Snavely v. Kansas Department of Corrections et al

Filing 179

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 150 for relief and for sanctions is denied. Plaintiff's motion 155 for sanctions is denied. Defendants' motion 156 to dismiss or for summary judgment is granted. Plaintiff' ;s motion 165 to clarify orders is denied. Plaintiff's motion 170 for sanctions is denied. Plaintiff's claims against unserved defendants are dismissed without prejudice. Signed by Senior District Judge Sam A. Crow on 8/12/2013. (Mailed to pro se party William H. Snavely, III by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIAM H. SNAVELY, III,
Plaintiff,
v.

CASE NO. 05-3468-SAC

KANSAS DEPARTMENT OF CORRECTIONS, et al.,
Defendants.

MEMORANDUM AND ORDER

This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a prisoner in state custody, proceeds pro se. He
commenced

this

action

with

twenty

claims

against

sixty-one

defendants, alleging violations of his constitutional rights caused
by the conditions of his confinement. The court has limited the action
to nine claims against twenty-four defendants.
On October 8, 2012, defendants Blankenship, Foster, Green,
McKune, Nance, Spear, Trexler, Walker, and Werholtz (“defendants”)
filed a motion to dismiss, or, in the alternative for summary judgment
(Doc. 156). Plaintiff filed a response to that order on November 6,
2012 (Doc. 167), asserting, in part, that he did not receive a copy
of that motion or the supporting memorandum.
On May 22, 2013, the court directed counsel for the defendants
to transmit additional copies of those documents to the plaintiff;
the court received notice on the same day that the documents had been
transmitted. Thereafter, the court entered an order directing the
plaintiff to submit any supplement to his response on or before June

24, 2013, and advising that no additional extension would be granted.
Plaintiff filed a response on June 13, 2013 (Doc. 176), and
defendants have submitted a reply (Doc. 177). The court has examined
the record and enters the following findings and order.
Pro se status
As noted, plaintiff is proceeding without counsel. Accordingly,
his pleadings, including those related to the present motion for
summary judgment, must be given a liberal construction. See Hall v.
Bellmon, 935 F.2d 1106, 1110, & n. 3 (10th Cir. 1991); Hill v.
Corrections Corp. of America, 14 F.Supp.2d 1235, 1237 (D. Kan. 1998).
The court must excuse a failure to cite proper legal authorities,
confusion of legal theories, and poor grammatical composition. Hall,
935 F.2d at 1110. However, plaintiff’s pro se status does not relieve
him from an obligation to follow the rules of procedure, including
the Federal Rules of Civil Procedure. See Kay v. Bernis, 500 F.3d 1214,
1218 (10th Cir. 2007) and Nielsen v. Price, 17 F.3d 1276, 1277 (10th
Cir. 1994)(internal punctuation and citations omitted)(“This court
has repeatedly insisted that pro se parties follow the same rules of
procedure that govern other litigants.”)
Likewise, while the court will make allowances in reviewing
plaintiff's pleadings, “the court cannot take on the responsibility
of serving as the litigant’s attorney in constructing arguments and
searching the record.” Garrett v. Selby Connor Maddux & Janer, 425
F.3d 836, 840 (10th Cir. 2005). A pro se party may not rest upon
conclusory factual allegations because “a pro se plaintiff requires
no special legal training to recount the facts surrounding his alleged
injuries”. Hill v. Corrections Corp. of America, 14 F.Supp.2d 1235,
1237 (D.Kan. 1998). Accordingly, the court must dismiss claims that

are not supported by well-pleaded allegations of fact.
Summary judgment standard
Summary

