Adkins (ID 91202) v. Manning
Filing
40
MEMORANDUM AND ORDER granting 26 Motion for Default Judgment. The Court enters default judgment against Defendant Marshall Manning in the amount of $250,000. Signed by Chief District Judge Julie A. Robinson on 12/7/2018. (hl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WESLEY L. ADKINS,
Plaintiff,
v.
Case No. 15-CV-3215-JAR-KGG
MARSHALL MANNING,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff’s Motion for Default Judgment (Doc.
26). On September 19, 2018, the Court granted Plaintiff’s motion in part on the issue of liability,
but found that it did not have sufficient evidence before it to issue a default judgment against
Defendant for the compensatory damages requested.1 Accordingly, the Court held an evidentiary
hearing on November 19, 2018 on the issue of damages.2 For the reasons explained in detail
below, the Court now awards Plaintiff the full relief sought—$250,000 in compensatory
damages.
I.
Procedural Background
Plaintiff Wesley L. Adkins filed this civil rights action under 42 U.S.C. § 1983, alleging
that Defendant Marshall Manning used excessive force against him in violation of his Eighth
Amendment rights.3 Defendant failed to answer or otherwise defend against Plaintiff’s action as
required by the Federal Rules of Civil Procedure. Accordingly, on November 17, 2018, the clerk
1
Doc. 36.
2
Doc. 39.
3
Plaintiff’s claim against Defendant Merritt, Nickels, VanHoose, and Cline challenging the denial of his
request for protective housing was dismissed for failure to state a claim. Doc. 9.
executed an entry of default against Defendant pursuant to Fed. R. Civ. P. 55(a).4 The Court
took Plaintiff’s Motion for Default Judgment under advisement and noted that it would set a
hearing to determine damages.5 The Court then conditionally granted Plaintiff’s request to
submit affidavits on the issue of damages in lieu of presenting evidence at a hearing, reserving
the right to set the matter for an evidentiary hearing if it deemed the affidavits insufficient to
determine the issues raised in Plaintiff’s motion.6
On September 10, 2018, Plaintiff filed a Supplemental Memorandum in support of his
motion for default judgment, along with a supporting affidavit describing the incident with
Defendant Manning and Plaintiff’s resulting injuries.7 On September 19, 2018, the Court issued
its Order on Plaintiff’s Motion for Default Judgment, granting default judgment against
Defendant Manning on the liability issue of Plaintiff’s § 1983 claim, but requiring an evidentiary
hearing to determine the amount of compensatory damages Plaintiff is entitled to as a result of
his claim.8 The Court held an evidentiary hearing regarding the amount of damages on
November 19, 2018.9
II.
Standard
Following entry of default, Fed. R. Civ. P. 55(b)(2) allows the court to enter default
judgment. Once default is entered, the defendant is not entitled to defend itself on the merits.10
Rather, the court must determine whether the plaintiff’s allegations—taken as true—state a claim
4
Doc. 28.
5
Doc. 29.
6
Doc. 34.
7
Doc. 35.
8
Doc. 36.
9
Doc. 39.
10
Olcott v. Del. Flood Co., 327 F.3d 1115, 1125 n.11 (10th Cir. 2003) (citing Jackson v. FIE Corp., 302
F.3d 515, 524 (5th Cir. 2002)) (other citations omitted), cert. denied, 540 U.S. 1089 (2003).
2
against the defendant.11 If the court finds that there is a sufficient basis in the pleadings for
default judgment, that judgment only establishes liability; it does not establish the amount of
damages.12 The factual allegations in the complaint relating to the amount of damages are not
taken as true.13 Rather, “‘[d]amages may be awarded only if the record adequately reflects the
basis for [the] award via a hearing or a demonstration by detailed affidavits establishing the
necessary facts.’”14 However, where the damages claimed are capable of mathematical
calculation, Rule 55(b)(2) “does not require that the district court receive evidence on the
claimed damages amount before entering default judgment; rather, the Rule simply allows the
district court to conduct a hearing if it believes that additional investigation or evidence is
necessary.”15 Here, the damages claimed were not capable of mathematical calculation and the
affidavit submitted did not establish the necessary facts to award damages.16 Thus, the Court
held a hearing on the issue of awarding damages.
11
See, e.g., Kalinich v. Grindlay, No. 14-1120-SAC, 2014 WL 3740439, at *1 (D. Kan. July 30, 2014)
(quoting Olivas v. Bentwood Place Apartments, LLC, No. 09-4035-JAR, 2010 WL 2952393, at *4 (D. Kan. July 26,
2010)) (“Even after default, it remains for the court to consider whether the unchallenged facts constitute a
legitimate basis for the entry of a judgment since a part in default does not admit conclusions of law.”); Trang v.
