Lynn v. Maddox et al

Filing 218

MEMORANDUM AND ORDER granting 162 Motion for Summary Judgment. Signed by District Judge Monti L. Belot on 2/27/2015.Mailed to pro se party Patrick C. Lynn by regular mail. (smg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

PATRICK C. LYNN,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
LEONARD MADDOX,
Defendant.

CIVIL ACTION
No.

12-3104-MLB

MEMORANDUM AND ORDER
This case comes before the court on defendant’s motion for
summary judgment.

(Doc. 162).

is ripe for decision.
I.

The motion has been fully briefed and

(Docs. 1171, 163, 185, 186, 194, 212, 213).

Procedural History
Plaintiff, a prisoner, contends that defendant Maddox, a guard,

violated his Eighth Amendment right to be free from excessive force.
On May 1, 2013, the court denied defendant’s motion to dismiss.

The

parties proceeded to discovery and the dispositive motion deadline was
set for March 7, 2014.

Prior to the deadline, plaintiff filed a

“Response and Supporting Arguments that Defendant is Absolutely Not
Entitled to Qualified Immunity.”

(Doc. 160).

Two days later,

defendant submitted his motion for summary judgment.

(Doc. 162).

On March 13, 2014, plaintiff sought additional time to file a
response to defendant’s motion.

The court granted the request and

ordered plaintiff to comply with Rule 56.

The court notified

plaintiff that failure to comply may result in sanctions and/or
1

This document was filed conventionally with the clerk’s office
and contains a video of the use of force incident.

dismissal.

(Doc. 167).

ultimately

filed

a

Plaintiff sought additional extensions and

response

and

memorandum

(Docs.

185,

Plaintiff’s response, however, does not comply with Rule 56.

186).
In his

response, plaintiff fails to respond to defendant’s statement of
facts.
On December 3, 2014, the court ordered plaintiff to file a
supplemental response to defendant’s motion for summary judgment in
which he was to respond to defendant’s statement of facts and, if
necessary, set forth his statement of facts.
supplemental response on December 30, 2014.

Plaintiff filed his
(Doc. 212).

In his

response, plaintiff set forth his response to defendant’s statement
of facts.

Plaintiff’s response also contained a four-page statement

of facts; however, plaintiff failed to number the paragraphs as
required by D. Kan. Rule 56.1.

Plaintiff’s statement of facts is

simply a stream of consciousness with no citations to the record to
support his facts.

Out of an abundance of caution, the court will

consider plaintiff’s statement of facts as long as the facts contained
therein are supported by competent evidence.
On January 13, 2015, defendant submitted a supplemental reply.
(Doc. 213).

Plaintiff moves to strike the reply as improper and

asserts that defendant did not have permission to file the reply.
Defendant’s supplemental reply is permitted under the rules.
R. 56.1. Plaintiff’s motion to strike is therefore denied.
214).

D. Kan.
(Doc.

In addition to filing a motion to strike, plaintiff submitted

a surreply without seeking leave of court.
not consider plaintiff’s surreply.

-2-

Therefore, the court will

(Doc. 215).

II.

Facts2
Plaintiff is currently confined in Lansing Correction Facility

(LCF).

In 2011, plaintiff was confined in El Dorado Correctional

Facility (EDCF).

At that time, defendant was employed at EDCF as a

Corrections Officer on the Special Security Team (SST).

In early

February 2011, plaintiff was assigned to a segregation cell in the
EDCF infirmary due to frequent complaints of chest pains.

Plaintiff,

however, refused to be examined by medical staff and made repeated
threats, i.e., “I’m going to rape that bitch,” “I want to break her
neck,” and threatened to throw feces on staff.

(Doc. 163, exh. 2).

On February 13, plaintiff again complained of chest pain but
refused

to

be

restrained

and

examined,

and

instead

continued

threatening staff. As a result, EDCF Major Dragoo and Deputy Wardens
Snyder

and

Gabriel

made

the

decision

to

move

plaintiff

to

an

observation cell so that he could be monitored by medical staff. EDCF
staff formed a use of force team to perform the forced cell extraction
due to plaintiff’s refusal to cooperate.
Defendant and the use of force team approached plaintiff’s cell
door and informed plaintiff that if he failed to come to the door and
be restrained they would use force.

Plaintiff refused to come to the

door and continued to threaten staff.