judgment

is

appropriate

where

the

pleadings,

depositions, answers to interrogatories, and admissions, together
with affidavits, if any, show there is no genuine issue as to any
material fact, and that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c). In evaluating a motion for summary
judgment, the court views the evidence in the light most favorable
to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367
(10th Cir. 1988).
Pursuant to Rule 56(a), a court must grant summary judgment “if
the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.Pro. 56(a). The moving party bears “both the initial burden
of production on a motion for summary judgment and the burden of
establishing that summary judgment is appropriate as a matter of law.”
Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir.
2003).
In response, the opposing party may not simply rest on its
pleadings but must present specific facts showing there is a genuine
issue for trial and significant supporting evidence. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A genuine issue exists
if “there is sufficient evidence on each side so that a rational trier
or fact could resolve the issue either way.” Thorn v. Bristol-Myers
Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003).
The summary judgment rule is not a “disfavored procedural
shortcut” but instead, a procedure “designed to secure the just,
speedy and inexpensive determination of every action.” Celotex Corp.

v. Catrett, 477 U.S. 317, 327 (1986)(quoting Fed.R.Civ.P. 1).
Analysis
As noted, this matter is proceeding on nine claims. Defendants
seek summary judgment or dismissal on all of these claims. While
plaintiff filed a response to their motion, he has not made any effort
to controvert the facts identified by defendants. The court therefore
examines the claims on the defendants’ uncontroverted statement of
the relevant facts.
During all relevant times, plaintiff was incarcerated in the
custody of the Kansas Department of Corrections at the Lansing
Correctional Facility (LCF). The defendants are: Roger Werholtz, the
Secretary of Corrections, now retired; David McKune, Warden of the
LCF,

now

retired;

Michael

Green,

EA1

Officer

at

LCF;

Sharon

Blankenship, the Fire/Safety Officer of the LCF; Deborah Walker, a
Unit Team Manager at LCF; Charles Nance, a Corrections Supervisor II
at LCF; James Spear, a Corrections Supervisor I at LCF; Jerry Trexler,
a Corrections Supervisor I at LCF; and Amber Foster, a Corrections
Officer at LCF.
Claims 1 and 2
In September 2005, plaintiff was a dining room porter in the
maximum security dining room.1 Plaintiff alleges that he reported on
September 2, 2005, that the lights in the porter’s closet were not
working and that defendant Walters picked up the phone to address that
report. 2 Plaintiff claims that when he returned to work on the
following morning, defendant Foster was on duty and the closet lights
had not been repaired. On September 3, 2005, plaintiff fell in the

1
2

Doc. 39, par. 1.
Id., par. 10-12.

porter’s closet shortly after noon and was struck by falling shelving.
Defendant Foster, a corrections officer, responded and called for
medical response, waited for the responders to arrive, and then
prepared Incident Report 01-06-0448.3
Plaintiff claims he is entitled to relief because defendants
Walters, Foster, and Blankenship acted with deliberate indifference
to his safety and failed to provide safety training to prisoners
assigned as dining room porters.
Deliberate indifference
“The

Eighth

Amendment’s

prohibition

on

cruel

and

unusual

punishment imposes a duty on prison officials to provide humane
conditions of confinement, including…reasonable safety from serious
bodily harm.” Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir.
2008)(citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)).

Under this

standard, a prison official is liable if the official “knows of and
disregards an excessive risk to inmate health or safety”, Farmer, id.
at 828.
To establish a claim for relief under this standard, a plaintiff
must show both that he was “incarcerated under conditions posing a
substantial risk of serious harm, and … defendants were deliberately
indifferent to his safety.” DeSpain v. Uphoff, 264 F.3d 965, 971-72
(10th Cir. 2001)(citing Farmer, 511 U.S. at 834).
Plaintiff must meet two requirements: “[f]irst, the deprivation
alleged must be, objectively, ‘sufficiently serious.’” Farmer, id.,
(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)(“For a claim…based
on a failure to prevent harm, the inmate must show that he is
incarcerated under conditions posing a substantial risk of serious
3

Doc. 65-3, Martinez report, p. 3.

