed that
request after he was strapped face-down on a backboard, and incapable of presenting any
physical threat to the several officers carrying or accompanying the backboard. Cf. Kitchen v.

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Dallas County, 759 F.3d 468, 479 (5th Cir. 2014) (recognizing that an Eighth Amendment
violation may be found “where a restrained or subdued person is subject to the use of force”).
Defendant Cordova, the shift commander at the time of the incident, recalls that Mr. Stevenson
twice asked that his handcuffs be loosened. There is some evidence from which a reasonable
juror could conclude that Mr. Stevenson’s requests fell on deaf ears, not because of any
legitimate security concerns, but rather because he would not be compliant and insisted that the
officers carry him. If believed by a jury, Mr. Stevenson’s testimony might suggest that the
handcuffs were not loosened in a good faith effort to maintain or restore discipline, but rather
maliciously for the purpose of causing pain. Cf. Cavanaugh v. Woods Cross City, 718 F.3d
1244, 1255 (10th Cir. 2013) (acknowledging in a § 1983 excessive force claim that disputed
facts that bear on the use of force ordinarily should go to the jury). See also Oliver v. Johnson,
No. 11-00520-KD-B, 2014 WL 4568724, at *20 (S.D. Ala. Sept. 11, 2014) (while the court held
that some use of force was appropriate in light of the plaintiff inmate’s refusal to comply with an
order that he submit to handcuffs, held that some portion of the plaintiff’s excessive force claim
should proceed to trial “[b]ased upon the parties’ conflicting allegations and the objective
medical evidence in this case;” finding that while “a close call, viewing the evidence in the light
most favorable to [plaintiff], he has created a genuine issue of whether his claims involve more
than a de minimis or insignificant use of force”).
Focusing on the allegations against the moving Defendants, Mr. Stevenson claims that
once he was handcuffed and strapped to the backboard, Defendant Benavides inflicted
unnecessary pain by bending his wrist and pulling on his elbow. That description may be at odds
with Defendant Benavides’ statement that once Plaintiff was on the backboard, he assisted

49

officers in carrying Stevenson down the stairs by “holding the lower right side of the backboard
by his right leg.” Defendant Benavides also stated in his Incident Report that he “was holding on
to the right arm of Stevenson when we proceeded to leave the holding cell in Cell House Three”
and he “went limp and was assisted to the floor.”51 The court is not in a position to resolve any
conflicts in the accounts provided by Plaintiff Stevenson and Defendant Benavides. Cf.
McCollum v. United States, No. 12-cv-01175-PAB-MJW, 2014 WL 788062, at *3-4 (D. Colo.
Feb. 26, 2014) (in denying defendants’ motion for summary judgment, the court concluded that
“even if the decision to restrain plaintiff was based entirely upon his admitted failure to
completely comply with a correctional officer’s commands . . . , a reasonable juror could find
that forcing a handcuffed prisoner to the floor and kneeing him in the back is greater force than
that particular emergency demanded”). At this juncture, it is enough that apparent
inconsistencies exist and I must accept Plaintiff version of the facts. Cf. Rutherford v. Hines,
No. 2:11-cv-3139-DCN-BHH, 2013 WL 670907, at *5 (D. S.C. Jan. 31, 2013), rec. adopted,
2013 WL 668510 (Feb. 22, 2013) (in denying defendants’ motion for summary judgment on
plaintiff’s claim for use of excessive force, the court recognized that the parties’ versions of
events were materially different and there was a genuine issue of material fact concerning
whether defendants used excessive force once the plaintiff was strapped into a restraint chair).
Mr. Stevenson also asserts that Defendants Cordova and Holloway were present on
February 29, 2012, but failed to exercise their supervisory responsibilities and intervene when
they were aware that subordinates were using force that was wholly unnecessary given that
Plaintiff was restrained. Cf. Woodward v. City of Worland, 977 F.2d 1392, 1400 (10th Cir.
51

See Exhibit K (doc. #118-12, Affidavit and Incident Report of Defendant Benavides),
attached to Defendants’ Excessive Force Motion.
50

1992) (holding that a defendant in a supervisory position may be liable for an alleged
constitutional violation when he or she personally directed subordinates to take the action that
resulted in the constitutional violation, or when the supervisor defendant had actual knowledge
that the subordinates were committing the alleged violation and acquiesced in its commission).52
Both Defendants Cordova and Holloway held supervisory positions on February 29, 2012 and
were present during much of the incident in the Upper Vestibule. Defendant Cordova admits
that Mr. Stevenson complained at least twice about the pain caused by the tight handcuffs, but he
(Cordova) took no action in response to those complaints. Cf. Webb, 2016 WL 931218, at *3-4
(in denying the defendant’s motion for summary judgment, the court held that the plaintiff had
put forth “sufficient evidence from which a reasonable jury could find” that defendant had
violated plaintiff’s right to be free from excessive force by subjecting him to unduly tight
handcuffs in response to comments made by the inmate). Compare Stanton v. Furlong, 73 F.
App’x 332, 334 (10th Cir. 2003) (in acknowledging the “necessarily circumstantial
determination” that arises in excessive force cases, held that the trial court properly entered
judgment for the defendant correctional officer after noting “the length of time during which the
handcuffed [inmate] voiced no discomfort while speaking with the shift commander, and the
relatively minor indicia of trauma ultimately found on medical examination”).
52

The Tenth Circuit in Arocho v. Nafziger, 367 F. App’x 942, 956 (2010) questioned
whether the analysis in Woodward was still controlling in the wake of the Supreme Court’s
decision in Iqbal. The Tenth Circuit suggested, without deciding, that a showing of “purpose
rather than knowledge is required” to impose liability on an official charged with violations
arising from his or her supervisory responsibilities. See also Dodds v. Richardson, 614 F.3d
1185, 1198 (10th Cir. 2010) (in acknowledging that consensus “remains elusive” as to the
meaning of the Iqbal’s discussion of supervisory liability under Bivens and § 1983, the Tenth
Circuit concluded that a plaintiff “must plausibly plead and eventually prove not only that the
official’s subordinates violated the Constitution, but that the official by virtue of his own conduct
and state of mind did so as well”).
51

Defendant Holloway, in his Incident Report, states that when he arrived in the Upper
Vestibule, Plaintiff was lying prone on the floor and “in hand restraints with staff surrounding
him.” Defendant Holloway then claims he observed Defendant Cordova speaking with Mr.
Stevenson for “several minutes” and that he (Holloway) heard Plaintiff refuse to obey Captain
Cordova’s command to stand up. At some point, Defendant Holloway placed leg restraints on
Mr. Stevenson, but also states in his Incident Report that “[s]taff aided Stevenson to stand up and
I [Holloway] attempted to apply pressure to his mandibular angle to no avail.”53 On this record,
the court cannot presume that Defendant Holloway’s use of force was necessary if Plaintiff was
in hand and leg restraints, and was being assisted to his feet by other officers. Cf. Ruiz v. Davis,
No. 09-2042-STA-cgc, 2010 WL 3521746, at *9-12 (W.D. Tenn. Sept. 7, 2010) (in denying in
part defendants’ motion for summary judgment as to plaintiff’s excessive force claim, the court
found that plaintiff had raised a triable issue as to whether defendants used excessive force once
they “had gotten Plaintiff under control;” also noted that it was “difficult to tell from the
[video]tape what [was] happening”). It also appears that Defendant Holloway may have
accompanied Mr. Stevenson as he was being transported on the gurney and, therefore, may have
been in a position to hear Plaintiff repeat his complaints about the handcuffs.
Finally, there appears to be a factual dispute as to the nature and extent of Plaintiff’s
injuries. Defendants contend that Mr. Stevenson’s injuries were de minimis, based in part on
the examination conducted by Nurse Bufmack and the corresponding record prepared on
February 29, 2012. However, Mr. Stevenson contends that Nurse Bufmack’s notations are
incomplete and do not reflect the full extent of his injuries. Plaintiff also contends that his
53

