Lynn v. Maddox et al

Filing 42

MEMORANDUM AND ORDER granting in part and denying in part 13 Motion to Dismiss. Defendant Hughes' motion to dismiss is granted, with prejudice. No motion to reconsider, regardless of how it is styled, may be filed. Defendant Maddox's motion to dismiss is denied, without prejudice. See Order for details. Signed by District Judge Monti L. Belot on 5/1/2013. Mailed to Patrick Lynn via regular mail on 5/1/13. (alm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

PATRICK LYNN,

)
)
Plaintiff,
)
)
v.
)
)
LEONARD MADDOX and ANTHONY HUGHES, )
)
Defendants.
)
)

CIVIL ACTION
No.

12-3104-MLB

MEMORANDUM AND ORDER
Plaintiff has filed his response to defendants’ motion to dismiss
(Doc. 38).

He has abandoned his official capacity claims against the

defendants who have not filed a reply.
The files and records show that counsel, Robert C. Sullivan and
Timothy Morgan, represented plaintiff when this case was filed on
April 26, 2012.

The filing fee was paid.

Counsel continued to

represent plaintiff until they were permitted to withdraw in January
2013 (Doc. 26).

Since that time, plaintiff has proceeded pro se.

Defendants have moved to dismiss on three grounds: (1) Eleventh
Amendment immunity from the official capacity claims; (2) statute of
limitations as to defendant Hughes; and (3) qualified immunity on the
use of excessive force claim against Maddox. Ground (1) is moot. The
court first will consider Hughes’ statute of limitations defense.
Hughes
Plaintiff’s claim against Hughes allegedly arises out of an
incident which occurred on February 15, 2010.

Plaintiff seeks to

avoid the 2-year limitation by asserting that the administrative
grievance process took in “excess of 60 days” but he does not state

when his administrative claim was finally denied.

All plaintiff

provides is an interdepartmental memorandum which purports to show
that on May 24, 2011 he agreed to his team manager’s request for
additional time to respond to his grievance.

But he provides no

evidence that the administrative grievance even pertained to Hughes.
Plaintiff says he was “unconditionally released from segregation”
on May 25, 2011.

At that point, if not before, plaintiff had until

February 2012 to file his complaint.

If plaintiff is attempting to

raise equitable tolling as to the untimely claim against Hughes (he
does not use that term), his responses fail to show that exceptional
circumstances prevented his lawyers from filing a timely claim.

The

court rejects plaintiff’s assertions that prison officials did not
provide

sufficient

stamps

and

confiscated

his

legal

material.

Plaintiff has filed 29 cases in this court and at least 4 cases in
state court.

These facts, standing alone, belie any suggestion that

plaintiff has been denied access to this, or any, court.
Plaintiff next contends that allegations against Hughes “relate
back” to another case his lawyers filed in this court. In case no. 113073, filed by counsel on December 6, 2011 (Doc. 24), Hughes was named
in connection with the February 15, 2010 “dog strap” incident alleged
in this case.

Many other defendants were sued, as well.

By

Memorandum and Order of March 28, 2012 (Doc. 33), Judge Julie Robinson
dismissed the claims against Hughes, without prejudice, and permitted
the filing of an amended complaint.

When counsel filed the amended

complaint on April 25, 2012 (Doc. 34), the February 15, 2010 incident
was not alleged and Hughes was not named as a defendant.

The

“relation back” provisions of Fed. R. Civ. P. 15(c) do not apply.
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Marsh v. Soares, 223 F.3d 1217, 1219-20 (10th Cir. 2000), cert.
denied, 531 U.S. 1194 (2001).
Plaintiff’s claims against Hughes are dismissed, with prejudice.
Maddox
The

court

now

will

consider

Maddox’s

defense

of

qualified

immunity. The complaint, prepared by counsel, alleges the following:
On

February

13,

2011

Defendant

Maddox

attacked

Plaintiff while he was lying on the floor face down and on
his side.
Plaintiff was naked and spitting blood, because he had
been roughed up and pinned down, he was also already
shackled at the legs and hands.
Plaintiff tried to twist on his side as opposed to
laying still on his stomach to alleviate the severe pain
that

had

already

been

caused

to

him

at

which

point

Defendant Maddox further kneed Plaintiff in the mouth so
hard that it broke his dental bridge and anchor teeth.
Defendant Maddox then cut off Plaintiff’s knee brace
even though he knew that Plaintiff was unable to walk the
distance that Defendant Maddox wanted him to with his legs
being

shackled

and

with

his

waist

restrained

because

Plaintiff had a knee injury.
Prior

to

February

13,

2011

Plaintiff

had

filed

grievances against Defendant Maddox for excessive use of
force

and

for

his

retaliation

exercising his prisoner rights.

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against

Plaintiff

for

(Doc. 1 at 4).
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.”

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).
There is no dispute that defendants were acting under color of state
law.
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 v. Callahan, 129 S. Ct.

808, 815, 172 L. Ed.2d 565 (2009).

“Although summary judgment

provides the typical vehicle for asserting a qualified immunity
defense, [the court] will also review this defense on a motion to
dismiss” but will “not dismiss a complaint ‘for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief.’”