harm.”) Next, plaintiff must show the defendants have a “sufficiently
culpable state of mind.” Wilson, 501 U.S. at 297, namely, “one of
‘deliberate indifference’ to inmate health or safety.” Farmer, 511
U.S. at 834.
Defendants

assert

that

plaintiff

has

failed

to

establish

deliberate indifference. They point out that he acknowledges that
after he reported that the lights were out in the porter’s closet,
defendant Walters made a telephone call to report the situation, and
they contend this was a reasonable response. Likewise, when defendant
Foster came on duty the next day, even if she was aware that the lights
were not working properly, there is no evidence that she knew of any
spill in the closet or any other substantial risk to safety.
The record does not support a claim of deliberate indifference.
The facts alleged by plaintiff show that defendant Walters took action
to report the lights immediately upon receiving notice, and there is
no allegation that defendant Foster knew of any conditions in the
closet that posed any substantial risk of harm.
Failure to train
Plaintiff asserts that he did not receive proper training for
his assignment as a dining room porter “regarding safety procedures
and maintaining a safe working environment”.4
Generally, to prevail on a claim seeking liability for failure
to train or supervise, a plaintiff must show “the need for more or
different training is so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, that the policy
makers … can reasonably be said to have been deliberately indifferent
to the need for additional training.” Jenkins v. Wood, 81 F.3d 988,
4

Doc. 39, p. 47.

994 (10th Cir. 1996).
Defendants point out that plaintiff has done no more than
identify defendant Blankenship as the Fire/Safety Officer for LCF and
to assert that he had not been trained during the brief period, less
than one week, that he had been assigned as a dining room porter.
The record does not suggest any specific act or omission by
defendant Blankenship, nor does plaintiff identify any specific
information about the training he believes was needed or any causal
link between the lack of training and his fall. His bare assertion
that he did not receive appropriate training does not establish any
basis to impose liability on the defendant.
The court concludes defendants Walters, Foster, and Blankenship
are entitled to summary judgment on these claims.
Claim 3
Plaintiff has been restricted from climbing stairs since July
28, 2005. On September 3, 2005, he was issued a cane.5
In mid-September 2005, he reported that he had slipped and fallen
on the way to use the shower in Housing Unit B-1 (B-1).6 Defendant
Trexler prepared Incident Report 01-06-0544 on September 15, 2005,
reporting that plaintiff reported a fall and had been taken to the
facility medical clinic by a nurse.7
On or about September 17, 2005, plaintiff filed a grievance
seeking the use of handicapped shower facilities. He received a
response explaining that because he was not classified by medical
staff as “unassigned medical” or “handicapped”, he would be required
5

Doc. 84, par. 11-12.

6

Doc. 39, par. 31; Doc. 65-3, p.2.

7

Doc. 65-3, p.2.

to use the regular shower facilities in B-1.8
On October 5, 2005, William L. Cummings returned an undated
grievance prepared by plaintiff to him because he had failed to comply
with the grievance procedures under K.A.R. 44-15-102(c)(4).9
Plaintiff claims he was denied proper accommodations for his
disability and that he was subjected to retaliatory conduct.
Defendants seek summary judgment on this claim based upon
plaintiff’s failure to exhaust administrative remedies, his failure
to state a claim under the Americans with Disabilities Act (ADA), and
his failure to establish a claim under the Eighth Amendment.
Exhaustion of grievance procedures
Pursuant to the Prison Litigation Reform Act of 1995 (PLRA), a
prisoner must exhaust all available administrative remedies before
commencing an action under §1983 or other federal law. Section 42
U.S.C. § 1997e(a) states:
No 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.
This procedure is mandatory, and a prisoner may not pursue an
unexhausted claim in federal court. Jones v. Bock, 549 U.S. 199, 211
(2007). The requirement that a prisoner exhaust all available
grievance procedures “applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes,
and whether they allege excessive force or some other wrong.” Porter
8

Doc. 65-3, p. 10.

