Evans (ID 68035) v. Heimgartner et al
Filing
98
MEMORANDUM AND ORDER ENTERED: Defendants' Motion for Summary Judgment 81 is granted. Plaintiff's Motion for Summary Judgment 93 is denied. Signed by District Judge Daniel D. Crabtree on 11/06/19. Mailed to pro se party Zabriel L. Evans by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ZABRIEL L. EVANS,
Plaintiff,
Case No. 16-3095-DDC-ADM
v.
JOHNNIE CAWTHORN, et al.,
Defendants.
MEMORANDUM AND ORDER
Pro se plaintiff1 Zabriel Evans brings this civil rights action under 42 U.S.C. § 1983. He
alleges that defendants Johnnie Cawthorn, Cody Austin, Robert Wallace, and Heather Griffith
used excessive force and thus violated his rights under the Eighth Amendment to the United
States Constitution.
Plaintiff was incarcerated at El Dorado Correctional Facility (“EDCF”) in Butler County,
Kansas, when the events giving rise to this lawsuit allegedly occurred. Defendants worked as
security officers at the facility. Defendants have filed a Motion for Summary Judgment (Doc.
81). Plaintiff has filed a Response (Doc. 88) and defendants have filed a Reply (Doc. 91).
Plaintiff also has filed a Motion for Summary Judgment (Doc. 93).2 Defendants have filed a
Response (Doc. 96) to his motion.
1
Because plaintiff proceeds pro se, the court construes his pleadings liberally. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that courts must construe pro se litigant’s
pleadings liberally and hold them to a less stringent standard than formal pleadings drafted by
lawyers). But, under this standard, the court does not assume the role as plaintiff’s advocate. Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). The court does not construct
arguments for plaintiff or search the record. Id.
2
Plaintiff filed his Motion for Summary Judgment on June 28, 2019, almost four months after the
court’s March 1, 2019 dispositive motion deadline (Doc. 57). Even though plaintiff proceeds pro se, his
status as a pro se litigant does not excuse him from complying with the court’s rules or facing the
I.
Procedural Background
Plaintiff filed his Complaint on May 3, 2016. Doc. 1. It alleges § 1983 claims against
Johnnie Cawthorn, Cody Austin, Robert Wallace, and Heather Griffith in their individual
capacities. On March 31, 2017, the court ordered the Kansas Department of Corrections
(“KDOC”) to prepare a Martinez report. 3 Doc. 8. KDOC filed the Martinez report on
September 15, 2017 (Doc. 22) and an Amended Martinez report on December 14, 2017 (Doc.
45).
Defendants moved for dismissal under Rule 12(b)(6). Doc. 46. On June 20, 2018, the
court granted defendants’ Amended Motion to Dismiss in part and denied it in part. Doc. 52.
The court granted defendants’ motion on the excessive force claim based on plaintiff’s alleged
wrist injuries. And the court granted the defendants’ motion on plaintiff’s constitutionally
deficient medical care claim. Also, the court dismissed plaintiff’s injunctive relief claim as
moot. 4 But the court denied defendants’ motion as it applied to plaintiff’s excessive force claim
relying on his injuries allegedly arising from defendants’ use of pepper spray. This excessive
force claim is thus the only remaining claim in the case.
consequences of noncompliance. Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (citing
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)). Nevertheless, the court considers and decides
plaintiff’s untimely motion.
3
When a pro se plaintiff is a prisoner, the court may order prison officials to investigate the
plaintiff’s claims and prepare a report (called a Martinez report) to serve as a record “sufficient to
ascertain whether there are any factual or legal bases for the prisoner’s claims.” Hall v. Bellmon, 935
F.2d 1106, 1109 (10th Cir. 1991).
4
Plaintiff asked for injunctive relief against EDCF Warden James Heimgartner to prevent him
from enforcing KDOC’s Use of Force Policy against Prisoners. Doc. 1 at 10. Earlier, the court dismissed
the claim as moot because KDOC transferred plaintiff to Hutchinson Correctional Facility, so this claim
no longer presented a live controversy. Doc. 52 at 20. This ruling led the court to dismiss Mr.
Heimgartner from the suit. Id.