Bean, 600 F. App’x 191, 193–94 (5th Cir. 2015).
12
See, e.g., Hermeris, Inc. v. McBrien, No. 10-2483-JAR, 2012 WL 1091581, at *1 (D. Kan. Mar. 30,
2012); DeMarsh v. Tornado Innovations, L.P., No. 08-2588-JWL, 2009 WL 3720180, at *2 (D. Kan. Nov. 4, 2009).
13
See, e.g., Kalinich, 2014 WL 3740439, at *1 (citing Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d
Cir. 1990); Beck v. Atl. Contracting Co., 157 F.R.D. 61, 64 (D. Kan. 1994) (citation omitted), superseded by statute
on other grounds as recognized by Cessna Fin. Corp. v. VYWB, LLC, 982 F. Supp. 2d 1226, 1233 (D. Kan. 2013).
14
Mathiason v. Aquinas Home Health Care, Inc., 187 F. Supp. 3d 1269, 1275 (D. Kan. 2016) (quoting
DeMarsh, 2009 WL 3720180, at *2).
15
Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1172 (10th Cir. 2011) (citing Fed. R. Civ. P. 55(b)(2);
Finkel v. Romanowicz, 577 F.3d 79, 87 (2d Cir. 2009)).
16
Doc. 36.
3
III.
Findings of Fact
The Court finds that Plaintiff is entitled to damages under 42 U.S.C. § 1983, based on the
facts taken from Plaintiff’s Complaint,17 the Affidavit of Wesley L. Adkins,18 and the testimony
and evidence presented at the November 19 hearing. Plaintiff testified at the hearing. Defendant
did not appear personally or by representative at the hearing, and thus presented no witnesses or
evidence on his behalf and did not cross-examine Plaintiff. The Court found Plaintiff’s
testimony credible and incorporates his testimony into the factual findings below.
Plaintiff was housed at the Hutchinson Correctional Facility from approximately July
2010 through March 2017, and is currently incarcerated at the El Dorado Correctional Facility.
Defendant was a Correctional Officer at the Hutchinson Correctional Facility until January 12,
2016, when his employment was terminated. On March 27, 2015, Defendant assaulted Plaintiff
after a disagreement over whether Plaintiff had permission to take a shower.
Although inmates at the Hutchinson Correctional Facility were generally permitted to
take daily showers, because Plaintiff was at the time housed in segregation, he could only shower
if he was signed up on the shower list. On March 27, 2015, Plaintiff went to the yard in the
morning to exercise, which qualified him for a mandatory shower following his yard time.
During his time in the yard, Plaintiff informed the officer on duty that he needed to use the
restroom, so the officer instructed Plaintiff that he would be placed on the afternoon shower list.
Defendant worked the 2:00-10:00 p.m. shift on March 27. When Defendant went to the
cells to gather the inmates on the afternoon shower list, Plaintiff informed him that he was
assigned to the afternoon list. Without explanation, Defendant responded that Plaintiff was not
17
Docs. 1, 2, and 2-1.
18
Doc. 35-1.
4
on the list, and refused to listen to Plaintiff’s attempts to clarify the situation. Plaintiff
subsequently informed Correctional Officer Logan Vibbert that he was on the shower list, and
Officer Vibbert allowed Plaintiff to take a shower.
Officer Vibbert handcuffed Plaintiff, as was typical, to lead him to the shower. Upon
entering the shower, Plaintiff encountered Defendant and they exchanged words. Defendant was
argumentative and irritated that Plaintiff received the opportunity to shower. Plaintiff responded
by telling him that Officer Vibbert did the right thing. Officer Vibbert unhandcuffed Plaintiff to
take his shower. After taking his shower, Plaintiff dried off, was handcuffed, and attached to a
chain lead held by Officer Vibbert, who escorted him back to his cell. Except for his underwear
and a towel, Plaintiff was naked during the walk back to his cell, located in the upper level of the
A3 cell block.
While being escorted to his cell by Officer Vibbert, Defendant, who was a large man and
known as an MMA fighter, assaulted Plaintiff. Plaintiff did not initiate physical contact with
Defendant, but did say something to him in passing. As seen in security footage,19 Defendant
responded to Plaintiff’s exchange by punching Plaintiff in the face. Defendant then pushed
Plaintiff to the concrete floor, continued to hit him, spit on him, and placed him in a chokehold.
Defendant placed his foot on the railing as leverage to hold Plaintiff to the ground while choking
him. While in the chokehold, Plaintiff attempted to voice to Officer Vibbert that Defendant was
choking him intentionally. Despite Officer Vibbert’s direct orders, Defendant did not stop
choking Plaintiff until two other officers came running up to the upper level of the cell block,
ordering him to stop.
19
Hrg. Ex. 1.
5
Although the duration of the incident was short, Plaintiff experienced both physical and
mental injuries from Defendant’s assault. Physically, Plaintiff suffered from, and sought medical
treatment for, abrasions on his face and lip and an ankle injury. Photos of Plaintiff taken shortly
after the incident depict a thick stream of blood down the side of his face and ear, and a busted
lip.20 Initially, the infirmary provided Plaintiff with pain killers. Plaintiff’s ankle remained
swollen for two days following the incident, however, leading Plaintiff to believe that he
fractured his ankle. After Plaintiff sought additional medical treatment for his ankle, the prison
nurse ordered x-rays of the ankle; however, prison staff denied the x-ray request. Today,
Plaintiff still suffers pain from his ankle injury.
Plaintiff’s mental injuries stem from the fear, anguish, and anxiety caused by Defendant’s
assault. Plaintiff filed a grievance against Defendant for excessive use of force. Subsequently,
Plaintiff was charged with insubordination and battery in a disciplinary report filed by Defendant
on March 30, 2015. Plaintiff believes Defendant falsified statements in order to convict Plaintiff
of the charges.
Although on April 27, 2015 he was ultimately acquitted of the charges, Plaintiff spent
significant time after his acquittal in a different holding cell—a “slam cell” or MRA cell, also
known as a “more restricted area” cell. The MRA cell is behind a solid door and more isolated
than segregation cells. Plaintiff compared the MRA cell to solitary confinement—the cell was
dark, he could not interact with anyone other than when approached by staff, and there was no
“voicebox” so Plaintiff could not hear staff and staff could not hear him. The cell also contained
a toilet, but Plaintiff was not allowed to flush the toilet himself, which resulted a foul odor in his
20
Hrg. Exs. 2 and 3.
6
cell. During the nine and a half months that Plaintiff was in segregation, Plaintiff spent several
of these months in the MRA cell.
Plaintiff remained housed in segregation and the MRA cell for nine and a half months
because, as a result of the altercation, he did not want to return to general population without
being protected from Defendant. Out of fear for his life, safety, and well-being, Plaintiff filed
numerous emergency grievances requesting protective custody from Defendant, or in the
alternative, a transfer to a different correctional facility. Those requests were denied, and
Plaintiff was ordered to return to general population. Plaintiff anticipated that Defendant would
lash out at him for filing grievances against him. During the time he refused to return to general
population out of fear, Plaintiff remained housed in segregation and received additional stays in
the MRA cell.
While housed in segregation, Plaintiff received mental health services at least once a
week to address his apprehension and fear of Defendant. According to Plaintiff, being housed in
the MRA cell was depressing, stressful, and confusing because he had not done anything wrong.
Plaintiff ultimately chose to go on a hunger strike while in the MRA cell. Plaintiff talked with
mental health services the day he went on the hunger strike, and later that day, Defendant was
fired. Subsequently, Plaintiff moved to general population and was ultimately transferred to the
El Dorado Correctional Facility. Plaintiff, who was visibly shaken at the hearing when
describing the incident with Defendant, continues to suffer from emotional problems caused by
the altercation.
7
IV.
Discussion
As the issue of liability has already been decided,21 the Court must now determine the
appropriate award of damages to compensate for Plaintiff’s injuries. “‘[T]he basic purpose’ of §
1983 damages is ‘to compensate persons for injuries that are caused by the deprivation of
constitutional rights.’”22 The amount of damages for a § 1983 constitutional violation “is
typically determined according to principles derived from the common law of torts.”23 “To that
end, compensatory damages may include not only out-of-pocket loss and other monetary harms,
but also such injuries as ‘impairment of reputation . . . , personal humiliation, and mental anguish
and suffering.’”24 A § 1983 plaintiff must show proof of actual injury to recover damages, and
the damages awarded “must be proportional to the actual injury incurred.”25
Plaintiff seeks $250,000 in compensatory damages for pain and suffering resulting from
Defendant’s use of excessive force. In cases involving excessive force claims, the amount of
compensatory damages varies widely, based on individual facts and the type and length of the
plaintiff’s injuries.26 While no out-of-pocket or monetary damages resulted from Defendant’s
21
Doc. 36.
22
Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986) (quoting Carey v. Piphus, 435 U.S. 247,
254 (1978)).
23
Id. (citations omitted).
24
Id. (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974)); see also Jolivet v. Deland, 966 F.2d
573, 576 (10th Cir. 1992) (explaining compensatory damages may include damages for mental and emotional
distress).
25
Jolivet, 966 F.2d at 576 (quoting Piver v. Pender Cty. Bd. of Educ., 835 F.2d 1076, 1082 (4th Cir. 1987)).
26
See e.g., Hendrickson v. Cooper, 589 F.3d 887 (7th Cir. 2009) (upholding a jury award of $75,000
compensatory damages and $125,000 punitive damages in an excessive force claim brought against a corrections
officer who threw the plaintiff against a wall, slammed him onto the concrete floor which caused severe pain all
over the plaintiff’s body); Jackson v. Austin, 241 F. Supp. 2d 1313, 1323 (D. Kan. 2003) (awarding $15,000 in
compensatory damages where an officer grabbed the plaintiff’s bad leg and dragged the plaintiff fifty yards,
resulting in a contusion, swollen wrists and knees, and lasting knee and shoulder pain); Keith v. Koerner, No. 11-cv2281-DDC-JPO, 2016 WL 4541447, at *1, *7–8 (D. Kan. Aug. 30, 2016) (awarding $750,000 in actual damages in
an Eighth Amendment case where an officer raped and impregnated a prisoner and the plaintiff testified as to her
depression and mental distress resulting from the incident); Meyer v. Nava, No. 04-4099-RDR, 2007 WL 3046583,
at *1 (D. Kan. Oct. 17, 2007) (awarding plaintiff $750,000 for emotional and mental distress damages in a § 1983
8
use of excessive force, Plaintiff’s testimony and evidence support his request for $250,000 in
compensatory damages for his pain and suffering. The evidence shows that Plaintiff not only
suffered from, and continues to suffer from physical injuries, but additionally continues to suffer
from humiliation, anguish, and anxiety because of Defendant’s conduct.
Plaintiff offered sufficient evidence of his physical injuries caused by Defendant. The
photos admitted into evidence depict Plaintiff’s busted, swollen lip and a thick trail of blood
running across his left cheek and ear. Plaintiff additionally testified that he suffered from an
ankle injury that still bothers him today. Although he did not present documentary evidence of
his ankle injury, Plaintiff explained that the nurse ordered x-ray imaging of his ankle because it
was still swollen two days after the incident, but that the staff denied this request. Furthermore,
the video evidence admitted at the hearing demonstrates Defendant’s gross exertion of force and
power over Plaintiff, who was vulnerable not only because of his status as a prisoner, but also
because at the time he was handcuffed and tethered to Officer Vibbert and had no way of
removing himself from the situation.
In addition to his physical injuries, Plaintiff suffered and continues to suffer emotionally
because of Defendant’s assault. After being intentionally and relentlessly choked, Plaintiff had a
justifiable fear for his life, safety, and well-being because he believed that Defendant would do
something to further harm him and did not know the extent of what Defendant was capable of
doing. Plaintiff testified that after the assault he became so fearful of Defendant that he did not
want to be transferred from segregation into general population, even though this resulted in him
case against a prison employee who raped, sodomized, and sexually battered the plaintiff while she was
incarcerated); Jones v. Courtney, No. 04-3255-JWL-DJW, 2007 WL 2893587 (D. Kan. Sept. 28, 2007) (awarding
$20,000 in compensatory damages for approximately two and a half months of pain and suffering where officer
placed the plaintiff in a headlock, pushed him to the floor, prevented him from breathing and the nurse found that
the plaintiff suffered from a swollen hand, collarbone and knot in his finger, and declining to award damages for
emotional distress because the plaintiff did not request or put on testimony to prove these).
9
spending a total of several months in the MRA cell, much more restrictive than the regular
segregation cells. Plaintiff did not understand why he was in the MRA cell, but he believed all
the correctional officers were biased against him because of his issues with Defendant and that
he could not trust them. Indeed, the staff had denied a nurse’s request to x-ray Plaintiff’s
swollen ankle, and the time in the MRA cell essentially punished Plaintiff for not returning to
general population.
Plaintiff explained that the several months in MRA cell was depressing, stressful, and
destroyed him emotionally. Despite this, Plaintiff’s fear of Defendant was so great that he chose
to stay in segregation and the MRA cell to avoid further exposure to Defendant. Moreover,
Plaintiff’s testimony about his weekly mental health services and ultimate hunger strike support
the extent of his mental suffering. Even at the hearing, Plaintiff struggled to talk about the
incident with Defendant and appeared visibly shaken and disturbed by having to relive the events
that occurred over three years prior.
The Court finds that Plaintiff has suffered real emotional and physical injuries from the
Defendant’s use of excessive force against him, an inmate in a truly helpless position. In
conjunction with the presentation of evidence and testimony that supports Plaintiff’s injuries, the
fact that Plaintiff is a prisoner should not discount his pain and suffering that resulted from
Defendant’s misconduct. Thus, the Court finds sufficient evidence and an appropriate basis to
award Plaintiff the total damages he requested at the hearing—$250,000 in compensatory
damages.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for Default
Judgment (Doc. 26) is granted. The Court enters default judgment against Defendant Marshall
Manning in the amount of $250,000.
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IT IS SO ORDERED.
Dated: December 7, 2018
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE
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