9

Doc. 65-3, p. 7.

v. Nussle, 534 U.S. 516, 532 (2002). A plaintiff must properly pursue
the grievance procedure, and “[a]n inmate who begins the grievance
process but does not complete it is barred from pursuing a § 1983 claim
under the PLRA for failure to exhaust his administrative remedies.”
Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
In Kansas, a state prisoner ordinarily may exhaust remedies by
seeking an informal resolution of a grievance with facility staff,
and then by presenting formal, written grievances in turn to the Unit
Team, the Warden, and the Secretary of Corrections. K.A.R. 44-15-101.
Under certain circumstances, a prisoner may present a grievance
directly to the level at which corrective action is available. K.A.R.
44-15-106. However, if the recipient determines the matter does not
require processing as an emergency, the grievance may be sent for
processing at a lower level. Id.
Here, plaintiff sent an undated grievance, received September
30, 2005, directly to defendant Werholtz, then Secretary of the Kansas
Department of Corrections, alleging a lack of accommodation for the
failure to assign him to a unit with handicapped showers. A designee
returned the grievance to defendant McKune, then Warden, because
plaintiff failed to follow the appropriate procedure.
On October 26, 2005, plaintiff sent additional grievance forms
to defendant Werholtz on several topics, again including the lack of
handicap-access showers. Again, a designee returned the grievances
to defendant McKune.
The attachments to the Martinez report suggest that plaintiff

submitted a grievance in mid-September

2005 to the Unit Team

concerning his attempts to shower in another cellhouse or to use shower
facilities in the medical clinic. The response advised plaintiff that
he had not been classified as medically unassigned or handicapped and
that unit staff had received instructions from the Captain to have
him shower in the cellhouse to which he was assigned.10 There

is

no showing on the record that the Warden entered any response, or that
the plaintiff made any subsequent appeal to the Secretary after the
time for a response. Accordingly, the record does not support a finding
of exhaustion of remedies.
Failure to state a claim for relief
Defendants also assert that plaintiff has failed to state a claim
under either the Eighth Amendment or the ADA.
Prison officials violate the Eighth Amendment by deliberate
indifference to the serious medical needs of a prisoner. Estelle v.
Gamble, 429 U.S. 97, 104 (1976). As previously stated, an Eighth
Amendment claim has both a subjective component and an objective
component. To establish the objective component, the prisoner must
establish a sufficiently serious deprivation. See Farmer, 511 U.S.
at 834. To establish the subjective component, the prison official
must be shown to have a mental state of “’deliberate indifference’
to inmate health or safety.” Farmer, id., (quoting Wilson v. Seiter,
501 U.S. 294, 302-03 (1991)).

10

Doc. 65-3, p. 10, grievance response dated 9/20/05.

A difference of opinion between a prisoner and prison medical
personnel concerning a diagnosis or the appropriate course of
treatment

is

not

sufficient

to

establish

an

Eighth

Amendment

violation. Estelle, 429 U.S. at 107; Ramos v. Lamm, 639 F.2d 559, 575
(10th Cir. 1980).
Here, plaintiff’s preference for a handicapped-access shower is
not supported by a medical determination. Rather, as noted by
defendants,

staff

members

contacted

facility

medical

staff

to

determine whether plaintiff’s request was supported by any medical
finding or recommendation but found no information supporting his
request; in addition, defendants point out that a staff member
reported that he observed plaintiff using a non-handicap-access
shower in early October 2005.11
There

is

no

evidence

to

support

an

objective

need

for

handicap-access shower facilities, nor is there evidence of any
deliberate indifference by any defendant to the plaintiff’s health
or safety. There is no claim for relief under the Eighth Amendment.
Next, the ADA does not apply to disputes concerning the adequacy
of medical care provided to a prisoner. See Rashad v. Doughty, 4
Fed.App’x 558, 560 (10th Cir. 2001)(“[T]he failure to provide medical
treatment to a disabled prisoner, while perhaps raising Eighth
Amendment concerns in certain circumstances, does not constitute an
ADA violation.”) See also Nasious v. Colorado, 495 Fed.Appx. 899, 902
(10th Cir. 2012)(quoting Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.

11

Doc. 65-3, p. 4.