2
On March 1, 2019, defendants filed a Motion for Summary Judgment. Doc. 81. In
accordance with D. Kan. Rule 56.1(f), defendants sent plaintiff a “Notice to Pro Se Litigant Who
Opposes a Summary Judgment Motion.” Doc. 83. This notice advised plaintiff that he “may not
oppose summary judgment simply by relying upon the allegations in [his] complaint. Rather,
[he] must submit evidence, such as witness statements or documents, countering the facts
asserted by the defendants and raising specific facts that support [his] claim.” Id. at 1. Also,
consistent with our local rules, defendants attached to their Notice the full texts of the rules
governing summary judgment: Fed. R. Civ. P. 56 and D. Kan. Rule 56.1. Id. at 3–5. Plaintiff
filed a Response (Doc. 88) with 11 exhibits supporting his claim (Doc. 88-1). Defendants filed a
Reply (Doc. 91). Plaintiff then filed his own Motion for Summary Judgment (Doc. 93).5
Defendants filed a Response (Doc. 96).
II.
Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that “no genuine
dispute” exists about “any material fact” and that it is “entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(a). When it applies this standard, the court views the evidence and draws
inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625
F.3d 1279, 1283 (10th Cir. 2010). “An issue of fact is ‘genuine’ ‘if the evidence is such that a
reasonable jury could return a verdict for the non-moving party’ on the issue.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue of fact is ‘material’ ‘if
5
Plaintiff’s Memorandum in Support of his Motion for Summary Judgment (Doc. 94) cites various
exhibits, but he attached no exhibits to his filing. It appears that plaintiff meant to reference exhibits he
had submitted with his Response (Doc. 88) to defendants’ summary judgment motion. The court thus
assumes that the exhibits cited in plaintiff’s Memorandum in Support of his Motion for Summary
Judgment (Doc. 94) refer to exhibits in plaintiff’s earlier response to defendants’ motion (Doc. 88). And
thus, the court considers those exhibits when deciding both summary judgment motions.
3
under the substantive law it is essential to the proper disposition of the claim’ or defense.” Id.
(quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
The moving party bears “both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter of
law.” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (citing Trainor v. Apollo
Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To meet this burden, the moving
party “need not negate the non-movant’s claim, but need only point to an absence of evidence to
support the non-movant’s claim.” Id. (citing Sigmon v. CommunityCare HMO, Inc., 234 F.3d
1121, 1125 (10th Cir. 2000)).
If the moving party satisfies its initial burden, the non-moving party “may not rest on its
pleadings, but must bring forward specific facts showing a genuine issue for trial [on] those
dispositive matters for which it carries the burden of proof.” Id. (quoting Jenkins v. Wood, 81
F.3d 988, 990 (10th Cir. 1996)); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);
Anderson, 477 U.S. at 248–49. “To accomplish this, the facts must be identified by reference to
affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at
670 (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)).
The court applies this same standard when parties file cross-motions for summary
judgment. Each movant bears the burden of establishing that, for purposes of its motion, no
genuine issue of material fact exists and it is entitled, as a matter of law, to the judgment sought
by its motion. Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.
2000). Cross-motions for summary judgment “are to be treated separately; the denial of one
does not require the grant of another.” Buell Cabinet Co., Inc. v. Sudduth, 608 F.2d 431, 433
(10th Cir. 1979). But where cross-motions overlap, the court may address the legal arguments
4
together. Berges v. Standard Ins. Co., 704 F. Supp. 2d 1149, 1155 (D. Kan. 2010) (citation
omitted).
Summary judgment is not a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327.
Instead, it is an important procedure “designed ‘to secure the just, speedy and inexpensive
determination of every action.’” Id. (quoting Fed. R. Civ. P. 1).
III.
Motions for Summary Judgment
A. Uncontroverted Facts
Plaintiff has been an inmate in KDOC custody since July 12, 2005. Doc. 82-2 at 1. In
March 2016—the time of the incidents at issue here—KDOC housed plaintiff as its prison near
El Dorado, Kansas. Id. at 2. Since July 2014, KDOC has issued disciplinary reports to plainitff
for battery (12 times), interfering with restraints (five times), and disobeying orders (29 times).
