Francis v. Roberts et al
Filing
62
MEMORANDUM AND ORDER granting in part and denying in part 43 Motion for Summary Judgment; finding as moot 55 MOTION for Restraining Order and/or MOTION for Preliminary Injunction. Signed by District Judge Monti L. Belot on 1/20/2012. (alm) Modified on 1/20/2012 to add text regarding additional ruling (alm).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN F. FRANCIS,
Plaintiff,
v.
RAY ROBERTS, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
CIVIL ACTION
No.
10-3052
MEMORANDUM AND ORDER
This case comes before the court on defendants’ motion for
summary judgment.
(Doc. 43).
is ripe for decision.
The matter has been fully briefed and
(Docs. 44, 59, 60).
Plaintiff filed this pro
se 42 U.S.C. § 1983 action against defendants in their individual and
official capacities and alleges that defendants violated his Eighth
Amendment right.
For the reasons stated herein, defendants’ motion
is granted in part and denied in part.
I.
FACTS
The following summary of facts is viewed in the light most
favorable to plaintiff.
On January 20, 2009, plaintiff was placed in an observation cell
in B cellhouse, a segregation cellhouse, at El Dorado Correctional
Facility.
The cell did not have electrical outlets, a desk, stool,
or telephone and plaintiff did not receive all of his property because
it was an observation cell. Plaintiff claims that the cell was filthy
and that there was feces smeared on the floor and walls.
On January 21, plaintiff submitted a Form 9 to the Unit Team1
alleging that “he had been deprived of cell cleaning, shower and phone
privileges, his fan and his television and that there were feces on
the floor.”
(Doc. 44 at 3).
another cell.
Plaintiff also requested to be moved to
Someone responded that plaintiff would be moved to
another cell once one became available, but the record does not
identify that individual.
Plaintiff was given highly diluted glass
cleaner, disinfectant, and a handful of paper towels.2
Plaintiff
requested additional cleaning supplies such as bleach and rubber
gloves, but these items were not permitted in the observation cell.
On January 23, plaintiff submitted grievance No. 00016209 to the
Unit Team stating that there was apparent feces on the floor.
Plaintiff further stated that with the exception of being allowed some
of his property, he was being treated like a suicidal inmate.
On January 26, the Unit Team conducted plaintiff’s initial and
weekly segregation review.
The Team noted that plaintiff was unhappy
with his cell.
On January 27, plaintiff was moved to another segregation cell.
On
February
10,
defendant
Maureen
Malott
responded
to
plaintiff’s grievance and stated “[t]he conditions as you describe
them are intolerable and I will look into that.
You were moved from
the cell you objected to being housed in to B1 236.
is no further action to be taken at this time.”
Therefore there
(Doc. 34-4 at 6).
1
The record does not reflect the identity of the Unit Team
members.
2
It is unclear which defendant provided plaintiff with the
cleaning supplies and when.
-2-
On
February
18,
Warden
Ray
Roberts
upheld
the
Unit
Team
managers’ response.
On February 28, plaintiff appealed grievance No. CA00016209 to
the Secretary of Corrections.
On March 20, Secretary of Corrections
Designee Elizabeth Rice responded to plaintiff’s grievance and found
that plaintiff “offer[ed] no evidence or argument that suggests that
the response rendered by the staff at the facility is wrong.”
(Doc.
44 at 4).
Plaintiff filed his complaint on March 15, 2010, and the
Martinez report was filed on July 16, 2011.
II.
SUMMARY JUDGMENT STANDARDS
Before analyzing defendants’ motion for summary judgment, the
court notes that plaintiff is not represented by counsel. It has long
been
the
pleadings
construed.
rule
that
connected
pro
with
se
pleadings,
summary
including
judgment,
must
complaints
be
and
liberally
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). This rule requires the court to look beyond a failure
to cite proper legal authority, confusion of legal theories, and poor
syntax or sentence construction. See Hall, 935 F.2d at 1110. Liberal
construction does not, however, require this court to assume the role
of advocate for the pro se litigant.