1996)(explaining the ADA “would not be violated by a prison’s simply
failing to attend to the medical needs of its disabled prisoners. No
discrimination is alleged; [plaintiff] was not treated worse because
he was disabled…The ADA does not create a remedy for medical
malpractice.”)
Plaintiff has shown only that he did not receive the access to
a particular type of shower facility that he desired. There was no
medical finding supporting that preference, nor is there any showing
that

he

was

subjected

to

deliberate

indifference

or

any

discrimination. Defendants are entitled to summary judgment on this
claim.
Claim 4
On November 17, 2005, defendant Trexler required plaintiff to
stand for formal count.12 On the following day, plaintiff filed two
grievances

concerning

that

requirement.

13

The

grievances

were

consolidated and numbered as AA20060524. On the same day, the Unit
Team Manager (UTM) responded with a finding that plaintiff did not
have an exemption from the requirement that he stand during formal
count.14
Plaintiff appealed to the warden, defendant McKune, who upheld
the response of the UTM.15 Plaintiff next appealed to the Secretary,

12
13
14
15

Doc. 39, par. 52, and Doc. 84, par. 17.
Doc. 65-3 at 21.
Doc. 65-3, p. 24.
Doc. 65-3, p. 19.

who, through a designee, also upheld the response.16
In March 2006, plaintiff sent a letter to defendant Werholtz
concerning the requirement that he stand for formal count. Werholtz
consulted with the Contracts Management Consultant to determine if
there was any medical reason plaintiff could not stand for count and
whether he needed any handicap aide.17 In response, Kim Palmer, Health
Services Aide, replied that a physical capacity profile prepared by
rehabilitation specialists in January 2006 had found that plaintiff
could perform medium to heavy work, could exert 20-50 pounds of force
occasionally, 10-25 pounds of force frequently, and up to 10 pounds
of force constantly.18
On April 5, 2006, the Secretary’s designee wrote to plaintiff
explaining that his request for a handicap aide was denied and finding
no reason to excuse him from standing during count.19
Plaintiff alleges these actions violated the Eighth Amendment.
As discussed, an Eighth Amendment violation occurs where prison
officials act with deliberate indifference to a condition that is
sufficiently serious. Farmer, 511 U.S. at 834. However, where the
plaintiff fails to demonstrate “a specific deprivation of a human
need, an Eighth Amendment claim based on prison conditions must fail.”
Shifrin v. Fields, 39 F.3d 1112, 1114 (10th Cir. 1994)(internal
citation omitted).
Defendants Trexler and Spear argue there is no ground for relief,
16
17
18
19

Doc. 65-3, p. 17
Doc. 65-3 pp. 13-16.
Id.
Doc. 65-3, p. 12.

and the court agrees there is no basis for liability. First, as an
objective matter, there is no medical determination that supports
plaintiff’s claim that he was exempt from standing for count. Second,
there is no evidence that the defendants acted with any deliberate
indifference to plaintiff’s health or safety. Rather, they consulted
with appropriate staff members and required plaintiff’s compliance
with count based upon the information provided. Defendants Trexler
and Spear are entitled to summary judgment.
Claim 7.
Plaintiff states he was not provided assistance after a fall.
The complaint states that he requested a wheelchair from defendant
Green while returning to his cell from a meal.20 No date is provided
by plaintiff, though defendants suggest, based upon medical records,
that this event occurred in mid-June 2006.21
At that time, plaintiff was allowed to use a cane.22 Nurses’ notes
from June 12, 2006, state that plaintiff had been requesting transfer
by a wheelchair on multiple occasions, and that plaintiff had stated
on that day, “If you don’t take me by wheelchair then I will just fall.”
The report also states that plaintiff refused to remove or release
a brace on his ankle to alleviate numbness in his leg.23
A medical report prepared later the same date states that
plaintiff “was seen walking across street without apparent difficulty
[when the] inmate asked to have a medical emergency called. No medical
20
21
22
23

Doc.
Doc.
Doc.
Doc.