Id. at 3–8. The following facts come from the summary judgment record—including the
Complaint, the Martinez report,6 and properly submitted affidavits and exhibits—and are either
uncontroverted or construed in the light most favorable to plaintiff.7
1. March 1, 2016 Incident
On March 1, 2016, Officer Robert Wallace didn’t provide plaintiff his dinner tray
because plaintiff had covered his cell window for privacy. Doc. 88-1 at 13 (¶ 2). When plaintiff
realized that Officer Wallace had skipped his cell, he called him to his cell door and asked for his
6
On summary judgment, a Martinez report “is treated like an affidavit, and the court is not
authorized to accept the factual findings of the prison investigation when the plaintiff has presented
conflicting evidence.” Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). But “absent valid
challenge,” the Martinez report “may be treated as providing uncontroverted facts.” Hartz v. Sale, 687 F.
App’x 783, 785 (10th Cir. 2017).
7
Whether plaintiff’s claim survives summary judgment depends on whether defendants have
qualified immunity. The court thus views the facts in the light most favorable to the plaintiff because
“[i]n resolving questions of qualified immunity, courts are required to view the facts in the light most
favorable to the party asserting the injury . . . .” Scott v. Harris, 550 U.S. 372, 377 (2007).
5
meal. Id. at (¶ 3). Officer Wallace refused to give plaintiff his meal, and wouldn’t call the
captain/shift supervisor as plaintiff asked. Id. at (¶¶ 3, 4). Plaintiff then signaled a medical
emergency so that he could speak to a captain. Doc. 88 at 4; Doc. 88-1 (¶ 5).
Since plaintiff had signaled a medical emergency, officers began placing him in restraints
to perform a medical assessment. Doc. 82-4 at 1 (¶ 3); Doc. 82-5 at 1 (¶ 5). Officer Wallace
applied one of the restraints to plaintiff’s left wrist. Doc. 82-4 at 1 (¶ 3). Plaintiff then turned
toward his cell door to try to talk to Officer Wallace about his meal tray, but “there were no
threats made nor were there any attempts of violence or resistance towards Officer Wallace.” 8
Doc. 88-1 at 14 (¶ 6–7). Plaintiff’s only request was that he receive his meal tray.9 Doc. 88-1 (¶
7).
Officer Wallace called over the radio for Officer Cody Austin, who responded to
plaintiff’s cell. Doc. 88-1 (¶ 8); Doc. 82-6 (¶ 3). Officer Wallace instructed Officer Austin to
8
As explained above, the court views the facts in the light most favorable to the plaintiff. Plaintiff
disputed some aspects of defendants’ statement of material facts. Where properly disputed, the court has
accepted plaintiff’s version of the facts. On occasion, plaintiff did not submit pertinent facts. And in
those circumstances, the court adopted defendants’ facts to provide context for other facts supplied by
plaintiff. For example, defendants assert (by affidavit and with information from the Martinez report) the
following version of events: Plaintiff turned toward Officer Wallace and tried to gain control of the
restraints while Officer Wallace was handcuffing him. Doc. 82-4 at 1 (¶ 3); Doc. 82-5 at 1 (¶ 5); Doc. 22
at 2 (¶ 3). Officer Austin and Mr. Pickett (an EDCF nurse) saw plaintiff and believed plaintiff was
resisting Officer Wallace. Doc. 82-6 (¶ 3); Doc. 82-5 (¶ 5). Plaintiff refused to allow Officer Wallace to
apply the second restraint or remove the restraint from his left hand. Doc. 82-6 (¶ 3). He pulled on the
restraints, injuring Officer Wallace’s wrist and hand. Doc. 82-4 (¶ 4); Doc. 82-6 (¶ 3); Doc. 82-5 (¶ 6);
Doc. 78-1 at 17. Officer Austin saw that plaintiff then tried to remove the restraints from the tether. Doc.
82-6 (¶ 4). Officer Austin ordered plaintiff to stop, but he refused. Doc. 82-6 (¶ 4); Doc. 82-4 (¶ 3). So,
Officer Austin sprayed plaintiff’s face with a three-second burst of pepper spray to “gain compliance.”