See id.
Plaintiff is expected
to construct her own arguments or theories and adhere to the same
rules of procedure that govern any other litigant in this district.
See id.; Hill, 14 F. Supp.2d at 1237.
Additionally, the court need
not accept as true plaintiff’s conclusory allegations because no
special legal training is required to recount the facts surrounding
-3-
alleged injuries.
See Hill, 14 F. Supp.2d at 1237.
Thus, the court
is required to accept as true only plaintiff’s well-pleaded and
supported factual contentions.
See id.
In the end, plaintiff’s pro
se status, in and of itself, does not prevent this court from granting
summary judgment.
See Northington v. Jackson, 973 F.2d 1518, 1521
(10th Cir. 1992).
The usual and primary purpose of the summary judgment rule is
to isolate and dispose of factually unsupported claims or defenses.
See
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Federal
Rule of Civil Procedure 56(c) directs the entry of summary judgment
in favor of a party who "show[s] that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment
as a matter of law."
An issue is “genuine” if sufficient evidence
exists on each side “so that a rational trier of fact could resolve
the issue either way” and “[a]n issue is ‘material’ if under the
substantive law it is essential to the proper disposition of the
claim.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998) (citations omitted); see also Adams v. American Guarantee &
Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing
Adler).
The mere existence of some factual dispute will not defeat
an otherwise properly supported motion for summary judgment because
the factual dispute must be material.
See Renfro v. City of Emporia,
948 F.2d 1529, 1533 (10th Cir. 1991).
Defendants initially must show both an absence of a genuine
issue of material fact and entitlement to judgment as a matter of law.
See Adler, 144 F.3d at 670.
proof
at
trial,
defendant
Because plaintiff bears the burden of
need
not
-4-
"support
[its]
motion
with
affidavits or other similar materials negating [plaintiff’s]” claims
or defenses.
Celotex, 477 U.S. at 323 (emphasis in original).
Rather, defendant can satisfy its obligation simply by pointing out
the absence of evidence on an essential element of plaintiff’s claim.
See Adler, 144 F.3d at 671 (citing Celotex, 477 U.S. at 325).
If defendants properly supports their motion, the burden then
shifts to plaintiff, who may not rest upon the mere allegation or
denials of her pleading, but must set forth specific facts showing
that there is a genuine issue for trial.
See Mitchell v. City of
Moore, 218 F.3d 1190, 1197-98 (10th Cir. 2000).
In setting forward
these specific facts, plaintiff must identify the facts “by reference
to
affidavits,
deposition
incorporated therein.”
transcripts,
or
specific
Adler, 144 F.3d at 671.
exhibits
If the evidence
offered in opposition to summary judgment is merely colorable or is
not significantly probative, summary judgment may be granted.
See
Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 533 (10th Cir.
1994).
Plaintiff “cannot rely on ignorance of facts, on speculation,
or on suspicion, and may not escape summary judgment in the mere hope
that something will turn up at trial.”
789, 793 (10th Cir. 1988).
Conaway v. Smith, 853 F.2d
Put simply, plaintiff must “do more than
simply show there is some metaphysical doubt as to the material
facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986).
Certain local rules further govern the presentation of facts and
evidence.
Local Rule 56.1 requires the movant to set forth a concise
statement of material facts.
D. Kan. Rule 56.1.
Each fact must
appear in a separately numbered paragraph and each paragraph must
-5-
refer with particularity to the portion of the record upon which the
defendant relies.
See id.
The opposing memorandum must contain a
similar statement of facts.
Plaintiff must number each fact in
dispute, refer with particularity to those portions of the record upon
which
he
relies
and,
if
applicable,
defendants’ fact that he disputes.
state
the
number
of
the
The court may, but is not
obligated to, search for and consider evidence in the record that
would rebut the defendants’ evidence, but that plaintiff has failed
to cite.
See Mitchell, 218 F.3d at 1199; Adler, 144 F.3d at 672.