39, par. 60-62.
65-1, pp. 16-20.
65-1, p. 20.
65-1, pp. 16-17.

emergency was called [and the] inmate fell to his right side and would
not move.” Plaintiff then was taken by wheelchair to his cell.24
A report prepared on June 13, 2006, reflects that a second nurse
was called because plaintiff had fallen. Plaintiff then explained he
had asked for a wheelchair because of numbness in his leg.25 Defendant
interprets these reports to show that plaintiff fell twice on June
12, 2006.
Defendant Green argues that these facts do not support an Eighth
Amendment claim, pointing out that there is no evidence that Green
had notice that plaintiff would fall, nor that he interfered with or
delayed medical aid to the plaintiff.
The court concludes the record does not support liability. First,
there is no showing of exhaustion of administrative remedies. Next,
even assuming this claim to be properly exhausted, the record does
not support liability under the Eighth Amendment. First, plaintiff
had received the aides which were prescribed, though he did not receive
the regular access to a wheelchair that he desired. The condition is
not sufficiently serious to establish the objective prong under
Farmer. Finally, there is no evidence that Green acted with deliberate
indifference. Defendant Green is entitled to summary judgment on this
claim.
Claim 10.
On December 7, 2005, UTM Medill prepared two disciplinary reports
charging plaintiff with disrespect. Plaintiff acknowledged receipt
24
25

Doc. 65-1, p. 17.
Doc. 65-1, p. 19.

on the following day. On December 13, 2005, Medill withdrew the
reports.26
On April 23 or 24, 2009, plaintiff submitted a personal injury
claim.27 The Grievance/Property Claims Officer returned the form to
plaintiff on April 27, 2009, because the form was not notarized as
required by policy.28
On May 4, 2009, plaintiff had the claim form notarized, and it
was designated Property Claim ##AA0109635.29 Defendant McKune denied
the claim on May 15, 2009.30 The Secretary’s designee denied the claim
on May 27, 2009.31
On April 29, 2009, plaintiff filed two claims with the Joint
Committee for Special Claims Against the State (Committee). These
claims concerned events between March 5 and 12, 2009, and alleged
injuries, a failure to provide appropriate medical care, and a request
for handicapped facilities. The Committee assigned the claims ## 6169
and 6170. Plaintiff was given an opportunity to participate in the
hearing.32
On July 14, 2009, the Committee directed plaintiff to resubmit
the claims on revised forms and specify a monetary amount for each
claim.

26
27
28
29
30
31
32
33
34

33

The Committee also received a response from the KDOC.34 By

Doc. 65-3, pp. 68, 74-75.
Doc. 65-3, p. 64.
Doc.
Doc.
Doc.
Doc.
Doc.
Doc.
Id.,

65-3, p. 61.
65-3, p. 48.
65-3, p. 49.
65-3, p. 47.
157, Attach. 1-3.
157, Attach. 4.
Attach. 5.

a letter dated November 4, 2009, the Committed notified plaintiff that
his claim was denied without prejudice due to his failure to
participate in the hearing.35
On November 24, 2009, plaintiff wrote the Committee explaining
that his failure to participate was due to the location of the
telephone.36
Defendants McKune and Werholtz seek summary judgment on this
claim. Plaintiff presents several arguments. First, he claims he is
afraid to file grievances due to potential disciplinary reports,
citing the adverse decisions he received in grievances concerning
claims that personnel would not process his grievances. 37 He also
claims the two disciplinary reports issued in December 2005 were based
upon his filing of grievances.38
Defendants point out, however, that the disciplinary reports
filed in December 2005 were withdrawn a few days later, and that
plaintiff has not received a disciplinary report based upon any of
the claims he presents in this matter. Finally, they note that although
plaintiff has presented grievances directly to the Warden and
Secretary, he

was

not penalized for failing

to follow proper

procedures.
Plaintiff also appears to claim his attempts to file personal
injury claims were thwarted. A review of the record, however, shows
that the Committee dismissed his claims without prejudice due to his
35
36
37
38

Id.,
Id.,
Doc.
Doc.