Doc. 82-6 (¶ 4); Doc. 82-4 (¶ 3); Doc. 82-7 (¶ 3). After Officer Austin sprayed plaintiff, he stopped
trying to remove the restraints from the tether. Doc. 82-6 (¶ 4); Doc. 82-7 (¶ 3). Officer Austin sprayed
plaintiff just once. Doc. 82-7 (¶ 3). After the incident, Officer Wallace went to the emergency room for
lacerations and a sprained left wrist. Doc. 82-4 (¶¶ 4–5); Doc. 78-1 at 17.
9
Plaintiff’s assertions in his affidavit conflict with his earlier “Appeal of Grievance” form
(included the Martinez report) that he “refused to give up the cuffs until they brought me food.” (Doc.
45-5 at 13). But for summary judgment purposes, the court accepts plaintiff’s assertion in his affidavit
that he was not threatening or violent toward Officer Wallace.
6
“[s]pray him!” while Officer Wallace held plaintiff in front of his cell door. Doc. 88-1 (¶ 9).
Officer Austin first sprayed plaintiff through the food pass, and then reached his arm into the cell
and “sprayed [plaintiff] in the face and upper body several times . . . without warning or attempt
at resolution.” Doc. 88-1 (¶ 9).
Plaintiff’s affidavit asserts that Officers Austin and Wallace refused to give him a shower
and would not “cut the water on” in his cell.10 Doc. 88-1 at 14 (¶ 10). Plaintiff’s affidavit also
asserts he never refused a medical assessment. Doc. 88-1 (¶ 12). And plaintiff’s affidavit asserts
officers refused him a change of clothing.11 Id. (¶ 11).
2. March 5, 2016 Incident
On March 5, 2016, plaintiff made another call for a medical assessment. Doc. 82-9 (¶ 3);
Doc. 82-10 (¶ 3). Officers Cawthorn and Griffith responded. Id. Officer Cawthorn applied one
of the restraints to plaintiff’s left wrist. Doc. 82-9 (¶ 5). Plaintiff then turned around “to see
what the issue was” because Officer Griffith was tugging at the tether attached to the restraints.
Doc. 88-1 (¶¶ 15–17). Plaintiff’s wrist was stuck at the top of the food pass, so plaintiff used his
“free hand to pull and get [his] wrist free from the top of the food pass so that [he] could stop the
pain and also show [his] compliance by sticking [his] whole arm out of [the] food pass.”12 Doc.
88-1 at 15 (¶ 18). Plaintiff pulled on the restraints “to release some of the pressure of them
10
According to defendants, plaintiff refused medical treatment after the incident. Doc. 22 at 2;
Doc. 82-6 (¶ 7); Doc. 82-5 (¶ 9).
11
Officer Austin asserts that plaintiff “refused decontamination and medical attention,” and that
because plaintiff refused decontamination, Officer Austin gave plaintiff “instructions on how to properly
decontaminate and advised that he could have the water turned on in his in-cell shower to
decontaminate.” Doc. 82-6 at 2 (¶ 7). Mr. Pickett asserts that plaintiff “had access to a shower in his cell
which could have been turned on at his request.” Doc. 82-5 at 2 (¶ 12). Plaintiff “also had access to a
sink and toilet which would have had running water at all times [plaintiff] remained in his cell.” Id.
12
Defendants assert by affidavit that plaintiff grabbed Officer Cawthorn’s arm and tried to gain
control of the restraints. Doc. 22 at 2–3; Doc. 82-9 (¶ 5); Doc. 82-11 at 2.
7
pulling” and “had no choice but to take [his] other hand and grab on to the cuffs while COI
Heather Griffith was still pulling on the tether and CSI Johnnie Cawthorn placed one foot on the
outside door for leverage and while continuing to pull . . . .” Doc. 1-1 at 8; Doc. 32 at 7 (¶ 17).
Plaintiff bent down toward the food pass to free his arm, but “never . . . bec[a]me
threatening or combative nor . . . attempt[ed] any acts of violence . . . .”13 Doc. 88-1 at 17 (¶ 22).
Plaintiff didn’t remove his hand from the food pass because he was trying to “show [his]
compliance by sticking [his] whole arm out of [the] food pass.”14 Doc. 88-1 at 16 (¶ 18).
Plaintiff asserts that Officer Cawthorn then sprayed him with pepper spray three times:
first in plaintiff’s face, second in his chest and neck when he tried to “get out of the line of fire,”
and third, “all over [his] cell” after he moved to the side of the cell door. Doc. 88-1 at 16 (¶
19).15 Plaintiff released the restraints and officers did not spray him again. Doc. 82-9 (¶ 6).
Plaintiff did not take a decontamination shower after officers had sprayed him with the
pepper spray. Plaintiff asserts by affidavit that Officers Cawthorn and Griffith “refused [to
13
Plaintiff, responding to Officer Cawthorn’s affidavit, asserted by affidavit that he never
threatened Officer Cawthorn. Officer Cawthorn’s affidavit testified that he believed plaintiff was trying
to bite his arm when he bent down toward the food pass. Doc. 82-9 (¶ 6).
14
Defendants assert that Officer Griffith ordered plaintiff to remove his hand from the food pass
several times. Doc. 82-10 (¶ 6). Plaintiff’s affidavit doesn’t directly controvert this assertion, but
plaintiff insists that he stuck his arm out of the food pass to show the officers that he was “not resisting
and that [he] was in full compliance.” Doc. 88-1 at 16–17 (¶ 21).
15
Plaintiff’s Amended Motion to Dismiss is inconsistent with plaintiff’s affidavit. The Amended
Motion to Dismiss says that Officer Cawthorn sprayed plaintiff in the face through the food pass. Doc.
48 at 5 (¶ 13). Plaintiff does not reference a second and third spray. Similarly, plaintiff’s “Inmate
Grievance Form” in the Martinez report asserts that, “officers held me at the door by the tether and cuffs
while spraying me in the face with chemical agent . . . .” Doc. 78-3 (¶ 1). Officer Cawthorn’s affidavit
states that he sprayed plaintiff with a one-second burst of pepper spray that hit his shirt. Doc. 82-9 (¶ 6).
Still, the court views the evidence in the light most favorable to plaintiff and assumes that Officer
Cawthorn used pepper spray on plaintiff three times during the March 5 incident, as plaintiff asserts on
summary judgment.
8
provide him with] a decontamination shower” and that they denied him medical help and a
shower.16 (Doc. 88-2 ¶¶ 23, 27).
B. Analysis
1. Qualified Immunity
Defendants argue they are entitled to summary judgment based on qualified immunity.
Specifically, defendants argue, “[p]laintiff’s allegations fail to establish that deploying a short
burst of pepper spray to an inmate [who] is refusing to comply with direct commands, trying to
gain control of restraints, and is attempting to injure correctional officers was a constitutional
violation.” Doc. 82 at 10. Defendants argue plaintiff “also cannot establish that these rights
were clearly established at the time of the conduct.” Id. Plaintiff argues defendants are not
entitled to summary judgment because when plaintiff “faced the door officers immediately began
snatching and yanking the cuffs and tether and began spraying [plaintiff] several times through
the food pass of his cell door with O.C. chemical agent for no other reason than to cause injury
and harm.” Doc. 88 at 29. He argues that “the force in both incidents [was] unnecessary and
done maliciously in bad-faith only to cause injury and not to restore discipline.” Doc. 88 at 30.
Plaintiff also moves for summary judgment. Plaintiff argues he is entitled to summary
judgment because defendants “have not disputed, controverted, or denied the facts of: 1)
[d]enying plaintiff a meal tray; 2) [r]efusing plaintiff a resolution in the incident; 3) holding
plaintiff at the cell door; 4) [a]ttacking plaintiff through his food pass with OC chemical agent; 5)
[l]eaving plaintiff in his cell with chemical agent on him and refusing plaintiff a decontamination
shower; and 6) [r]efusing to [c]ooperate in discovery in [p]roducing material [f]act documents in
16
According to defendants, plaintiff refused a decontamination shower. Doc. 82-9 (¶ 8). And they
say the nurse talked to plaintiff through the door of his cell, but plaintiff “only requested mental health at
this time.” Doc. 82-11 at 3.
