Helms v. Withington et al
MEMORANDUM AND ORDER granting 26 Defendant Sheriff Jeffrey Cope and the Lyon County Sheriff's Department's Motion for Summary Judgment. Signed by District Judge Julie A. Robinson on 12/21/2016. Mailed to pro se party Amy M. Helms by regular mail. (hl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AMY M. HELMS,
Case No. 16-CV-2388-JAR
GABE WITHINGTON, ET AL.,
MEMORANDUM AND ORDER
Plaintiff Amy Helms, proceeding pro se and in forma pauperis, brings this action against
Gabe Withington, John Jeffrey, Jessica Penn, Jeffrey Cope, Ronald Magana, the Sheriff’s
Department of Lyon County, and the Emporia Police Department alleging use of excessive force
and denial of medical treatment in violation of her constitutional rights under 42 U.S.C. § 1983.
Plaintiff alleges that when she was arrested, she was handcuffed, slammed against stairs, and
broke her back. She alleges that Sheriff Jeffrey Cope refused her medical treatment despite
multiple requests during her detention. This Court dismissed the Emporia Police Department on
October 19, 2016 (Doc. 32). This matter is before the Court on Defendants Sheriff’s Department
of Lyon County and Sheriff Jeffrey Cope’s (collectively “Lyon County Defendants”) Motion for
Summary Judgment (Doc. 26). Plaintiff has not filed a response and the time to do so has
expired.1 As explained more fully below, Defendants’ motion is granted.
Failure to Respond
Under D. Kan. Rule 7.4, “a party . . . who fails to file a responsive brief or memorandum
within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such brief or
See D. Kan. Rule 6.1(d)(2) (requiring a response to a motion for summary judgment to be filed and served
within 21 days). Plaintiff’s response would have been due 21 days after September 30, 2016, when Defendants filed
memorandum.”2 Furthermore, “[i]f a responsive brief or memorandum is not filed within the D.
Kan. Rule 6.1(d) time requirements, the court will consider and decide the motion as an
uncontested motion.”3 This standard is modified in the context of a motion for summary
judgment: “It is improper to grant a motion for summary judgment simply because it is
unopposed.”4 Under Fed. R. Civ. P. 56(e), the Court may deem a fact undisputed where the
nonmoving party fails to address it.5 The rule also permits the Court to grant summary judgment
“if the motion and supporting materials—including the facts considered undisputed—show that
the movant is entitled to it.”6
Plaintiff was apprised of the pending motion for summary judgment during a scheduling
conference held before Magistrate Judge Teresa J. James on October 5, 2016.7 Plaintiff
indicated that she intended to oppose the motion.8 However, she has neither filed a response nor
a motion for leave to file her response out of time. Further, Defendants filed and served on
Plaintiff a Notice to Pro Se Litigant Who Opposes a Motion for Summary Judgment pursuant to
D. Kan. Rule 56.1(f), which states that a failure to respond would lead to the Court’s acceptance
of Defendants’ facts as true.9 As a result of Plaintiff’s failure to respond, the Court may deem
the facts, as supported by the record, as undisputed.
D. Kan. Rule 7.4(b).
Thomas v. Bruce, 428 F. Supp. 2d 1161, 1163 (D. Kan. 2006) (quoting EEOC v. Lady Balt. Foods, Inc.,
643 F Supp. 406, 407 (D. Kan. 1986)).
Fed. R. Civ. P. 56(e)(2).
Fed. R. Civ. P. 56(e)(3).
See Doc. 31.
Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is no
genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.10 In
applying this standard, the court views the evidence and all reasonable inferences therefrom in
the light most favorable to the nonmoving party.11 “There is no genuine issue of material fact
unless the evidence, construed in the light most favorable to the nonmoving party, is such that a
reasonable jury could return a verdict for the nonmoving party.”12 A fact is “material” if, under
the applicable substantive law, it is “essential to the proper disposition of the claim.”13 An issue
of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the
The moving party initially must show the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law.15 In attempting to meet this standard, a movant that
does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim;
rather, the movant need simply point out to the court a lack of evidence for the other party on an
essential element of that party’s claim.16
Fed. R. Civ. P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir. 2008).
City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).
Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986)).
Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at
671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to
“set forth specific facts showing that there is a genuine issue for trial.”17 The nonmoving party
may not simply rest upon its pleadings to satisfy its burden.18 Rather, the nonmoving party must
“set forth specific facts that would be admissible in evidence in the event of trial from which a
rational trier of fact could find for the nonmovant.”19 To accomplish this, the facts “must be
identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated
Where, as here, the plaintiff proceeds pro se, the court must construe the plaintiff’s filing
liberally and afford the plaintiff’s filing some leniency.21 Additionally, “[c]ourts must take
added precautions before ruling on a motion for summary judgment when a pro se litigant is
involved . . . especially when enforcing these [technical] requirements might result in the loss of
the opportunity to prosecute or defend a lawsuit on the merits.”22 At the same time, it is not the
proper function of a district court to assume the role of advocate for a pro se litigant, and pro se
parties are expected to follow the Federal Rules of Civil Procedure, as all litigants must.23
Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).
Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at
671); see Kannady, 590 F.3d at 1169.
Adams, 233 F.3d at 1246.
Hall v. Bellmon, 935 F.2d 1106, 1110 (D. Kan. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520–21
(1972)); Azim v. Tortoise Capital Advisors, LLC, No. 13-2267-DDC-JPO, 2016 WL 3405126, at *5 (D. Kan. June
Wilson v. Skiles, No. 02-3190-JAR, 2005 WL 466207, at *1 (D. Kan. Feb. 4, 2005) (citing Hass v. U.S.
Air Force, 848 F. Supp. 926, 929 (D. Kan. 1994)).
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); McDaniels v. McKinna, 96 F. App’x 675, 578
(10th Cir. 2004).
Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it
is an important procedure “designed to secure the just, speedy and inexpensive determination of
The Lyon County Defendants have filed a Martinez Report.25 The Martinez Report is an
administrative record, assembled by the prison, that documents the factual investigation of a
prisoner’s claim. 26 Because Plaintiff has not responded, the factual findings in the Martinez
Report are deemed uncontroverted.
Plaintiff Amy Helms is a former detainee in the Lyon County Detention Center.
Defendant Jeffrey Cope is, and at all relevant times to Plaintiff’s allegations was, the duly
elected Sheriff of Lyon County, Kansas.
On June 6, 2014, Plaintiff was arrested by the Emporia Police Department on a charge of
battery of a law enforcement officer. Following her arrest, Plaintiff was transported to the Lyon
County Detention Center where she arrived at approximately 3:44 a.m. on that same morning.
After arriving at the Lyon County Detention Center, Plaintiff began acting out toward staff. She
was so uncooperative that she could not be immediately processed. She was placed into a
holding cell where she yelled obscenities, insulted and threatened staff, beat on her cell window,
stood on her bunk, threw her breakfast food around her cell, and smeared a banana on her cell
Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).
The Tenth Circuit endorsed the use of Martinez Reports in Martinez v. Aaron, 570 F.2d 317, 319 (10th
Cir. 1978). The Court considers the Martinez Report as part of the summary judgment record and treats the report
like it would an affidavit. If Plaintiff presents no evidence conflicting with the factual findings contained in the
Martinez Report, the Court may treat those findings as uncontroverted facts. Cf. Northington v. Jackson, 973 F.2d
1518, 1521 (10th Cir. 1992) (explaining that a court cannot accept the factual findings of a Martinez Report if the
prisoner presents conflicting evidence).
window. Plaintiff’s behavior became so problematic that she had to be temporarily confined to a
At around 3:30 p.m., Plaintiff was taken out of her holding cell to finish being processed
and booked. The Lyon County Detention Center has a booking procedure that requires the
booking officer to conduct a medical screening of the detainee. The medical screening
procedure requires the booking officer to observe the detainee and ask the detainee a series of
questions in an effort to ascertain his or her medical condition. This includes filling out two
forms—called the “Inmate Medical History” and “Inmate Medical Assessment” forms.
The Lyon County booking officer followed this policy when Plaintiff was booked into
the Lyon County Detention Center. According to the Inmate Medical Assessment form filled out
when Plaintiff was booked, Plaintiff answered “no” to the following question: “Are you in need
of special medical care?” According to the Inmate Medical History form, Plaintiff answered
“no” when asked about having suffered traumatic injury. Additionally, according to the Inmate
Medical Assessment form, the booking officer answered “no” to the following question: “Does
the [inmate] complain of pain?” On that same form, the booking officer answered “yes” to the
following questions: “Are there visible signs of alcohol or drug influence?”; “Are there visible
signs of withdrawal from alcohol or drugs?”; and “Is behavior suggestive of assault risk for staff
or other inmates?” After completing the booking process, Plaintiff was returned to the holding
cell. She was released from the Lyon County Detention Center on June 8, 2014 at approximately
Defendant Sheriff Jeffrey Cope typically has limited interaction with Lyon County
inmates and detainees. Defendant Cope has no involvement in the processing or booking of
detainees upon arrival at the Lyon County Detention Center. During Plaintiff’s detention in
Lyon County, Defendant Cope had no interaction with Plaintiff, including not seeing Plaintiff,
not communicating with Plaintiff, and not receiving reports from officers relating to Plaintiff.
Defendant Cope is unaware of, and the Lyon County Detention Center has no record of,
any request from Plaintiff, verbal or written, that she be taken to the hospital, receive medical
treatment, or visit any in-house medical staff during her detention. Defendant Cope is unaware
of, and the Lyon County Detention Center has no record of, any complaint by Plaintiff that she
was suffering from any back pain or injury while she was detained in the Lyon County Detention
Center. Nor did Defendant Cope have any knowledge or awareness that Plaintiff exhibited signs
or symptoms that would have indicated that she was experiencing, or at risk of experiencing, any
serious medical condition during her detention.
Defendant Cope did not learn of Plaintiff’s detention or activities in the Lyon County
Detention Center until the filing of this lawsuit.27
Lyon County Sheriff’s Department
Defendants argue that Defendant Lyon County Sheriff’s Department should be granted
summary judgment because it is an entity not capable of suit. Under Federal Rule of Civil
Procedure 17(b), the capacity of a party to be sued in federal court is to be determined by the law
of the state where the court is located.28 “Kansas courts have consistently held that subordinate
government agencies do not have the capacity to sue or be sued in the absence of statutory
The Court does not include ¶ 23 of Defendants’ statement of facts because it is an improper legal
conclusion denying liability. Doc. 28 at 13 (“Sheriff Cope did not attempt, intend to, or in any way cause or
contribute to any denial of medical treatment for Ms. Helms.”). This is not properly offered as a fact.
Fed. R. Civ. P. 17(b).
authorization.”29 While the statutory authority need not explicitly authorize the capacity to sue
or be sued, the statute should grant some power to the agency so that it has an implied capacity.30
“For example, conferring power on a subordinate government agency to own or control property
would have no meaning if the agency could not vindicate its rights in the property by suing in a
court of law.”31 Under Kansas case law, courts have found that county sheriff’s departments do
not have the capacity to sue or be sued.32 Accordingly, the Lyon County Sheriff’s Department
lacks capacity to be sued. Therefore, summary judgment is properly granted to dismiss all
claims against it.
Sheriff Jeffrey Cope
Defendants argue that Defendant Cope should be granted summary judgment because he
is protected by qualified immunity. “The doctrine of qualified immunity shields officials from
civil liability so long as their conduct does not violate clearly established . . . constitutional rights
of which a reasonable person would have known.”33 “[A] motion [for summary judgment] based
on a claim of qualified immunity imposes the burden on the plaintiff to show both  that a
constitutional violation occurred and  that the constitutional right was clearly established at
the time of the alleged violation.”34 The Court is “permitted to exercise [its] sound discretion in
Lowery v. Cty. of Riley, No. 04-3101-JTM, 2005 WL 1242376, *7 (D. Kan. May 25, 2005) (citing
Hopkins v. Kansas, 702 P.2d 311 (Kan. 1985)). See also Arbogast v. Kansas, No. 13-4007, 2016 WL 4719277, at
*2 (D. Kan. Sept. 9, 2016).
Id. (citing Lindenman v. Umscheid, 875 P.2d 964, 967 Syl. ¶ 10 (Kan. 1994); Bd. of Library Dirs. v. City
of Fort Scott, 7 P.2d 533, 535 (Kan. 1932)).
Id. (citing Bd. of Library Dirs., 7 P.2d at 535).
See, e.g., Mays v. Wyandotte Cty. Sheriff’s Dept., No. 15-9304, 2016 WL 81228, at *1 (D. Kan. Jan. 7,
2016) (“The Wyandotte County Sheriff's Department has neither explicit statutory authority nor any statutory power
that would imply capacity to sue or be sued”); Mayfield v. Harvey Cty. Sheriff’s Dept., No. 14-1307, 2015 WL
1399783, at *5 (D. Kan. Mar. 26, 2015) (“This court has applied the Kansas rule to Sheriff's Departments, in accord
with K.S.A. §§ 75–6101 to 6120.”); Fugate v. Unified Gov’t of Wyandotte Cty. /Kan. City, Kan., 161 F. Supp. 2d
1261, 1266 (D. Kan. 2001); Wright v. Wyandotte Cty. Sheriff’s Dep’t, 963 F. Supp. 1029, 1034 (D. Kan. 1997).
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotations omitted).
Lynch v. Barrett, 703 F.3d 1153, 1158 (10th Cir. 2013) (internal quotations omitted).
deciding whether to bypass the first question and proceed directly to the second.”35 The Court
exercises its discretion to only answer the question of whether there was a constitutional
Construing Plaintiff’s pleading liberally, the only allegation against Defendant Cope is
the denial of medical care in violation of the Fourteenth Amendment. 36 A Fourteenth
Amendment claim for denial of medical care is analyzed under the same standards as denial of
medical care under the Eighth Amendment.37 Prison officials violate a prisoner’s right to
medical care “when they act deliberately and indifferently to serious medical needs of prisoners
in their custody.”38 “Deliberate indifference has both an objective and subjective component.”39
To meet the objective component, “[t]he medical need must be sufficiently serious.”40 A
medical need is sufficiently serious “if the condition ‘has been diagnosed by a physician as
mandating treatment or is so obvious that even a lay person would easily recognize the necessity
for a doctor's attention.’”41 “Where the necessity for treatment would not be obvious to a lay
person, the medical judgment of the physician, even if grossly negligent, is not subject to secondguessing . . . .”42 To satisfy the subjective component, the prison official must have a sufficiently
Id. at 1159 (citing Pearson v. Callahan, 555 U.S. 223, 236–43(2009)).
As a pretrial detainee, Plaintiff’s claims would arise under the Fourteenth Amendment rather than the
Eighth. Bell v. Wolfish, 441 U.S. 520, 535, n.16 (1979).
Sandifer v. Green, 126 F. App’x 908, 910 (10th Cir. 2005) (citing Estate of Hocker ex rel. Hocker v.
Walsh, 22 F.3d 995, 998 (10th Cir. 1994)); Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th Cir. 1999) (“[W]e apply
an analysis identical to that applied in Eighth Amendment cases.”).
Goss v. Bd. of Cty. Comm’rs of Creek Cty., 645 F. App’x 785, 793 (10th Cir. 2016); Hunt v. Uphoff, 199
F.3d 1220, 1224 (10th Cir. 1999).
Al–Turki v. Robinson, 762 F.3d 1188, 1192–93 (10th Cir. 2014) (quoting Oxendine v. Kaplan, 241 F.3d
1272, 1276 (10th Cir. 2001)).
Mata v. Saiz, 427 F.3d 745, 751 (10th Cir.2005) (citing Green v. Branson, 108 F.3d 1296, 1303 (10th
culpable state of mind.43 That is, the plaintiff must show that the defendant knew that the
plaintiff “faced a substantial risk of harm and disregarded that risk, ‘by failing to take reasonable
measures to abate it.’”44 The substantial-harm requirement “may be satisfied by lifelong
handicap, permanent loss, or considerable pain.”45
Defendants argue that Defendant Cope did not cause a deprivation of Plaintiff’s clearly
established constitutional right to medical care for three reasons. First, there is no evidence to
suggest Sheriff Cope participated in the alleged deprivation. Second, Plaintiff cannot satisfy the
objective prong of the claim for denial of medical care because she cannot show she suffered a
serious medical condition. Third, Plaintiff cannot satisfy the subjective prong of the claim for
denial of medical care because the evidence confirms that Defendant Cope took no actions with a
culpable state of mind.
The Court finds that Plaintiff has not presented evidence that a constitutional violation
occurred—namely, that Plaintiff was denied medical care in violation of the Fourteenth
Amendment. First, there has been no evidence produced that any alleged injury was an
objectively, sufficiently serious injury to be cognizable under the Fourteenth Amendment. In
determining whether a medical need or harm is sufficiently serious under the objective
component, courts consider both the symptoms initially presented to the prison employee as well
as any resulting harm.46 While a broken back is a sufficiently serious medical condition, there is
no evidence that Plaintiff suffered such an ailment. In fact, the evidence specifically contradicts
that Plaintiff suffered a broken back. It is alleged that Plaintiff broke her back when she was
Duran v. Donaldson, No. 15-2160, 2016 WL 6087651, at * 3 (10th Cir. Oct. 18, 2016) (citing Farmer v.
Brennan, 511 U.S. 825, 834 (1994)).
Hunt, 199 F.3d at 1224 (quoting Farmer, 511 U.S. at 847).
Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001).
Mata, 427 F.3d at 753.
arrested. However, upon entering the Lyon County Detention Center immediately following
arrest, Plaintiff caused such disruption, including physical conduct like beating on her cell door
and standing on her bed, that she could not be processed for almost twelve hours. Plaintiff posed
such a risk to herself and others that she had to be restrained in a chair. No reasonable juror
could conclude that if Plaintiff suffered from a broken back, that she would be able to cause such
a disruption in a physical manner.
When she was processed, the evidence shows—both by her own admission and by
observation from the booking officer—that she was not suffering any trauma or injury. The
Inmate Medical History and Inmate Medical Assessment forms do not reflect any injury.
Plaintiff admitted that she did not suffer a traumatic injury. A broken back is a sufficiently
serious injury that a reasonable jury could only conclude that an officer would note or Plaintiff
would have told the officer during the booking process that Plaintiff had a broken back.
Further, there has been no evidence produced of “lifelong handicap, permanent loss, or
considerable pain.”47 Beyond Plaintiff’s allegations in her Complaint, Plaintiff has produced no
evidence she suffered from a broken back or that there has been any resulting harm. Defendant
Cope has presented objective evidence that negates Plaintiff’s bare and conclusory allegation of
injury. In sum, no reasonable juror could conclude from the evidence that Plaintiff suffered from
injuries “sufficiently serious” to violate the Fourteenth Amendment.
Second, Plaintiff has not satisfied the subjective component of deliberate indifference to
medical needs because there has been no evidence produced that Defendant Cope acted with a
culpable state of mind. The plaintiff must allege that the prison official “kn[e]w[ ] of and
Garrett, 254 F.3d at 950.
disregard[ed] an excessive risk to inmate health or safety.”48 In other words, the defendant
“must both be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.”49 “Allegations of ‘inadvertent failure
to provide adequate medical care’ or of a ‘negligent . . . diagnos[is]’ simply fail to establish the
requisite culpable state of mind.”50
Applying those standards in this case, there is no evidence Defendant Cope or any officer
under his supervision knew or should have known Plaintiff allegedly broke her back. On the
face of the Complaint, Plaintiff alleges that Defendant Cope refused her treatment despite her
numerous requests.51 However, beyond Plaintiff’s allegation in the Complaint, there is no
evidence that Plaintiff reported her condition to Defendant Cope or any other officer. In fact, the
communication for which there is evidentiary support—the two forms completed during the
booking process— negates that she reported her injury or asked for medical care. There is no
evidentiary support that Plaintiff communicated with Defendant Cope at all during her detention,
and it is insufficient for her to merely state she did in the Complaint. There is no evidence that
Defendant Cope appreciated but ignored a substantial risk of serious harm.
In sum, Plaintiff has failed to present evidence as to the subjective or objective prong of
deliberate indifference to medical needs that constitute a violation under the Fourteenth
Amendment. Because Plaintiff has not established a constitutional violation, she has failed to
meet her burden. Therefore, Defendant Cope is properly granted qualified immunity.
White v. Kan. Dep’t of Corrs., No. 16-3098, 2016 WL 6694538, at *5 (10th Cir. Nov. 15, 2016) (citing
Farmer, 511 U.S. at 837).
Wilson v. Seiter, 501 U.S. 294, 297 (1991) (citations omitted).
Doc. 1 at 3.
IT IS THEREFORE ORDERED BY THE COURT that Defendant Sheriff Jeffrey
Cope and the Lyon County Sheriff’s Department’s Motion for Summary Judgment (Doc. 26) is
IT IS SO ORDERED.
Dated: December 21, 2016
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
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