Attach. 6.
Attach. 7.
65-3, p. 13.
39, par. 93.

failure to participate. The letter advising his of the dismissal
states that plaintiff may submit the claims again without further
evidence.39 However, there is no evidence on the record that plaintiff
filed a grievance or made any effort to resubmit the claims.
The court finds no evidence in the record to support any claim
of constitutional dimension concerning interference with plaintiff’s
use of the grievance procedure, the commencement of disciplinary
actions against plaintiff, or access to the Joint Committee for
Special Claims. Plaintiff may not rest upon vague allegations of fact,
and the record does not suggest any real effort by the plaintiff to
pursue administrative grievances. Defendants McKune and Werholtz are
granted summary judgment on this claim.
Claim 18.
Plaintiff claims that since he fell in the porter’s closet in
September 2005, he has needed medical equipment, such as a cane,
crutches, or wheelchair; that he has been denied assignment to a
housing unit with handicap-accessible showers; that he cannot perform
the duties assigned to him when he must walk or stand because of
physical disabilities; that in housing units Q-2 or Q-3 he was required
to climb a steep walkway to confer with counselors; and that in K Unit
he fell or almost fell because he was not provided a cane and crutches.
Defendants Trexler, Walker, Nance, McKune, and Werholtz seek
summary judgment on this claim.

They point out that the incidents

identified by plaintiff are not supported by specific information

39

Doc. 157, Attach. 6.

concerning when the alleged events occurred; they also contend that
many of the incidents were not the subject of any grievances filed
by plaintiff.
Claim 18 consists of allegations appearing in Doc. 39 at par.
26-39; 79-80, 143-158, 196-197, and 233.
Defendants specifically contend as follows:
(1)
(2)
(3)

(4)
(5)

the incidents set out in paragraphs 26-31 and 39
are the subject of grievances filed in 2005 and
involve the same matters as Claims 1-3.
the incidents in paragraphs 31-37 concern events
occurring in 2009. Plaintiff has failed to
exhaust grievances concerning these claims.
the incidents in paragraphs 79-80 and 196-197
occurred during plaintiff’s assignment to Q
Block, which was from June 23, 2006, to December
29, 2006; March 9, 2007, to May 8, 2007, and from
April 13, 2009. Plaintiff has not pursued
grievances concerning these claims.
the incidents in paragraphs 143-158 occurred in
2006 and are unexhausted;
the undated incident in paragraph 233 occurred
during plaintiff’s assignment to K Block; that
housing assignment was between May 8, 2007, to
June 26, 2007.

Defendants contend plaintiff has filed no grievance since
November 2005, and therefore, the claims in (2)-(5) above are
unexhausted.
The uncontroverted record supports these arguments. First,
plaintiff’s claims concerning the need for additional mobility aides
and handicap-access shower facilities appear to be identical to those
presented, and resolved against him, in Claims 1-3.
Next, there is no evidence in the record that reasonably suggests
that plaintiff made any effort to exhaust the claims arising in 2007
and thereafter. As discussed, the exhaustion requirement imposed by

42 U.S.C. § 1997e(a) is mandatory and “unexhausted claims cannot be
brought in court.” Thomas v. Parker, 609 F.3d 1114, 1117 (10th Cir.
2010)(internal quotation marks omitted).
Accordingly, having considered the record, the court finds
defendants are entitled to summary judgment on the remaining claims
presented in Claim 18 because the plaintiff failed to present them
through the administrative grievance procedure.
Lack of service on remaining defendants
Efforts to obtain service on other defendants in this matter
proved

unsuccessful.