Defendant and the team entered

the cell and restrained plaintiff by first using an electric shield
2

All facts set forth are either uncontroverted, or, if
controverted, taken in the light most favorable, along with all
favorable inferences, to plaintiff. See Hall v. United Parcel Serv.,
No. Civ. A. 992467-CM, 2000 WL 1114841, at *5 (D. Kan. July 31, 2000)
(citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998)); see also United Missouri Bank of Kansas City v. Gagel, 815 F.
Supp. 387, 391 (D. Kan. 1993). To the extent relevant, the factual
disagreements between the parties will be noted.
-3-

which was applied to plaintiff for approximately seventeen seconds.
The team then placed plaintiff in handcuffs and leg irons.

The team

lifted plaintiff in a standing position and plaintiff refused to walk,
telling the team that he would need to be carried.
carried

plaintiff

to

the

observation

cell.

The team then

Once

inside

the

observation cell, the team removed plaintiff’s clothing so that the
nurse could examine plaintiff.

During the move and inside the

observation cell, plaintiff continued to make multiple threats to
staff.

See Doc. 163 ¶ 18.

The team removed plaintiff’s restraints while plaintiff was lying
face down on the floor of the cell.

Defendant instructed plaintiff

to remain on the floor until the door was secured.3

Prior to the door

being secure, plaintiff rolled onto his side and pushed up off of the
floor using his hands.

Defendant and the team immediately reentered

the cell and secured plaintiff. Defendant feared that plaintiff would
attempt to batter medical or corrections staff.

After plaintiff was

again secured by the team, plaintiff yelled that his teeth were broken
due to someone hitting him in the mouth with a knee.
continued to complain about his teeth.

Plaintiff

Plaintiff is then examined by

the nurse who did not see any physical injuries.

The team then

released plaintiff and exited the cell without any issues.
On February 14, plaintiff complained of dental pain and was given
ibuprofen. Plaintiff continued to complain of dental pain but refused
treatment.

3

Plaintiff disputes this fact and cites to the video.
Defendant does instruct plaintiff in the video to remain on the ground
until the door is secure. (Doc. 117 at 9:07 to 9:20).
-4-

On February 16, plaintiff filed a grievance concerning the use
of force used during the cell move on February 13.

On February 28,

the Unit Team Manager responded to the grievance and stated that the
use of force was appropriate based on plaintiff’s actions in failing
to follow defendant’s directions. (Doc. 163, exh. 7).

Plaintiff

timely appealed the grievance to the Warden of EDCF on March 1.
Warden concurred with the Unit Team Manager.
appeal

the

Warden’s

response

to

the

The

Plaintiff did not

Secretary

of

Corrections.

Plaintiff did not submit a personal injury claim to EDCF staff after
the incident.
Defendant moves for summary judgment on the basis that plaintiff
failed to exhaust his administrative remedies and that defendant is
entitled to qualified immunity.
III. Summary Judgment Standards
The rules applicable to the resolution of this case, now at the
summary judgment stage, are well-known and are only briefly outlined
here.

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."

Fed. R. Civ. P. 56(c).

An issue is “genuine” if sufficient evidence exists so that a rational
trier of fact could resolve the issue either way and an issue is
“material” if under the substantive law it is essential to the proper
disposition of the claim.

Adamson v. Multi Community Diversified

Svcs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008).

When confronted

with a fully briefed motion for summary judgment, the court must
ultimately determine "whether there is the need for a trial–whether,
-5-

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."
477 U.S. 242, 250 (1986).
judgment.
IV.

Anderson v. Liberty Lobby, Inc.,

If so, the court cannot grant summary

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Analysis
A.

Failure to Exhaust

Under the PLRA, an inmate must exhaust available administrative
remedies before filing a lawsuit about prison conditions.
§ 1997e.

42 U.S.C.

For Kansas state prisoners, the administrative remedies

require the inmate to seek an informal resolution with personnel who
work with the inmate on a daily basis. K.A.R. § 44–15–101(b). If the
informal resolution is unsuccessful, the inmate must progress through
a three-level process that includes submitting a grievance report form
to (1) the appropriate unit team member, (2) the warden of the
facility, and (3) the office of the secretary of corrections.
§ 44–15–101(d).

K.A.R.

The procedure to follow at each level is described

in detail in K.A.R. § 44–15–102.
The Kansas regulations also include a process for a personal
injury claim.

Specifically, the inmate must file a personal injury

claim with the facility and the secretary of corrections within ten
calendar days of the incident. K.A.R. § 44–16–104a. Importantly, the
requirements in this section apply regardless of whether the inmate
pursues a grievance pursuant to § 44–15–101.

K.A.R. § 44–16–104a(c).

Failure to exhaust administrative remedies under the PLRA is an
affirmative defense. Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910
(2007). Therefore, at summary judgment, defendant has the initial
-6-

burden of presenting the basis for his motion and demonstrating the
absence of a genuine issue of material fact.

Celotex Corp., 477 U.S.

at 323. To satisfy this burden, defendant must prove administrative
remedies
remedies.

were

available

and

plaintiff

failed

to

exhaust

these

Purkey v. CCA Detention Ctr., No. 06-3389, 2008 WL 313627,

*2 (10th Cir. Feb. 5, 2008).
Plaintiff contends that the administrative remedies were not
available to him.

With respect to the requirement that he file a

personal injury claim, plaintiff states that his request to EDCF staff
for a personal injury claim form was denied.

(Doc. 185 at 3-4).

Defendant denies plaintiff’s contention but does not cite to any
evidence in the record to support his denial.

“If prison officials

prevent a prisoner from proceeding with exhaustion of administrative
remedies, prison officials render that remedy unavailable such that
a court will deem the procedure exhausted.”

Baughman v. Harless, No.

04-6256, 2005 WL 1806442, *4 (10th Cir. Aug. 2, 2005)(citing Lyon v.
Vande Krol, 305 F.3d 806, 808 (8th Cir. 2002).

Therefore, there is

a genuine dispute of material fact as to whether the administrative
remedy for filing a personal injury claim was available to plaintiff.
With respect to appealing his grievance to the Secretary of
Corrections, plaintiff states that the appeal was returned to him
after he placed it in the mail because he had insufficient credit in
his account to purchase a stamp.

(Doc. 185 at 4-5).

Plaintiff

receives four stamps per month but contends that he had utilized all
of his stamps prior to mailing his appeal to the Secretary of

-7-

Corrections.4

Defendant denies that KDOC prevented plaintiff from

appealing his grievance but admits that plaintiff may have utilized
all of the stamps provided to him.

In Baughman, the Tenth Circuit

held that the grievance procedure is unavailable if a plaintiff is
“hindered from exhausting his administrative remedies by the failure
of prison officials to mail his grievance appeals.”
at *4.

2005 WL 1806442

Therefore, there is a genuine dispute of material fact as to

whether the grievance process was unavailable to plaintiff.
Defendant’s

motion

for

summary

judgment

on

the

basis

that

plaintiff failed to exhaust his administrative remedies is denied.
B.

Eighth Amendment

Turning

to

the

merits,

plaintiff

alleges

a

claim

against

defendant pursuant to 42 U.S.C. section 1983, which states 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, it does

4

There is nothing unconstitutional or even unreasonable about
placing a limit on the number of free stamps to which an inmate may
receive. Certainly, the evidence belies any suggestion that plaintiff
has been denied access to the courts because of mail restrictions.
This case contains over 200 docket entries. But beyond this case,
plaintiff has filed at least 25 other cases in this court.
His
rambling, prolix submissions in this case refer to numerous cases he
has filed in Kansas courts and letters he has sent to various state
officials.
Both Judges Crow and Robinson have noted plaintiff’s
perpetual claims about being denied materials and postage. See Lynn
v. Varella, 06-3172-SAC, 2007 WL 293906 (D. Kan. Jan. 26, 2007), aff’d
257 Fed. Appx. 80 (10th Cir. 2007) and Lynn v. Roberts, No. 11-3073JAR, 2011 WL 3667171 (D. Kan. Aug. 22, 2011).
-8-

provide an avenue through which civil rights can be redeemed.
Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995).

See

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 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).

There is no dispute that defendant was acting under color of

state law.
Qualified Immunity
While

section

1983

permits

the

possible

vindication

of

a

plaintiff’s rights, non-meritorious suits exact a high cost upon
society and law enforcement personnel. See Anderson v. Creighton, 483
U.S. 635, 638 (1987). In order to balance the competing interests,
government officials performing discretionary duties are afforded
qualified immunity shielding them from civil damages liability.
Pearson v. Callahan, 129 S. Ct. 808, 815, 172 L. Ed.2d 565 (2009).
Qualified immunity protects these officials unless their conduct
“violate[s] clearly established statutory or constitutional rights of
which a reasonable person would have known.”

Id.; Baptiste v. J.C.

Penney Co., Inc., 147 F.3d 1252, 1255 (10th Cir. 1998).

The defense

not only provides immunity from monetary liability, but perhaps more
importantly, from suit as well.

See Horstkoetter, 159 F.3d at 1277.

When a defendant claims qualified immunity, the plaintiff bears
the burden of (1) coming forward with sufficient facts to show that
the defendant’s actions violated a constitutional right and (2)
demonstrating the right allegedly violated was “clearly established”
at the time the conduct occurred. Pearson, 129 S. Ct. at 815-16. The
-9-

court will first address the constitutional violation prong.
In considering claims of excessive force brought by convicted
prisoners, a court must apply the standard set forth in Whitley v.
Albers, 475 U.S. 312 (1986), namely, “whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously
or sadistically to cause harm.”
112 S. Ct. 995 (1992).

Hudson v. McMillian, 503 U.S. 1, 7,

In Whitley, the Supreme Court stated that,

“[a]fter incarceration, only the ‘unnecessary and wanton infliction
of pain’ . . . constitutes cruel and unusual punishment forbidden by
the Eighth Amendment.”

475 U.S. at 319.

Relevant factors to be

considered include (1) the need for the application of force; (2) the
relationship between the need and amount of force used; and (3) the
extent of injury inflicted.

Id.; see also Smith v. Cochran, 339 F.3d

1205, 1212 (10th Cir. 2003). In Sampley v. Ruettgers, 704 F.2d 491
(10th Cir. 1983), the Tenth Circuit set forth the following three
factors the inmate must demonstrate: (1) the guard intended to harm
the prisoner; (2) the guard used more force than reasonably necessary
to maintain or restore institutional order; and (3) the guard's
actions caused severe pain or lasting injury to the prisoner.

Id. at

495.
Considering the facts alleged by plaintiff under the standards
enunciated in Hudson and Sampley, the court finds plaintiff has failed
to establish that defendant acted “maliciously and sadistically for
the very purpose of causing harm.” Smith, 339 F.3d at 1212. Nor does
plaintiff establish a “wanton infliction of pain” that was severe, or

-10-

a lasting injury.5

Instead, the facts clearly show that force was

“applied in a good faith effort to maintain or restore discipline.”
The video of the incident establishes that plaintiff was being

Id.

disruptive and non-compliant at the time of the incident.

The video

clearly supports a finding that plaintiff continued to threaten EDCF
staff and refused to comply with defendant’s commands by moving off
of the floor immediately after defendant told plaintiff to remain
still.

Defendant’s physical restraint of plaintiff occurred when

defendant was attempting to secure plaintiff so that he did not exit
the cell.6

Defendant’s reaction to plaintiff’s failure to follow

defendant’s command and stay on the floor was entirely appropriate
given the circumstances and plaintiff’s repeated threats to staff.
See Hudson, 503 U.S. at 6 (A prison guard's use of force is entitled
to deference by the courts because their decisions are made “in haste,
under

pressure,

and

frequently

without

the

luxury

of

a

second

chance.”)
Plaintiff has failed to present any evidence which would show
5

Plaintiff’s injury amounted to a damaged or broken dental
bridge - hardly a “lasting injury.”
6

In his complaint, plaintiff alleged that defendant kneed him
in the mouth during the restraint. In his response to defendant’s
motion for summary judgment, plaintiff states that he now believes
that he “was violently fist punched in the mouth [and] that was in
fact followed [with] an extremely vicious elbow punch to the mouth.”
(Doc. 212 at 8). Plaintiff’s current version of the event is based
entirely on his viewing of the video. His claims of being punched in
the face are not based on personal knowledge as required by D. Kan.
R. 56.1. The court has viewed the video several times. The video
shows that defendant immediately reentered the cell in order to
restrain plaintiff’s hands. There is no evidence on the video of
defendant punching plaintiff in the face. Therefore, while the video
does show a brief physical altercation between defendant and plaintiff
in an attempt to secure plaintiff, there is no evidence to support
plaintiff’s current version of the events.
-11-

that defendant was not acting in a good-faith effort to restore
discipline.
V.

Therefore, defendant is entitled to qualified immunity.

Conclusion
Defendant’s motion for summary judgment is granted. (Doc. 162).
No motion to reconsider this order - regardless of how it is

styled - shall be filed.

IT IS SO ORDERED.
Dated this

27th

day of February 2015, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

-12-