Peterson v. Jensen, 371 F.3d 1199, 1201-02, (10th Cir.

2004) (quoting Currier v. Doran, 242 F.3d 905, 917 (10th Cir. 2001)).
Plaintiff contends that Maddox violated his Eighth Amendment
right to be free from excessive force.
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The Eighth Amendment states

that “[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” U.S. Const.
amend. VIII. The Supreme Court has said that the use of excessive
force against a prisoner can violate the Eighth Amendment, stating
that “the unnecessary and wanton infliction of pain . . . constitutes
cruel and unusual punishment forbidden by the Eighth Amendment.”
Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 89 L. Ed.2d 251
(1986)(internal citations omitted). An excessive force claim involves
two

prongs:

wrongdoing

“(1)
was

an

objective

objectively

prong

harmful

that

asks

enough

if

to

the

alleged

establish

a

constitutional violation, and (2) a subjective prong under which the
plaintiff must show that the officials act[ed] with a sufficiently
culpable state of mind.”

Smith v. Cochran, 339 F.3d 1205, 1212 (10th

Cir. 2003).
Maddox contends that plaintiff’s claim fails to establish the
objective prong because the allegations indicate no more than a single
instance of de minimis force.

Maddox cites to Marshall v. Milyard,

No. 10-1104, 2011 WL 285563 (10th Cir. Jan. 31, 2011) and Hughes v.
Sedgwick County Sheriff, No. 08-3006, 2011 WL 112050 (D. Kan. Jan. 13,
2011), to support his position.

In Marshall, a prisoner brought a

section 1983 claim against a guard after the guard dug his fingers
into the plaintiff’s arm and resulting injury was a large bruise. The
Tenth

Circuit

determined

that

the

allegations

established

subjective prong but failed to meet the objective prong.

the

The Tenth

Circuit cited to various cases alleging pushes and shoves by officers.
This case, however, is distinguishable.

The allegations are that

plaintiff was kneed in the mouth while laying on the floor naked and
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in restraints, resulting in plaintiff’s mouth sustaining serious
injuries, not mere bruises.
In

Hughes,

the

district

court

dismissed

the

plaintiff’s

excessive force claim because the allegations failed to allege any
physical injury that resulted from the officer’s contact with the
plaintiff.

Again, the allegations here are distinguishable.

Based on the allegations, which the court must view in a light
most favorable to plaintiff, Maddox’s conduct was objectively harmful
enough to establish a constitutional violation. Turning to the second
element, the court must find that Maddox acted maliciously and
sadistically.

In making this determination, the court must “balance

the need for application of force with the amount of force used.”
Mitchell v. Maynard, 80 F.3d 1433, 1440 (10th Cir. 1996).

In

Mitchell, the plaintiff was naked and shackled and on the ground when
the guards beat him.

The Tenth Circuit found that the subjective

element was met because there was no evidence that the plaintiff had
acted inappropriately or posed any threat to the guards at the time
of the beating.

As in Mitchell, there is no evidence that plaintiff

posed any threat or that he was acting inappropriately.

The only

allegation was that plaintiff twisted on the floor prior to the
assault.

Therefore, the court finds that the second prong has been

met.
Finally, Maddox contends that plaintiff cannot establish that
his right to be free from excessive force was clearly established
because there is not a Tenth Circuit case with facts similar to this
one. “In determining whether the right was ‘clearly established,’ the
court assesses the objective legal reasonableness of the action at the
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time of the alleged violation and asks whether ‘the right [was]
sufficiently clear that a reasonable officer would understand that
what he is doing violates that right.’”

Medina v. Cram, 252 F.3d

1124, 1128 (10th Cir. 2001) (quoting Wilson v. Layne, 526 U.S. 603,
615 (1999)). There are numerous Tenth Circuit cases which discuss the
appropriate level of force to use in prisoner situations.

The Tenth

Circuit does not require the heightened standard Maddox suggests. The
court finds that a restrained inmate’s right to be free from an
unreasonable and unnecessary use of force was clearly established at
the time of this incident.

Mitchell, 80 F.3d at 1447.
Conclusion

Defendant Hughes’ motion to dismiss is granted, with prejudice.
No motion to reconsider, regardless of how it is styled, may be filed.
Defendant Maddox’s motion to dismiss is denied, without prejudice.
This case is returned to the magistrate assigned to conduct discovery
limited to the issue of qualified immunity.

The magistrate judge is

encouraged to acquaint himself with plaintiff’s proven record of
filing, or attempting to file, prolix and unauthorized submissions.
The

magistrate

judge

may

wish

to

consider

filing

restrictions,

including page limitations and a requirement that any submission by
plaintiff be double-spaced and in legible handwriting, as well as
limitations as to the number and type of exhibits.
suggestions, not orders.

These are merely

This court will leave to the magistrate’s

sound discretion the best way to permit this case to move forward
under applicable rules, including Fed. R. Civ. P. 1, and case law.

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IT IS SO ORDERED.
Dated this

1st

day of May 2013, at Wichita, Kansas.

s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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