All
material facts set forth in the statement of defendants shall be
deemed
admitted
for
the
purpose
of
summary
judgment
specifically controverted by the statement of plaintiff.
unless
See id.;
Gullickson v. Southwest Airlines Pilots’ Ass’n, 87 F.3d 1176, 1183
(10th Cir. 1996) (applying local rules of District of Utah).
A
standing order of this court also precludes drawing inferences or
making arguments within the statement of facts.
The parties need not present evidence in a form that would be
admissible at trial, but the content or substance of the evidence must
be admissible.
See Thomas v. Int’l Bus. Machs., 48 F.3d 478, 485
(10th Cir. 1995) (internal quotations and citations omitted).
For
example, hearsay testimony that would be inadmissible at trial may not
be included.
See Adams, 233 F.3d at 1246.
Similarly, the court will
disregard conclusory statements and statements not based on personal
knowledge. See Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1382 (10th
Cir. 1994) (regarding conclusory statements); Gross v. Burggraf
Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995) (requiring personal
knowledge).
Finally, the court may disregard facts supported only by
-6-
references to documents unless the parties have stipulated to the
admissibility
of
the
documents
or
the
documents
have
been
authenticated by and attached to an affidavit meeting the requirements
of Rule 56(e).
See Fed. R. Civ. P. 56(e); D. Kan. Rule 56.1; 10A
Charles Alan Wright, et al., Federal Practice and Procedure § 2722 (2d
ed. 1983) (footnotes omitted).
In the end, when confronted with a fully briefed motion for
summary judgment, the court must determine "whether there is the need
for a trial--whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either party."
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
Anderson
If sufficient
evidence exists on which a trier of fact could reasonably find for the
plaintiff, summary judgment is inappropriate. See Prenalta Corp. v.
Colo. Interstate Gas Co., 944 F.2d 677, 684 (10th Cir. 1991).
III.
ANALYSIS
1983 Claims
When law enforcement officers abuse their power, suits against
them allow those wronged an effective method of redress. See Anderson
v. Creighton, 483 U.S. 635, 638 (1987) (citing Harlowe v. Fitzgerald,
457 U.S. 800, 814 (1982)).
Pursuant to 42 U.S.C. section 1983, any
person who “under color of . . . [law] . . . subjects, or causes to
be subjected, . . . any [person] . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.” Section 1983 was enacted
to provide protections to those persons wronged by the misuse of
power.
While the statute itself creates no substantive civil rights,
-7-
it does provide an avenue through which civil rights can be redeemed.
See Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995).
To state
a claim for relief in a section 1983 action, plaintiff must establish
that he was (1) deprived of a right secured by the Constitution or
laws of the United States and (2) that the alleged deprivation was
committed under color of state law.
See Am. Mfr’s. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-50 (1999). It is undisputed that defendants
were acting under color of state law at all times relevant to
plaintiff’s complaint.
Eleventh Amendment Immunity
“The Eleventh Amendment provides: ‘The Judicial power of the
United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign
State.’” U.S. Const. Amend. XI; Meade v. Grubbs, 841 F.2d 1512, 1524
-25 (10th Cir. 1988).
The Eleventh Amendment also bars suits against
the state, its agencies, and officers acting in their official
capacities from the state’s own citizens.
Meade, 841 F.2d at 1525.
In his complaint, plaintiff names defendants in their official
and “personal” capacities. To the extent that plaintiff is seeking
monetary damages against defendants in their official capacities,
summary judgment is granted in favor of defendants on plaintiff’s
official capacity claims.
Eighth Amendment
Plaintiff claims that defendants subjected him to cruel and
unusual punishment when they confined him to an observation cell for
one week that was allegedly unsanitary.
-8-
To prevail on a “conditions of confinement” claim under the
Eighth Amendment, an inmate must establish that (1) the
condition complained of is “ ‘sufficiently serious' ” to
implicate constitutional protection, and (2) prison
officials acted with “ ‘deliberate indifference’ to inmate
health or safety.” Farmer v. Brennan, 511 U.S. 825, 834,
114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (quoting Wilson
v. Seiter, 501 U.S. 294, 298 , 302-03, 111 S. Ct. 2321, 115
L. Ed. 2d 271 (1991)). In order to satisfy the first
requirement, “the inmate must show that he is incarcerated
under conditions posing a substantial risk of serious
harm.” Id. With regard to the second requirement, the
Supreme Court has explained that “deliberate indifference
entails something more than mere negligence ... [but]
something less than acts or omissions for the very purpose
of causing harm or with the knowledge that harm will
result.” Id. at 835, 114 S. Ct. 1970. The Court defined
this “deliberate indifference” standard as equal to
“recklessness,” in which “a person disregards a risk of
harm of which he is aware.” Id. at 836-37, 114 S. Ct. 1970.
DeSpain v. Uphoff, 264 F.3d 965, 971-72 (10th Cir. 2001).
1.
Objective Factor
Although not addressed by defendants3, the Tenth Circuit has held
that some incidents of exposure to human waste are sufficiently
serious to satisfy the objective component of an Eighth Amendment
violation. Barnes v. Wiley, No. 06-1307, 2006 WL 3190274, *2 (10th
Cir. Nov. 6, 2006) (citing DeSpain, 264 F.3d at 974-75; Shannon v.
Graves, 257 F.3d 1164, 1168 (10th Cir. 2001); McBride v. Deer, 240
F.3d 1287, 1292 (10th Cir. 2001)). “Exposure to human waste, like few
other conditions of confinement, evokes both the health concerns
emphasized in Farmer and the more general standards of dignity
embodied in the Eighth Amendment.” DeSpain, 264 F.3d at 974.
3
The
Defendants cite White v. Nix, 7 F.3d 120 (8th Cir. 1993) for
the proposition that an eleven-day stay in an unsanitary cell did not
violate the inmate’s Eighth Amendment because of the brevity of the
stay and the availability of cleaning supplies. However, in White,
the magistrate judge concluded that the cell was not covered with a
mixture of dried human fecal matter and food as the inmate contended.
Id. at 121.
-9-
court must consider the “the frequency and duration of the condition,
as well as the measures employed to alleviate the condition[.]”
Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001).
Plaintiff alleges in his complaint that he was exposed to another
inmate’s human waste smeared on the floors and walls of plaintiff’s
cell for one week. The Tenth Circuit held in DeSpain and McBride that
exposure to another inmate’s fecal matter for thirty-six hours and
three days, respectively, satisfied the first prong in the Farmer
test.
DeSpain, 264 F.3d at 974-75; McBride, 240 F.3d at 1292.
Thus,
the court finds that plaintiff has satisfied the objective element of
the analysis.4
2.
Subjective Factor
The second factor the court must consider is whether defendants
knew of the unsanitary conditions, i.e. feces in plaintiff’s cell and
disregarded the excessive risk to plaintiff’s health.
The test requires both knowledge and disregard of possible
risks, a mens rea on a par with criminal recklessness. If
an official is aware of the potential for harm but takes
reasonable efforts to avoid or alleviate that harm, he
bears no liability under this standard.
DeSpain,
264
F.3d
at
975
(internal
citations
omitted).
Whether
defendants knew of the substantial risk and ignored that risk is a
factual question.
Id.
In his complaint, plaintiff alleges that he asked the following
defendants for help in cleaning his cell and that each refused:
McWithey, Cannon, Jehner, Lee and Acresti.
4
He further alleges that
To the extent that plaintiff alleges that he was denied a fan,
phone and TV, such a denial would not amount to an Eighth Amendment
violation.
-10-
defendant Austin was “made aware” of the condition of his cell “orally
and by inmate communication form.” He makes a similar allegation with
respect to defendant Malott.
There is no allegation that Warden
Roberts was aware of plaintiff’s complaints during the relevant
period, January 20-27, 2009.