9
violation of Fed. R. Civ. P[.] 37.” Doc. 94 at 2. Defendants again assert a qualified immunity
defense. Doc. 96 at 28. They argue plaintiff hasn’t shown that the March 1, 2016 and March 5,
2016 pepper spray incidents were constitutional violations. Rather, “the clearly established law
was to the contrary.” Id. The outcome of both summary judgment motions thus depends on
whether defendants have qualified immunity to plaintiff’s claims based on these incidents.
“[Q]ualified immunity is an affirmative defense to a section 1983 action . . . .” Adkins v.
Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995). “The doctrine of qualified immunity protects
government officials ‘from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). “Qualified immunity balances two important interests—the need to hold
public officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties reasonably.”
Pearson, 555 U.S. at 231.
To establish a § 1983 claim against an individual defendant asserting a qualified
immunity defense, plaintiff must show facts that “make out a violation of a constitutional right,”
and demonstrate that “the right at issue was ‘clearly established’ at the time of defendant’s
alleged misconduct.” Id. at 232 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). A court has
discretion to determine “which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.” Id. at 236. But the
court must grant qualified immunity unless the plaintiff shoulders his “heavy burden” to make
both parts of this showing. Stevenson v. Cordova, 733 F. App’x 939, 942 (10th Cir. 2018).
10
The only claim remaining in this case is plaintiff’s excessive force claim based on two
pepper spray incidents. Plaintiff thus bears the burden of establishing that he had a clearly
established right to be free from prison guards spraying him with pepper spray when he turned
toward his cell door (on March 1) and when he bent down and stuck his arm out the food pass
(on March 5) while officers were handcuffing him for a medical assessment. Plaintiff alleges
prison guards used excessive force during these incidents, thus violating his Eighth Amendment
rights.
An Eighth Amendment excessive force claim has two parts: (1) an objective part that
asks “if the alleged wrongdoing was objectively harmful enough to establish a constitutional
violation,” and (2) a subjective part where the plaintiff must show that prison officials acted with
a “sufficiently culpable state of mind.” Redmond v. Crowther, 882 F.3d 927, 936 (10th Cir.
2018) (quoting Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1289 (10th Cir. 1999)). “The core
inquiry for an Eighth Amendment excessive force claim is whether force was applied in a goodfaith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Ali
v. Duboise, 763 F. App’x 645, 650 (10th Cir. 2019) (citation omitted).
a. Does the summary judgment evidence present a genuine issue of a
constitutional violation?
Defendants argue that, as a matter of law, the force used against plaintiff on March 1,
2016 and March 5, 2016, didn’t rise to the level necessary to support an actionable claim for a
constitutional violation. The court agrees. In Lane v. Carty, No. 09-3153-SAC, 2009 WL
3125469 at *1 (D. Kan. Sept. 28, 2009), an inmate twice refused an officer’s order to remove his
hand from a food pass. The officer sprayed plaintiff with pepper spray through the food pass,
beat on his hand with the bottom of the can, and grabbed plaintiff’s arms to try to pull him
through the food pass. Id. The court concluded that plaintiff had failed to state a claim for
11
excessive force because plaintiff disobeyed two direct orders to remove his hand from the food
pass, and his actions “were clearly contrary to the legitimate penological interest of maintaining
control and discipline in the prison facility.” Id. at *3. The court concluded that,
[p]laintiff’s opinion that the force was excessive, without more, does not establish
that defendant acted maliciously and sadistically to cause harm . . . [a]llegations of
the guard’s striking his hand with a can or a security device, and forcefully
struggling with his hands and arms through the pass to force his compliance do not
. . . rise to the level of cruel and unusual punishment.
Id. At most, plaintiff alleged facts showing “an isolated battery.” Id.
Here, the summary judgment facts establish that plaintiff initiated both the March 1 and
March 5 incidents by signaling a false medical emergency. Plaintiff admits that during the March
1 incident, he turned around while Officer Wallace was handcuffing him and tried to talk to him
about his meal tray. Plaintiff asserts that even though he turned around while Officer Wallace was
handcuffing him, “no threats were made nor were there any attempts at violence or resistance
towards Officer Wallace”. Doc. 88-1 (¶ 7). In the March 5 incident, plaintiff concedes, he turned
around in his cell “to see what the issue was” because officers were tugging on the handcuffs. He
used his free hand to pull on the restraints and free his wrist from the top of the food pass, but
again asserts that he “never . . . bec[a]me threatening or combative nor . . . attempt[ed] any acts of
violence.” Doc. 88-1 at 17 (¶ 22).