See Exhibit L (doc. #118-13, the Affidavit and Incident Report of Defendant
Holloway), attached to Defendants’ Excessive Force Motion.
52

attempts to obtain follow-up examinations and treatment were rebuffed. The court cannot resolve
this factual dispute in the context of the pending motion.
One remaining issue concerns the allegations against Defendant Williams. Although Mr.
Stevenson claims that Defendant Williams was present during a portion of the incident, his
description of Defendant Williams’ role or involvement is less than informative. According to
Plaintiff, after being carried down from the Upper Vestibule and placed on a gurney, he noticed
Lieutenant William’s paten (sic) leather shoes, and made the comment: “Isn’t that
right Williams, I recognize those shoes.” When I later viewed the video, it was
verified that Williams was present, as he can been seen standing in front of 3/4
left pod door blocking the view of the inmates and can be seen arriving in the
“Vestibule Video” at 3:40 minutes and can be seen leaving or going out the door
in the “Body Camera Video,” just prior to my being wheeled out of the cellhouse
door, at 3:40 minutes.54
A fair reading of that allegation suggests that Defendant Williams remained on the periphery of
the incident and played no active role in restraining Plaintiff. Mr. Stevenson’s Declaration of
December 15, 2015 contains no other references to Defendant Williams. Notably, in his
handwritten statement of March 14, 2012, Mr. Stevenson states that “[i]t would have been easy
for Lt. [Holloway] and Capt. Cordova to exercise their authority, and order the officers to loosen
the cuffs and otherwise use appropriate force. This did not happen.”55 Based on this record, I
find that Plaintiff has not come forward with fact sufficient to sustain an Eighth Amendment
54

See Exhibit 1 (doc. #147-1, the Stevenson Declaration at ¶ 29), attached to Plaintiff’s
Response. However, Officer Andrew Weaver stated in his Incident Report that Mr. Stevenson
arrived “in the cellhouse secured on backboard with velcro straps and being carried by Sergeant
Sulllivan, Sergeant Fontenot, Sergeant Benavidez, Sergeant Espinoza and Officer Robles.” See
Exhibit P (doc. #118-17, the Incident Report of Officer Weaver), attached to Defendants’
Excessive Force Motion.
55

See Exhibit F (doc. #118-7, Plaintiff’s handwritten statement, at page 6) attached to
Defendants’ Excessive Force Claim.
53

violation by Defendant Williams.
CONCLUSION
For the foregoing reasons, this court granted in part and denied in part Defendants’
Cordova, Nunez, Holloway, Topliss, Williams, Clinkinbeard, Espinoza, Bufmack, Benavidez,
and Bell’s Motion for Summary Judgment Based on Plaintiff’s Failure to Exhaust Prison
Administrative Remedies (doc. #117). Defendants Nunez, Toplis, Bufmak and Bell must be
dismissed from this action without prejudice based upon Plaintiff Stevenson’s failure to exhaust
administrative remedies as to those defendants. That motion was denied as to Defendants
Cordova, Holloway, Clinkinbeard, Espinoza and Benavidez. The dismissal of Defendants
Bufmack, Nunez and Bell rendered moot Defendant Bell’s Motion for Summary Judgment (doc.
#119) and Defendants Nunez and Bufmack’s Motion for Summary Judgment (doc. #120). I
granted Defendants’ Motion for Summary Judgment (doc. #118) as to Defendants Clinkinbeard,
Espinoza, and Williams, and denied the motion as to Defendants Cordova, Holloway and
Benavidez. The first claim for excessive use of force under the Eighth Amendment will proceed
as to Defendants Cordova, Holloway and Benavidez.
Dated this 4th day of October, 2016.
BY THE COURT:
s/ Craig B. Shaffer
United States Magistrate Judge

54