Plaintiff filed a written grievance on
January 21 but the record is silent with respect to which of the
defendants (other than Warden Roberts) was aware of the grievance
during the relevant period.
Defendants collectively claim that plaintiff has presented no
evidence that his cell was not power washed and cleaned in accordance
with the prison’s internal Sanitation Responsibility Handbook.
is true.
This
However, the Martinez report indicated that “despite
frequent cleaning, it is possible that residue would remain.”
(Doc.
34 at 4). Furthermore, defendants have presented no evidence that any
one of them actually looked inside plaintiff’s cell and saw no human
waste.
This absence was noted in the Martinez report.
(Doc. 34 at
4).
The Martinez report notes that plaintiff claimed he could not get
the hardened feces off the floor and around the toilet area. However,
plaintiff did not claim that the feces was “fresh.”
(Doc. 34 at 4).
The Tenth Circuit cases addressing issues dealing with human waste do
not distinguish between “fresh” and/or “hardened” human waste, but
instead look to whether human waste was present and the duration the
inmate was subjected to it.
Defendants also collectively claim that plaintiff was provided
with cleaning supplies within a reasonable time.
However, the record
does not state what day plaintiff was given the cleaning supplies and
-11-
who provided them.
Was it a few hours after his Form 9 was filed on
the January 21 or a few days later?
Plaintiff claims that he was
given the initial cleaning supplies only after repeated requests made
after a number of days.
(Doc. 59 at 2).
Defendants do not dispute
this statement of fact.
Unlike the facts in Galloway v. Whetsel, No. 03-6239, 2005 WL
459598, *2 (10th Cir. Feb. 28, 2005), plaintiff did file a grievance.
Moreover, the Martinez report supports plaintiff’s claim that the
cleaning supplies provided to him were insufficient to remove the
hardened fecal matter.
As noted supra, despite frequent cleaning,
which included power washing, it is possible that residue would remain
in the observation cell.
The court finds that plaintiff has presented sufficient evidence
such that the court5 could find that one or more of the defendants
(except Warden Roberts) was aware of the fecal matter in plaintiff’s
cell during the relevant time period. Whether the condition presented
a risk to plaintiff’s health and whether any of the defendants
disregarded that risk are issues of fact which cannot be resolved
based on the present submissions.
IV. CONCLUSION
Defendants’ motion for summary judgment (Doc. 43) is granted as
to plaintiff’s § 1983 claims against all defendants in their official
capacities, but denied as to plaintiff’s § 1983 claims against all
defendants in their individual capacities except Warden Roberts, whose
motion is granted.
The case will be pretried before the undersigned
5
Plaintiff has not demanded a jury trial and the time has
expired. Fed. R. Civ. P. 38.
-12-
judge on February 13, 2012 at 2:00 p.m.
Proposed pretrial orders
shall be submitted no later than February 6, 2012.
State authorities
will be responsible for plaintiff’s transportation to and from the
courthouse.
The issues to be pretried pertain to the condition of
plaintiff’s
cell,
specifically
the
alleged
fecal
matter,
each
defendant’s knowledge, if any, of plaintiff’s complaint about the
fecal condition and their response, if any.
plaintiff’s damages.
The other issue will be
The court has considered plaintiff’s Motion for
Restraining Order and defendants’ response (Docs. 55 and 56) and finds
the claims therein to be moot because the prison employee who
allegedly threatened plaintiff has been discharged and further because
the supposed retaliation of the unidentified “cronies” relates to
plaintiff’s ability to prosecute this case which, obviously, has not
been interfered with.
A motion for reconsideration of this order pursuant to this
court's Rule 7.3 is not encouraged.
Defendants may not move for
reconsideration on the basis of evidence and arguments which could
have been included in their original motion.
Any such motion shall
not exceed three pages and shall strictly comply with the standards
enunciated by this court in Comeau v. Rupp.
The response to any
motion for reconsideration shall not exceed three pages.
No reply
shall be filed.
IT IS SO ORDERED.
Dated this 20th day of January 2012, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE
-13-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?