“While

an

incarcerated

pro

se

plaintiff

proceeding in forma pauperis is entitled to rely on the U.S. Marshal
for service of the summons and complaint, … [n]either the U.S. Marshal
nor the Clerk of the Court are required to search for ‘a defendant
who ‘cannot be served … at the addresses on record with the court.’”
Barksdale v. Connaghan, 2012 WL 6770883, at *10 (D. Colo. 2012)(citing
Kiley v. Kurtz, 533 F.Supp. 465, 467 (D. Colo. 1982)).
In light of the time that has passed, the claims against the
unserved defendants will be dismissed without prejudice pursuant to
Fed.R. Civ. P. 4(m).
Motions for sanctions and other relief
Four remaining motions filed by plaintiff are pending before the
court, namely:
#150: Motion for relief and for sanctions against
defendants for retaliatory actions against plaintiff for
filing lawsuit in this matter;
#155: Motion for sanctions;

#165: Motion to clarify orders; and
#170: Motion for sanctions.
The court has examined these motions, which may be summarized
as follows:
In plaintiff’s first motion for relief and sanctions, he asserts
that defendants and some prison staff members dislike him, complain
of the costs of litigation, and try to restrict access to the prison
library. He also alleges that the defendants have encouraged other
prisoners to provoke plaintiff to excuse subsequent mistreatment of
him. He complains broadly of his living conditions and complains that
defendant McKune has failed to comply with accommodations he agreed
to supply after plaintiff filed a complaint with the United States
Department of Justice. Plaintiff alleges that prison staff has left
a posting in the dormitory in Unit Q-1, which he asserts is evidence
of their tolerance for violence against prisoners who file complaints
and pursue litigation. Finally, he asserts that in May 2012, other
prisoners entered his living area and opened an exterior window,
removing plaintiff from his assigned bunk and injuring him. Plaintiff
was taken to the clinic after this incident, where he received an
injection for pain relief, and returned to the housing area by
wheelchair.
Plaintiff’s second motion for relief and sanctions describes an
exchange in October 2012 with a staff member concerning plaintiff’s
delivery of a crumpled paper order sheet to the prison canteen. He
alleges that a loud discussion of his physical infirmities ensued,

which he characterizes as an invitation to predatory inmates and an
“overt security violation.”40
Plaintiff’s motion to clarify orders describes his disabilities
and complains generally that the court has failed to grant any relief
to accommodate his circumstances.
Plaintiff’s final motion for sanctions claims that prison
employees have incited other prisoners

by stating that he is

responsible for the diversion of funds to improving accessibility.
Prison officials may not retaliate for a prisoner’s exercise of
constitutional rights. Smith v. Maschner, 899 F.2d 940, 947 (10th Cir.
1990). A prisoner claiming retaliatory conduct “must allege specific
facts

showing

retaliation

because

of

the

exercise

of

[his]

constitutional rights.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th
Cir. 1998)(internal quotation marks and citation omitted).
Plaintiff’s

allegations

are

not

supported

by

specific

allegations of fact, nor does he show any nexus between his pursuit
of legal remedies and acts or omissions by the defendants. Finally,
plaintiff has not identified any specific instance of harm from such
events as his verbal exchange with staff in the prison canteen
concerning the crumpled order sheet he produced.
Likewise, to the extent plaintiff complains of the conditions
of his confinement, such as the open window in his cell or a failure
to adequately accommodate his physical infirmities, he does not make
a persuasive argument that these events were retaliatory or that they

40

Doc. 155, p. 2.

provide a legal basis for the imposition of sanctions in this matter.
Rather, plaintiff may pursue administrative remedies to seek relief
from conditions that he believes are unlawful.
In sum, the court finds no basis for relief and will deny these
motions.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
relief and for sanctions (Doc. 150) is denied.
IT IS FURTHER ORDERED plaintiff’s motion for sanctions (Doc. 155)
is denied.
IT IS FURTHER ORDERED defendants’ motion to dismiss or for
summary judgment (Doc. 156) is granted.
IT IS FURTHER ORDERED plaintiff’s motion to clarify orders (Doc.
165) is denied.
IT IS FURTHER ORDERED plaintiff’s motion for sanctions (Doc. 170)
is denied.
IT IS FURTHER ORDERED plaintiff’s claims against unserved
defendants are dismissed without prejudice.
Copies of this order shall be transmitted to the parties.
IT IS SO ORDERED.
DATED:

This 12th day of August, 2013, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge