Matson v. Kansas, State of et al
Filing
224
MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 182 for leave to file a second amended complaint is denied. Defendant's motion 144 for summary judgment is granted. Plaintiff's federal claims are dismissed with prejudice and pla intiff's state law claim is dismissed without prejudice. Plaintiff's motion 203 to file supplemental exhibits is granted. Plaintiff's motion 213 for in camera review is denied. Plaintiff's objections 198 & 216 to orders of the Magistrate Judge are denied. Plaintiff's request 164 for relief under Rule 56(f) is denied. By virtue of these rulings, the remaining pending motions 207 , 218 & 223 are moot. Signed by Senior District Judge Richard D. Rogers on 1/23/2014. (Mailed to pro se party Mike C. Matson by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MIKE C. MATSON,
)
)
)
)
)
)
)
)
)
_
Plaintiff,
v.
JOEL HRABE,
Defendant.
Case No. 11-3192-RDR
MEMORANDUM AND ORDER
Plaintiff is a state system inmate who has brought a pro se
civil
rights
action
illegal retaliation.
state law claim.
pursuant
to
42
U.S.C.
§
1983
alleging
Plaintiff has also alleged a supplemental
Defendant was a deputy warden at the Norton
Correctional Facility (NCF) during the relevant times in this
case.
Currently pending before the court are defendant’s motion
for summary judgment and plaintiff’s motion to file a second
amended complaint.
For various reasons, including undue delay
and futility, the court shall deny plaintiff’s motion to file a
second amended complaint.
The court shall grant defendant’s
motion for summary judgment because plaintiff cannot demonstrate
the
denial
of
a
constitutional
right
or
that
the
alleged
retaliatory acts were clearly established to be unconstitutional
at
the
time
they
were
committed.
Before
discussing
these
holdings
in
greater
detail,
the
court
shall
address
some
related pending motions.
I.
RELATED PENDING MOTIONS
Plaintiff’s
support
of
his
motion
for
response
to
leave
to
supplement
defendant’s
motion
judgment (Doc. No. 203) shall be granted.
exhibits
for
in
summary
Plaintiff’s motion
for in camera review of discovery material (Doc. No. 213) shall
be denied.
The court is not convinced that the relief requested
by plaintiff will be of material benefit to the court’s decision
upon the summary judgment motion or other issues in this case.
The court shall overrule plaintiff’s objections (Doc. No. 198)
to a Magistrate Judge’s order denying reconsideration of a prior
order deciding several motions.
The court has reviewed the
Magistrate Judge’s order and finds that it is neither clearly
erroneous nor contrary to law.
II.
CASE HISTORY
Plaintiff filed the original complaint on November 10, 2011
and filed an amended complaint on January 10, 2012.
The amended
complaint
courts
alleges
a
denial
of
access
to
the
and
retaliation against the exercise of plaintiff’s First Amendment
rights to file a grievance as an inmate in the Kansas prison
system.
A state law negligence claim is also alleged in the
amended complaint.
A motion to dismiss or for summary judgment
was filed on September 20, 2012.
2
The court issued an order
which granted in part and denied in part the motion to dismiss
or for summary judgment on January 9, 2013.
Doc. No. 53.
The
court granted judgment against plaintiff’s claim of denial of
access to the courts.
claim
to
go
The court allowed plaintiff’s retaliation
forward,
although
the
court
determined
that
plaintiff could not prove illegal retaliation solely from the
ordering of searches and property audits of plaintiff’s cell.
The court did not dismiss a claim that plaintiff was transferred
to a different cell to retaliate against the exercise of his
First Amendment rights.
Plaintiff asked the court to alter or
amend the January 9, 2013 order.
The court denied the motion to
alter or amend but permitted plaintiff to argue that defendant
engaged in a “campaign” of harassment or retaliation.
Doc. No.
65.
III.
PRO SE STANDARDS
The
court
construes
a
pro
se
plaintiff’s
“pleadings
liberally, applying a less stringent standard than is applicable
to pleadings filed by lawyers.
[The] court, however, will not
supply additional factual allegations to round out a plaintiff’s
complaint or construct a legal theory on a plaintiff’s behalf.”
Whitney
v.
New
Mexico,
113
F.3d
1170,
1997)(quotations and citations omitted).
1173-74
(10th
Cir.
“[I]f the court can
reasonably read the pleadings to state a valid claim . . ., it
should do so despite plaintiff’s failure to cite proper legal
3
authority, his confusion of various legal theories . . . or his
unfamiliarity with pleading requirements.”
F.2d 1106, 1110 (10th Cir. 1991).
Hall v. Bellmon, 935
But, it is not the “proper
function of the district court to assume the role of advocate
for the pro se litigant.”
Id.
IV. PLAINTIFF’S MOTION TO FILE A SECOND AMENDED COMPLAINT SHALL
BE DENIED.
Plaintiff filed a motion for leave to file a second amended
complaint on November 18, 2013, two years after the original
complaint was filed in this case.
The scheduling order in this
case set a deadline of October 18, 2013 for motions to amend the
pleadings.
But, in August or September 2013, plaintiff informed
defense counsel of plaintiff’s desire to extend the deadline and
plaintiff
Defense
filed
counsel
extension,
but
a
motion
expressed
asked
that
seeking
no
any
a
three-month
opposition
extension
to
be
a
extension.
one-month
limited
to
the
adverse actions or injuries alleged by plaintiff in his amended
complaint.
moot
by
the
Ultimately, the requested extension was considered
Magistrate
Judge
partial stay of discovery.
was December 6, 2013.
because
this
court
granted
a
The discovery deadline in this case
Discovery was stayed on November 6, 2013
as to all issues except those relating to qualified immunity.
All discovery as to qualified immunity was to be commenced or
served in time to be completed by December 6, 2013.
4
A.
Contents of the proposed second amended complaint and
defendant’s arguments in opposition
The
proposed
second
amended
complaint
has
five
counts.
Counts One and Two allege a “campaign” of retaliation against
plaintiff’s exercise of his First Amendment rights.
Count Three
alleges the tort of negligent infliction of emotional distress.
Count Four alleges interference with plaintiff’s access to the
court by impeding plaintiff from filing a medical malpractice
claim,
and
misconduct
Count
by
Five
alleges
intercepting,
gross
negligence
opening
and
and
willful
tampering
with
plaintiff’s outgoing legal and official mail in violation of
State of Kansas regulations and 18 U.S.C. §§ 1701 and 1702.
The
proposed
second
amended
complaint
includes
the
following allegations which are not contained in the amended
complaint:
- - that plaintiff was transferred from a single cell
in A-Unit to C-Unit which was a multi-occupancy
disciplinary and segregation unit, contrary to his
mental health restrictions, with more hostile
inmates and more restrictions;
- - that the stress of living in C-Unit aggravated
plaintiff’s GERD condition and caused acid reflux
and asthma attacks;
- - that plaintiff was harassed by other inmates in CUnit who stole from plaintiff and threatened him in
order to coerce plaintiff into purchasing items
which plaintiff was allowed to purchase but other
inmates could not;
5
- - that he had an intense light shining in his cell
in C-Unit 24-hours a day which caused him to lose
sleep;
- - that the roof leaked in C-Unit which caused an
electrical hazard;
- - that cameras were installed in the shower areas of
C-Unit and that female staff could watch plaintiff
in the shower;
- - that during cell searches conducted in C-Unit
plaintiff lost a hot pot, an alarm clock and a fan;
- - that the C-Unit cell had less living space than
the A-Unit cell and less than 25 square feet per
inmate;
- - that staff seized plaintiff’s mail and refused to
process grievances necessary as a precondition for
bringing a court action;
- - that plaintiff was forced to agree to not file
further grievances or property claims in order to
move from his cell in C-Unit to other C-Unit
housing.
Defendant opposes the motion to amend on the grounds that:
the proposed second amended complaint has been unduly delayed;
the proposed amendments raise new factual allegations which will
require
more
discovery;
the
second
amended
complaint
makes
plaintiff’s claims a moving target; and Counts Three and Five
are futile.
B.
Standards governing motions to amend
Under
FED.R.CIV.P.
15(a)(2),
“[t]he
court
should
give leave [to amend] when justice so requires.”
6
freely
“’Refusing
leave to amend is generally only justified upon a showing of
undue delay, undue prejudice to the opposing party, bad faith or
dilatory
motive,
previously
failure
allowed,
or
to
cure
futility
deficiencies
of
by
amendment.’”
amendments
Bylin
v.
Billings, 568 F.3d 1224, 1229 (10th Cir. 2009)(quoting Frank v.
U.S.
West,
Inc.,
3
F.3d
1357,
1365
(10th
Cir.
1993)).
“In
deciding whether a delay is ‘undue,’ [courts] focus primarily on
the reasons for the delay.”
Cohen v. Longshore, 621 F.3d 1311,
1313 (10th Cir. 2010)(interior citation and quotation omitted).
“[The Tenth Circuit has] held that denial of leave to amend is
appropriate when the party filing the motion has no adequate
explanation for the delay.”
Id. (interior quotation omitted).
“[C]ourts have denied leave to amend where the moving party was
aware of the facts on which the amendment was based for some
time prior to filing the motion to amend.”
Fed. Ins. Co. v.
Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987).
Denial
of leave to amend is particularly appropriate in cases in which
the cause of action was available to the plaintiff at the time
that the original complaint was filed.
Las Vegas Ice & Cold
Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir.
1990).
C.
futile.
Count Three of the proposed second amended complaint is
7
Plaintiff has not responded to defendant’s arguments that
Counts Three and Five are futile.
of
negligent
infliction
of
Count Three alleges a claim
emotional
distress.
Defendant
contends that Kansas law does not recognize such a claim unless
the emotional distress is accompanied by or results in physical
injury and that plaintiff makes no such allegation.
Defendant’s
argument is generally supported by the surveys of cases cited in
Stephenson v. Honeywell Intern., Inc., 669 F.Supp.2d 1259, 126263 (D.Kan. 2009); Tucker v. United Parcel Service, Inc., 2007 WL
2155658 *2 (D.Kan. 7/25/2007); and Schweitzer-Reschke v. Avnet,
Inc.,
874
F.Supp.
1187,
1196-97
(D.Kan.
1995).
Here,
plaintiff’s proposed second amended complaint alleges that the
stress
caused
by
his
alleged
retaliatory
cell
transfer
aggravated his GERD and led to pain and suffering from acid
reflux, asthma attacks, and irritation.
These conditions or
symptoms as described in the proposed amended complaint are not
significantly
above-cited
different
cases.
from
the
Accordingly,
symptoms
the
described
court
shall
in
the
accept
defendant’s argument that Count Three of the proposed second
amended complaint is futile as pleaded by plaintiff.
D. Count Five of the proposed second amended complaint is
not futile.
Count
wanton
Five
alleges
misconduct
by
“gross
the
negligence
defendant
8
and
willful[]
intercepting,
and
opening,
tampering, . . . and blocking . . . [p]laintiff’s outgoing legal
and official mail without just cause or excuse.”
contends
that
this
claim
should
not
be
added
to
Defendant
this
case
because plaintiff cites federal criminal statutes (18 U.S.C. §§
1701 and 1702) which do not support a civil cause of action.1
While the court agrees that plaintiff cannot support a civil
cause of action by citation to federal criminal statutes (see
Newcomb v. Ingle, 827 F.2d 675, 677 n.1 (10th Cir. 1987); Cok v.
Cosentino, 876 F.2d 1, 2 (1st Cir. 1989)), the court believes
that authority exists under 42 U.S.C. § 1983 to support a claim
for obstructing or tampering with plaintiff’s mail without just
cause or excuse, especially where (as alleged in Count Five) the
interference with mail allegedly was done to retaliate for the
exercise of First Amendment rights.
E.
Leave to file the proposed second amended complaint
shall be denied because of undue delay and because some of the
“new” allegations either are not necessary or are futile.
Defendant alleges that plaintiff has had since January 2012
to amend his complaint and that he has waited too long to do so.
Plaintiff’s
starting
and
response
focuses
proceeding
with
on
the
delays
discovery.
he
has
Plaintiff
faced
does
in
not
explain, however, why any of these delays prevented plaintiff
from obtaining the knowledge and information necessary to plead
any of the “new” allegations contained in the proposed second
1
Plaintiff also cites a state regulation, K.A.R. 44-12-601, but this would
have no effect upon defendant’s argument.
9
amended
complaint.
Nor
does
plaintiff
identify
how
the
discovery which has been completed produced “new” information
providing the basis for the “new” allegations in the proposed
second amended complaint.
Thus, plaintiff has failed to provide
an adequate explanation or justification for the items in the
proposed second amended complaint which do not stem from and are
not
related
to
the
allegations
contained
in
the
amended
complaint.
Defendant admits that many of the facts plaintiff alleges
in
the
proposed
second
amended
complaint
relate
to
and
supplement the allegations of the amended complaint, but then
argues that it is not really necessary for those allegations to
be added to the pleadings.
Plaintiff does not respond to this
argument.
Because plaintiff does not adequately explain or justify
the delay in offering the proposed second amended complaint or
show why the amended complaint is necessary as to many of the
“new” allegations, the court shall deny plaintiff’s motion to
amend in its entirety.
court
shall
ignore
the
This does not mean, however, that the
“new”
allegations
defendant’s motion for summary judgment.
when
considering
As just mentioned,
some of these allegations are related to the amended complaint
and should be considered as part of the claims made in the
amended complaint.
10
The only claims which the court believes are outside the
amended complaint are:
1) that after plaintiff was moved to C-
Unit, he had mail seized and his grievances were not processed
in order to block legal claims; 2) that he lost property during
cell searches conducted after he was transferred to C-Unit; and
3) that he was forced to agree not to file grievances and claims
in order to be permitted to move from C-3003 to a different cell
in
C-Unit.
However,
as
explained
later
in
this
order,
if
plaintiff’s § 1983 claim were amended to include these three
claims,
the
court
would
still
grant
defendant’s
motion
for
summary judgment.
V.
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHALL BE GRANTED.
A.
Summary judgment motion standards
Summary judgment is warranted if the materials on record
show 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.”
the
FED.CIV.P. 56(a).
light
most
favorable
The court views “all of the facts in
to
the
non-movant
and
reasonable
inferences from the record must be drawn in favor of the nonmoving party.”
Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir.
2007).
“Once a properly supported summary judgment motion is made,
the opposing party may not rest on the allegations contained in
the complaint, but must respond with specific facts showing the
11
existence of a genuine factual issue to be tried.... These facts
may be shown by any of the kinds of evidentiary materials listed
in
Rule
56(c),
except
the
mere
pleadings
by
themselves.”
Southway v. Central Bank of Nigeria, 149 F.Supp.2d 1268, 1273
(D.Colo.2001), aff'd, 328 F.3d 1267 (10th Cir.2003). However,
“[i]n order to survive summary judgment, the content of the
evidence that the nonmoving party points to must be admissible
.... The nonmoving party does not have to produce evidence in a
form
that
substance
would
of
be
the
admissible
evidence
at
trial,
must
be
but
the
content
admissible....
or
Hearsay
testimony that would be inadmissible at trial cannot be used to
defeat a motion for summary judgment because a third party's
description of a witness' supposed testimony is not suitable
grist
for
Guarantee
the
&
summary
Liability
judgment
Ins.
Co.,
mill.”
233
Adams
F.3d
v.
1242,
American
1246
(10th
the
court
Cir.2000)(interior citations and quotations omitted).
“Summary
judgment
is
.
.
.
appropriate
when
concludes that no reasonable juror could find for the non-moving
party
based
response.”
on
the
Southway,
evidence
149
presented
F.Supp.2d
at
in
1273.
the
motion
“The
and
operative
inquiry is whether, based on all documents submitted, reasonable
jurors could find by a preponderance of the evidence that the
plaintiff is entitled to a verdict.... Unsupported allegations
without ‘any significant probative evidence tending to support
12
the complaint’ are insufficient ... as are conclusory assertions
that
factual
disputes
quotations omitted).
exist.”
Id.
(interior
citations
and
The evidence presented must be based on
more than mere speculation, conjecture, or surmise to defeat a
motion for summary judgment.
Rice v. United States, 166 F.3d
1088, 1092 (10th Cir. 1999).
B.
Uncontroverted facts
At the relevant times in this case, plaintiff was an inmate
at
NCF.
Facility.
He
is
now
housed
at
the
Ellsworth
Correctional
NCF is a facility which incarcerates over 800 men who
are either classified as medium or minimum custody.
In
June
2011,
plaintiff
filed
a
civil
action
in
the
district court for Butler County, Kansas and needed to pay the
filing and service fees with two checks instead of one.
After
plaintiff learned of this, he requested that forms to withdraw
money, a letter and a check be returned to him.
were
returned
but
were
detained
or
misplaced,
received by plaintiff until August 22, 2011.
These items
and
were
not
On July 13, 2011,
plaintiff filed a grievance and property claim concerning the
return of the forms and envelopes based upon his belief that
defendant Hrabe purposely diverted the forms and attempted to
deny plaintiff access to court.
Plaintiff continued with his
grievance after the forms and the envelope were returned to him.
13
On September 1 and 14, 2011 property audits were conducted
in plaintiff’s cell, A-4135.
Defendant contends that the audits
were conducted because of concerns that the amount of legal
paperwork plaintiff had accumulated exceeded what was allowed
under
prison
regulation
IMPP
12-120.
Defendant
Hrabe
has
submitted an affidavit stating that this was his motivation in
approving the audits.
Plaintiff contends that the audits were
conducted to retaliate against plaintiff for filing a grievance
regarding
the
return
Plaintiff
admits
of
forms,
he
that
the
check
has
frequently
and
filed
envelope.
grievances,
property claims and Kansas Open Records requests and that it may
have
appeared
that
plaintiff
had
excess
property
at
times
because plaintiff had his paperwork laid out in his cell so he
could work.
Plaintiff also admits that according to IMPP 12-
120, “[a]t any point in time, an inmate may be required to pack
personal property in a standard transport/storage box to show
that
the
quantity
established
limit.”
limitations
on
the
of
In
property
addition,
quantity
of
possessed
it
is
property
is
within
admitted
possessed
the
that
the
exist
for
purposes of safety and security.
Plaintiff filed a grievance on September 2, 2011 concerning
the September 1, 2011 property audit.
On September 14, 2011,
plaintiff filed a claim regarding obstruction or interference
with
access
to
the
court,
alleging
14
that
defendant
Hrabe’s
actions on or about June 17, 2011 interfered with plaintiff’s
access to the courts.
This claim was filed before the September
14, 2011 property audit.
On September 15, 2011, plaintiff was transferred from cell
A-4135 to cell C-3003.
Defendant Hrabe has filed an affidavit
stating that plaintiff was transferred to a different cell in
order to redistribute unit team caseloads and not to retaliate
against
him
because
of
his
legal
claims
and
grievances.
Plaintiff has filed an affidavit stating that the transfer was
part of a campaign of retaliation, harassment and intimidation.
It is agreed that the corrections counselor assigned to
plaintiff in C-Unit was classified as a CCII.
This is a higher
classification than that held by plaintiff’s counselor in AUnit,
who
had
recently
been
promoted
to
CCI.
Plaintiff’s
incentive level did not change when he was moved and no formal
disciplinary
action
was
taken
against
plaintiff.
The
operational schedules of A-Unit and C-Unit are identical except
that the times are staggered to prevent too many inmates from
being in one area at the same time.
The unencumbered square footage per inmate in cell A-4135
is 74 square feet.
According to defendant, the unencumbered
square footage per inmate in cell C-3003 is 28 square feet.
Plaintiff
has
filed
affidavits
indicating
that
footage per inmate is less than 25 square feet.
15
the
square
There are
inmates under restrictions or segregation inmates in A-Unit and
C-Unit.
Segregation inmates in C-Unit have some access to the
day room, but not as much as non-segregation inmates.
The
court
may
include
other
factual
discussion of the summary judgment motion.
statements
in
our
These statements may
be controverted, but the court shall accept the version offered
by plaintiff.
C.
Qualified immunity standards
Qualified immunity shields government officials performing
discretionary functions from liability for damages as long as
their
conduct
does
not
violate
clearly
established
constitutional rights of which a reasonable person would have
Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir. 2007).
known.
The
privilege is an immunity from suit and when it is raised at
summary judgment, the burden shifts to the plaintiff to overcome
the asserted immunity.
Riggins v. Goodman, 572 F.3d 1101, 1107
(10th Cir. 2009).
When the defense of qualified immunity is
raised,
must
the
allegations
court
demonstrate
consider
that
whether
the
plaintiff’s
defendant
factual
violated
a
constitutional right and, secondly, whether that constitutional
right
was
violation.
D.
clearly
established
Id.
Retaliation standards
16
at
the
time
of
the
alleged
To
must
prove
a
First
establish:
Amendment
constitutionally
1)
that
protected
retaliation
plaintiff
activity;
2)
claim,
was
that
plaintiff
engaged
the
in
actions
of
defendant Hrabe caused plaintiff to suffer an injury that would
chill a person of ordinary firmness from continuing to engage in
that
activity;
and
substantially
3)
that
motivated
defendant
by
Hrabe’s
plaintiff’s
constitutionally protected conduct.
actions
were
exercise
of
Shero v. City of Grove, 510
F.3d 1196, 1203 (10th Cir. 2007).
The first element is not at issue at this stage.
The court
assumes that plaintiff was engaged in constitutionally protected
conduct when he filed grievances against defendant or others in
prison administration in July and September 2011.
To prevail on the third element, plaintiff “must prove that
‘but for’ the retaliatory motive, the incidents to which he
refers . . . would not have taken place.”
Peterson v. Shanks,
149 F.3d 1140, 1144 (10th Cir. 1998)(citing Smith v. Maschner,
899 F.2d 940, 949-50 (10th Cir. 1990)).
“[I]t is imperative that
plaintiff’s
pleading
not
allegations
of
plaintiff
be
factual
constitutional
must,
rather,
and
retaliation
allege
conclusory.
will
specific
Mere
not
suffice;
facts
showing
retaliation because of the exercise of . . . constitutional
rights.”
1990).
Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir.
Factual allegations consisting only of engagement in
17
protected
activity
connection
for
“[do]
[a]
not
establish
the
claim.
If
retaliation
requisite
it
did
causal
litigious
prisoners could claim retaliation over every perceived slight
and
resist
summary
litigiousness.”
Cir.
2010).
judgment
simply
by
pointing
to
their
Strope v. Cummings, 381 Fed.Appx. 878, 883 (10th
“Standing
alone
and
without
supporting
factual
allegations, temporary proximity between an alleged exercise of
one’s right of access to the courts and some form of jailhouse
discipline does not constitute sufficient circumstantial proof
of retaliatory motive to state a claim.”
Friedman v. Kennard,
248 Fed. Appx. 918, 922 (10th Cir. 2007); see also, Weatherall v.
Scherbarth, 2000 WL 223576 *2 (10th Cir. 2/28/2000); Wright v.
McCotter, 1999 WL 76904 *1 (10th Cir. 2/18/1999).
Plaintiff must also prove an injury which would chill a
person
of
ordinary
protected activity.
firmness
from
continuing
to
engage
in
“[A]n inmate is not inoculated from the
normal conditions of confinement experienced by convicted felons
serving
time
in
prison
protected activity.”
merely
because
he
has
engaged
Strope, 381 Fed.Appx. at 883.
in
As this
court stated in a previous order, “’prisoners are expected to
endure more than the average citizen.’”
(quoting
Siggers-El
v.
Barlow,
412
Doc. No. 53 at p. 10
F.3d
693,
701
(6th
Cir.
2005)); see also, Poole v. County of Otero, 271 F.3d 955, 961
(10th
Cir.
2001)
abrogated
on
18
other
grds,
547
U.S.
250
(2006)(“prisoners may be required to tolerate more than [other
citizens] . . . before a [retaliatory] action taken against them
is considered adverse”).
The court also remains mindful that the Tenth Circuit has
commented:
“it is not the role of the federal judiciary to
scrutinize and interfere with the daily operations of a state
prison, and our retaliation jurisprudence does not change this
role.”
Peterson, 149 F.3d at 1144.
E.
Plaintiff cannot show that the cell transfer
substantially
motivated
by
plaintiff’s
exercise
constitutionally protected conduct.
was
of
Defendant contends that the cell transfer was not motivated
by a desire to retaliate against plaintiff’s protected activity.
Defendant has filed an affidavit stating that the cell transfer
was ordered to even out the inmate caseload for unit counselors.
Plaintiff has presented no direct evidence that the cell
transfer was motivated by a retaliatory reason.
circumstantial evidence of temporal proximity.
There is the
The cell change
was executed the day after plaintiff filed his September 14,
2011 grievance.
But, plaintiff provides no other persuasive
evidence to support his claim of a retaliatory motive or to
rebut
defendant’s
evidence
of
a
non-retaliatory
motive.
Plaintiff contends that he had an Incentive Level 3 and that
inmates on Incentive Level 2 and 3 are housed in A-Unit because
they can obtain more personal property and the A-Unit cells have
19
three times more living space than the C-Unit cells.
This does
not refute, however, defendant’s sworn statement that all three
NCF units have inmates with varying incentive levels and that
plaintiff’s
incentive
transferred
from
alleged
level
A-Unit
motivation
to
was
not
to
C-Unit.
even
out
reduced
Nor
unit
does
when
counselor
was
rebut
it
he
the
caseloads.
Plaintiff asserts that he could have been placed in a different
pod in C-Unit or another floor of A-Unit.
While this may be
true,2 it does not rebut the alleged grounds for the transfer
from A-Unit to C-Unit.
Nor does the record show that the cells
in the different pods of C-Unit were substantially different.
In sum, plaintiff’s evidence that he was transferred to C3003
for
retaliatory
reasons
boils
down
to
mere
temporary
proximity which is insufficient to sustain a material fact issue
as
to
defendant’s
motivation
and
the
cause
of
plaintiff’s
transfer.
F.
Plaintiff cannot demonstrate that the cell transfer
amounts to a “chilling” injury.
Cell C-3003 has significantly less space per inmate than
cell A-4135.
It is a two-person cell while A-4135 is a single-
person cell.
It does not lock from the inside while A-4135 does
lock from the inside.
Unlike A-4135, there is a light shining
into the cell C-3003 24-hours a day which caused plaintiff some
2
Plaintiff does not establish that he has personal knowledge or some other
acceptable foundation for this conclusion.
20
sleep deprivation.
The significance of this interference is not
evident in the record, and the pictures of the cell submitted by
both
sides
do
substantial.
detailed
not
The
claim
of
indicate
roof
that
leaked
how
this
the
in
interference
C-Unit,
caused
but
injury
would
there
to
is
be
no
plaintiff.
Plaintiff states in his affidavit that he was forced to shower
in front of women and a camera which fed live footage to other
women every day.
The affidavit does not explicitly state if
plaintiff was fully exposed or for what amount of time he was
exposed or the distance from which he was observed or whether
the
observation
served
a
legitimate
purpose.3
penological
Plaintiff was a general population inmate and inmates with more
restrictions were housed in A-Unit and C-Unit.
But, plaintiff
was exposed to more harassment and threats from inmates while he
was
in
C-Unit.
These
threats
were
often
made
to
coerce
plaintiff to obtain commissary items for inmates on disciplinary
restrictions.
disorder
with
Plaintiff has been diagnosed with a personality
compulsive
and
dependent
features.
While
plaintiff was at NCF and before the events in this case, it was
3
Plaintiff’s affidavit states:
“I was forced to shower in front of women,
and a camera which fed live footage to other women every day.” Doc. No. 194,
Exhibit OO.
Another affidavit from a different inmate in C-Unit states:
“That in C-Unit Pod 3, the showers had NO privacy, whereby female staff could
observe me showering in the nude, walking by or from the control station.”
Doc. No. 194, Exhibit PP.
A third affidavit from a different inmate in CUnit states: “I was forced to shower in front of women, and a camera which
fed live footage to other women, and then I was issued a Disciplinary report
for nothing more than drying off in the shower because a female staff member
chose to watch me.” Doc. No. 194, Exhibit QQ.
21
recommended that plaintiff stay in “non-multiman housing.”
This
was not a restriction, however.
In summary, plaintiff was moved from one general population
unit to another within the same correctional facility.
His
incentive level did not change and he was not subject to a
disciplinary charge or threatened with one.
from
a
single-person
to
space
a
He was transferred
double-person
and
more
cell.
exposure
to
There
inmates
was
substantially
less
under
restriction.
These inmates were more hostile or threatening,
but no specific facts are alleged or documented to quantify the
increased danger or harassment because of the transfer from AUnit to C-Unit, or any disparity between plaintiff’s cell in CUnit and other cells in C-unit.
There was a light shining into
the cell at night which caused plaintiff some unspecified amount
of
sleep
deprivation
and,
overall,
plaintiff
suffered
some
amount of increased acid reflux and asthma attacks from the
stress of living in C-3003.
Again, no measures or specific
descriptions of sleep deprivation or health problems are in the
record.
We assume for the purposes of this order that female
officers could observe plaintiff shower when he was in C-Unit
and that this was not the case when he was in A-Unit.
The
court
finds
plaintiff
such
an
ordinary
firmness
that
injury
from
the
that
cell
it
continuing
22
transfer
would
to
did
chill
engage
a
not
cause
person
in
of
filing
grievances, claims or lawsuits.
Key to this finding is that
plaintiff was transferred from one general population unit to
another.
level.
He did not suffer discipline or a change in incentive
And
there
significantly
population
is
different
inmates
in
confinement
endured
by
differences
between
his
no
indication
from
the
C-Unit
a
that
his
treatment
or
great
conditions
the
normal
number
in
of
of
A-Unit
treatment
other
was
general
conditions
of
inmates.
The
and
are
C-Unit
acknowledged, but they are not considered to be so significant
as to be chilling.
We note that the Tenth Circuit has recognized that the
constitutionality
of
prison
guards
observing
members
of
the
opposite sex undressed or showering is dependent on the scope of
the
intrusion,
the
manner
in
which
it
is
conducted,
the
justification for initiating it and the place in which it is
conducted.
Hayes v. Marriott, 70 F.3d 1144, 1147 (10th Cir.
1995)(referring to factors taken from Bell v. Wolfish, 441 U.S.
520, 559 (1979) in a case contesting the constitutionality of a
strip search).
The Tenth Circuit has not explicitly prohibited
cross-gender observation of showering inmates in all situations.
Id.
Nor have other circuit courts.
See Oliver v. Scott, 276
F.3d 736, 744-46 (5th Cir. 2002); Johnson v. Phelan, 69 F.3d 144,
146-47 (7th Cir.); Timm v. Gunter, 917 F.2d 1093, 1099-1100, 1102
(8th Cir. 1990) cert. denied, 501 U.S. 1209 (1991); Michenfelder
23
v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988).
a
correctional
action
need
not
be
We recognize that
unconstitutional
to
be
considered chilling for the purposes of a retaliation claim.
Nevertheless,
the
absence
of
a
clear
violation
provides
the
court with some background in considering what may be considered
“normal” conditions of confinement.
We further note that verbal threats of physical harm and
taunts
are
Amendment.
not
considered
sufficient
to
violate
the
Eighth
See Walker v. Spence, 2009 WL 3074612 *9 (D.Colo.
9/18/2009)(citing several Tenth Circuit cases); Teague v. Hood,
2008 WL 2228905 *13 (D.Colo. 5/27/2008).
Although these cases
do not involve threats or harassment from inmates, they provide
some insight as to what is not considered an unusual condition
of confinement.
G. Summary judgment is warranted against any “campaign of
harassment” claim.
Plaintiff’s claim of a “campaign of harassment” asks the
court to consider the deleterious effects of all the alleged
retaliatory actions.
So, the court shall consider the cell
searches or property audits in A-Unit along with the any delays
in handling and processing plaintiff’s AWR.
The court concludes
that these matters are also part of the normal conditions of
confinement and that, together with the transfer to C-Unit, they
do not amount to a chilling injury.
24
In addition to the case
authority regarding cell searches the court cited in Doc. No. 53
at p. 11, the court would reference the following holdings:
Rueb
v.
Brown,
504
Fed.Appx.
720,
(10th
723
Cir.
12/4/2012)(tampering with mail not a chilling injury); Allen v.
Ferrel,
2013
searches
over
WL
1222127
three
*12
months
(D.Colo.
2/13/2013)(four
insufficient
to
prove
cell
illegal
harassment/retaliation); Fleming v. Clark, 2012 WL 4343836 *6
(D.Utah 9/21/2012)(search of cell, confiscation of papers and
repeatedly
being
placed
on
lockdown
not
a
chilling
injury);
Green v. Snyder, 2012 WL 3261410 *8 (D.Colo. 5/17/2012) aff’d,
525
Fed.Appx.
726,
(10th
730
Cir.
5/14/2013)(deliberate
mishandling of grievances is not a chilling injury).
In further support of this conclusion, the court refers to
Rocha v. Zavaras, 443 Fed.Appx. 316 (10th Cir. 9/26/2011) as we
have in a previous order.
In Rocha, the Tenth Circuit held that
the plaintiff failed to allege a chilling injury when he alleged
a
retaliatory
restricted
action
status
as
which
to
caused
recreation,
the
plaintiff
maintained
in
to
be
on
segregated
housing, called last to eat, restricted from certain purchases
from canteen, prohibited from communicating with other inmates,
and required to wear distinct identifying clothing.
H.
The constitutional right against retaliation
plaintiff asserts was not clearly established in 2011.
25
which
Viewing
the
record
plaintiff,
if
the
“chilling”
injuries
in
court
were
the
light
determined
sufficient
most
that
to
favorable
all
dissuade
the
a
to
alleged
person
of
ordinary firmness from engaging in constitutionally protected
activity,
the
court
would
still
sustain
defendant’s
summary
judgment motion on the grounds that the law in this matter was
not
“clearly
established”
when
the
actions
were
taken
by
defendant.
The
“right
allegedly
violated
must
be
defined
at
the
appropriate level of specificity before a court can determine if
it was clearly established.”
(1999).
context
The
of
court
the
must
case,
not
Wilson v. Layne, 526 U.S. 603, 615
inquire
as
a
“in
light
broad
of
general
Saucier v. Katz, 533 U.S. 194, 201 (2001).
the
specific
proposition.”
“[T]he right the
official is alleged to have violated must have been ‘clearly
established’ in a more particularized, and hence more relevant,
sense:
The contours of the right be sufficiently clear that a
reasonable
official
violates that right.”
would
understand
that
what
he
is
doing
Id. at 202 (interior quotations omitted).
Thus, to decide whether a right is clearly established, the
court must consider “whether it would be clear to a reasonable
officer
that
confronted.”
his
conduct
Id. at 202.
was
unlawful
in
the
situation
he
“The question is not what a lawyer
would learn or intuit from researching case law, but what a
26
reasonable person in a defendant’s position should know about
the
constitutionality
of
the
conduct.”
Young
Fulton, 160 F.3d 899, 903 (2nd Cir. 1998).
v.
County
of
“The concern of the
immunity inquiry is to acknowledge that reasonable mistakes can
be
made
conduct.
as
to
the
legal
constraints
on
particular
police
It is sometimes difficult for an officer to determine
how the relevant legal doctrine . . . will apply to a factual
situation the officer confronts . . . If the officer’s mistake
as to what the law requires is reasonable . . ., the officer is
entitled to the immunity defense.”
Saucier, 533 U.S. at 205.
So, “[i]f the law did not put the officer on notice that his
conduct would be clearly unlawful, summary judgment based on
qualified immunity is appropriate.”
Id. at 202.
The court is unaware of controlling legal authority in 2011
which holds that a transfer from one general population unit to
another
in
the
same
facility
without
disciplinary
sanctions
would be considered a chilling injury, even when the inmate is
transferred from a single-person cell to a two-person cell with
less space per inmate and more contact with hostile inmates and
the other negative consequences described earlier.
Therefore,
the court finds that summary judgment is warranted because the
right
allegedly
violated
by
defendant
was
established during the relevant period in this case.
27
not
clearly
I. Claims outside the amended complaint would be futile if
included among plaintiff’s other claims.
Previously in this order the court held that the following
claims
made
in
plaintiff’s
proposed
second
amended
complaint
were beyond the scope of the claims in the amended complaint:
1) that after plaintiff was moved to C-Unit, he had mail seized
and his grievances were not processed in order to block legal
claims; 2) that he lost property during cell searches conducted
after he was transferred to C-Unit; and 3) that he was forced to
agree not to file grievances and claims in order to be permitted
to move from C-3003 to a different cell in C-Unit.
Even
if
the
court
considered
these
claims
as
part
of
plaintiff’s complaint, summary judgment would still be warranted
for two reasons.
to
chill
a
First, the allegations are not so serious as
person
of
ordinary
firmness
constitutionally protected activity.
from
engaging
in
Second, the record does
not support a finding that the law was clearly established that
these alleged negative actions would be considered “chilling.”
VI. PLAINTIFF HAS NOT DEMONSTRATED THAT THE COURT SHOULD DEFER
DECIDING THE SUMMARY JUDGMENT MOTION SO THAT PLAINTIFF MAY
CONDUCT ADDITIONAL DISCOVERY.
Pursuant to FED.R.CIV.P. 56(d), plaintiff filed a motion to
stay
time
summary
to
file
judgment
discovery.
so
his
opposition
that
Doc. No. 164.
plaintiff
to
defendant’s
could
conduct
motion
for
additional
He also filed an affidavit in support
28
of this request.
would
consider
Doc. No. 164-1.
this
judgment motion.
request
in
The court has held that we
the
context
of
the
summary
Doc. No. 169.
Rule 56(d) provides:
If a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts
essential to justify its opposition [to a summary
judgment
motion],
the
court
may:
(1)
defer
considering the motion or deny it; (2) allow time to
obtain
affidavits
or
declarations
or
to
take
discovery; or (3) issue any other appropriate order.
The
Tenth
Circuit
has
Rule
56(d)
considering
recited
the
following
requests:
“The
standards
party
for
requesting
additional discovery must present an affidavit that identifies
the probable facts not available and what steps have been taken
to obtain these facts.
additional
time
allegations
of
The nonmovant must also explain how
will
no
enable
genuine
him
issue
to
of
rebut
the
material
fact.
Speculation cannot support a Rule 56(d) motion.”
Arciero,
___
F.3d
12/20/1013)(interior
____,
2013
quotation
WL
and
6698127
*3
citation
movant’s
.
.
.
F.D.I.C. v.
(10th
Cir.
omitted).
Conclusory declarations will be considered inadequate to justify
relief under Rule 56(d).
Abdulhaseeb v. Calbone, 600 F.3d 1301,
1310 (10th Cir. 2010).
Plaintiff’s affidavit describes the issues for which he has
proposed discovery. It also states that plaintiff is seeking
information regarding:
cell size; night-light candle power; the
29
leaking
roof
in
C-Unit;
observe
him
shower
the
and
use
the
of
surveillance
transmission
of
cameras
to
video
to
the
observation posts with female staff; the sharing of day room
time with more dangerous and hostile inmates on disciplinary
restriction;
inmates
in
the
presence
C-Unit;
and
mental health issues.
seeks:
of
high-medium
defendant’s
and
maximum
knowledge
of
custody
plaintiff’s
The affidavit also states that plaintiff
discovery that defendant knew of his constitutionally
protected activity; documents associated with his cell transfer;
documents associated with acts of retaliation separate from the
transfer, but as part of the campaign of harassment; identities
of participants in the retaliatory campaign; evidence regarding
the manner in which his cells and rooms were searched and by
whom
and
for
what
purpose;
and
evidence
that
A-Unit
relief
under
had
counselors who were CCII.
Plaintiff’s
motion
and
affidavit
for
Rule
56(d) are insufficient to justify delaying the court’s decision
upon
the
summary
judgment
motion
for
the
following
reasons.
First, plaintiff fails to identify “probable facts” available to
him through additional discovery which will demonstrate that the
differences between his confinement in the A-Unit cell and C3003 are so substantial that it would chill an ordinary inmate
from filing grievances and that the differences are such that
the
constitutional
injury
was
30
clearly
established
in
2011.
Second, the discovery deadline has passed, though plaintiff has
continued to raise objections as to limitations placed upon his
discovery efforts and some discovery disputes remain pending.
Upon review of the case as it currently stands, plaintiff has
not persuaded the court that the issues raised in the summary
judgment motion would be affected by any remaining discovery
conducted under the confines of the rules and decisions adopted
to control discovery in this case.
court
shall
Judge’s
reject
denial
of
plaintiff’s
his
motion
Related to this finding, the
objections
to
to
the
Magistrate
reconsider
the
Magistrate
Judge’s denial of plaintiff’s motion to modify the scheduling
order.
Doc. No. 216.
The reasoning of the Magistrate Judge is
neither clearly erroneous nor contrary to law.
VII.
PLAINTIFF’S SUPPLEMENTAL
DISMISSED WITHOUT PREJUDICE.
STATE
LAW
CLAIM
SHALL
BE
The preceding analysis provides the basis for dismissing
plaintiff’s federal law claims.
Under these circumstances, the
court shall decline to exercise supplemental jurisdiction over
plaintiff’s state claim.
Lancaster v. Indep. Sch. Dist. No. 5,
149 F.3d 1228, 1236 (10th Cir. 1998).
VIII.
CONCLUSION
In
second
conclusion,
amended
plaintiff’s
complaint
(Doc.
motion
No.
for
182)
leave
shall
to
file
a
be
denied.
Defendant’s motion for summary judgment (Doc. No. 144) shall be
31
granted;
plaintiff’s
federal
claims
shall
be
dismissed
with
prejudice and plaintiff’s state law claim shall be dismissed
without
prejudice.
Plaintiff’s
motion
to
file
supplemental
exhibits (Doc. No. 203) shall be granted.
Plaintiff’s motion
for
shall
in
camera
review
(Doc.
No.
213)
be
denied.
Plaintiff’s objections to orders of the Magistrate Judge (Doc.
Nos. 198 and 216) shall be denied.
Finally, plaintiff’s request
for relief under Rule 56(f) (Doc. No. 164) shall be denied. By
virtue of these rulings, the remaining pending motions are moot
(223, 218, 207)
IT IS SO ORDERED.
Dated this 23rd day of January, 2014, at Topeka, Kansas.
s/Richard D. Rogers
Richard D. Rogers
United States District Judge
32
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