These assertions in plaintiff’s affidavit that he wasn’t threatening, violent, or combative
“are entitled to no weight on summary judgment, because they are conclusory, without providing
any factual basis for the conclusions.” Lunow v. City of Oklahoma City, 61 F. App’x 598, 607
(10th Cir. 2003); see also Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995)
(plaintiff’s claim did not survive summary judgment because conclusory allegations were not
supported by the record). Even accepting as true plaintiff’s conclusory statement that he was not
12
combative or attempting violence or resistance, the outcome does not change. Turning around in
his cell while officers were handcuffing him for a medical assessment he had requested is a form
of resistance. Turning around in his cell, pulling on the restraints with his free hand, and sticking
his arm out of the food pass while officers were trying to handcuff him—even if he was trying to
show compliance—also is a form of resistance. Thus, even accepting as true all of plaintiff’s
conclusory assertions that he wasn’t attempting violence or resistance, plaintiff hasn’t identified
a genuine dispute of material fact sufficient to establish a constitutional violation. As in Lane,
officers use of pepper spray on a resisting inmate “does not rise to the level of cruel and unusual
punishment.” Lane, 2009 WL 3125469 at *3.
Similarly, in Grissom v. Roberts, No. 09-3128-SAC, 2009 WL 2601260, at *6 (D. Kan.
Aug. 24, 2009), the court ruled that the plaintiff had failed to state a claim for excessive force
when officers used pepper spray on him because he “had a history of battering or attempting to
batter correctional officers, refused to be restrained, and had thrown a cup of water on
[defendant].” Plaintiff’s actions were “clearly contrary to the legitimate penological interest of
maintaining control and discipline in the prison facility,” and “[u]nder such circumstances, the
use of some physical force such as pepper spray can hardly be considered repugnant to the
conscience of mankind.” Id.
Plaintiff argues that Grissom differs from the summary judgment facts here because he
“was requesting a meal tray that he was entitled to and officers were refusing to feed him, and
there was no violence or threats of violence from [plaintiff] whatsoever.” Doc. 88 at 28. But
plaintiff never acknowledges that the uncontroverted summary judgment facts establish that he
resisted restraint applied for the medical assessment he had requested, which is “contrary to the
legitimate penological interest of maintaining control and discipline in the prison facility.”
13
Grissom, 2009 WL 2601260, at *6. Plaintiff’s conclusory statement that he was not violent is
not dispositive to the court’s analysis.
DeSpain v. Uphoff, 264 F.3d 965 (10th Cir. 2001), is the only case the court has
identified where the Tenth Circuit has found that an officer did not have qualified immunity
when using pepper spray on an inmate. In that case, the Tenth Circuit held that an officer’s
indiscriminate spraying of pepper spray at inmates as a “practical joke” defeated the officer’s
qualified immunity because the act “was not warranted at all.” Id. at 978. And, “[w]here no
legitimate penological purpose can be inferred from a prison employee’s alleged conduct . . . the
conduct itself constitutes sufficient evidence that force was used maliciously and sadistically for
the very purpose of causing harm.” Id. (quoting Giron v. Corr. Corp. of Am., 191 F.3d 1281,
1290 (10th Cir. 1999)).
Here, the summary judgment facts cannot support an inference that officers acted
maliciously and sadistically to cause plaintiff harm. Instead, the uncontroverted facts establish
that officers sprayed plaintiff with pepper spray through his cell door after he turned around to
face the front of his cell (on March 1) and when he turned around, pulled on the restraints, and
stuck his arm out of the food pass (on March 5). Both times, officers had a “legitimate
penological purpose” for using pepper spray because they were trying to restrain plaintiff for a
medical assessment after he signaled a medical emergency. Plaintiff hasn’t established that the
officers’ actions rose to the level of a “practical joke” or that their actions were “not warranted at
all” because the uncontroverted facts establish he resisted handcuffing by turning around in his
cell, pulling on the restraints, and sticking his hand out of the food pass. Even viewing the facts
in the light most favorable to plaintiff, plaintiff has not presented evidence sufficient to support a
triable issue whether officers committed a constitutional violation.
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b. Does the summary judgment evidence present a triable issue of a
clearly established right?
Even if the court assumes a constitutional violation occurred, defendants still deserve
qualified immunity because no precedent clearly establishes plaintiff’s right not to have pepper
spray used against him under these circumstances. “To qualify as clearly established, a
constitutional right must be ‘sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.’” Redmond v. Crowther, 882 F.3d 927, 935
(10th Cir. 2018) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). “And although there
need not be a case precisely on point for a right to be clearly established, ‘existing precedent
must have placed the statutory or constitutional question beyond debate.’” Id. “This high bar
ensures qualified immunity protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” Id. If the law was not clearly established when the incident occurred, the court
should grant summary judgment for the defendant. See Stevenson, 733 F. App’x at 945
(affirming the district court’s grant of summary judgment for defendants because there was no
Supreme Court, Tenth Circuit, or other circuit court case “sufficiently on point” to place the
constitutional question beyond debate).
Here, plaintiff hasn’t cited any precedent placing the constitutional question beyond
debate. Plaintiff generally argues he is entitled to summary judgment under § 1983. Doc. 94 at
9. He asserts that § 1983 has “unique importance, for enforcement is placed in the hands of the
people” and that it “represents a balancing feature in our government structure whereby
‘individual citizens are encouraged to police those who are charged with policing us all.’” Id. at
9–10. Plaintiff cites Whitley v. Albers, 475 U.S. 312 (1986), arguing that defendants “never
established any good faith effort [for] the force used on March 1 and March 5, 2016.” Id. at 11.
But plaintiff misunderstands the burden in a qualified immunity case. Plaintiff must “make out a
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violation of a constitutional right” and show that “the right at issue was ‘clearly established’ at
the time of the defendant’s alleged misconduct.” Pearson, 555 U.S. at 232 (citing Saucier v.
Katz, 533 U.S. 194, 201 (2001)). Plaintiff identifies no case from the Supreme Court, the Tenth
Circuit, or any other Circuit Court recognizing a clearly established right to be free from pepper
spray while he is resisting officers.
DeSpain, 264 F.3d at 978, is the only case the court has located that clearly establishes a
constitutional protection from pepper spray “where no legitimate penological purpose can be
inferred from a prison employee’s alleged conduct.” But here, the uncontroverted facts preclude
its application. They establish that plaintiff signaled false medical emergencies on March 1 and
March 5, 2016. On March 1, plaintiff turned toward Officer Wallace to try to talk to him about
his meal tray. Plaintiff’s conclusory assertion, without factual basis, that he “never made any
attempts at violence or resistance” can’t controvert the fact that he turned around in his cell while
officers were handcuffing him. Likewise, on March 5, plaintiff admits he turned around to face
Officer Cawthorn while Officer Cawthorn was restraining him. Plaintiff concedes he pulled on
the restraints to free his wrist from the food pass, and that he stuck his arm out of the food pass.
Similar to the March 1 incident, plaintiff’s conclusory assertion that he “never . . . bec[a]me
threatening or combative nor . . . attempt[ed] any acts of violence . . . .” doesn’t controvert the
facts that he turned around in his cell, pulled on the restraints, and stuck his arm out of the food
pass.
In both incidents, the uncontroverted facts establish that plaintiff resisted officers before
they used pepper spray on him. The officers thus had a “legitimate penological purpose” for
their actions. DeSpain, 264 F.3d at 978. And plaintiff’s opinion that “the force was excessive,
without more, does not establish that defendant acted maliciously and sadistically to cause harm .
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. . .” Lane, 2009 WL 3125469, at *3; see also Stevenson, 733 F. App’x at 941 (“Plaintiff must
show more than a mere ‘dispute over the reasonableness of a particular use of force or the
existence of arguably superior alternatives.’”) (quoting Whitley v. Albers, 475 U.S. 312, 322
(1986)). In sum, DeSpain is not “sufficiently on point” to the uncontroverted facts here to
establish that plaintiff had a clearly established constitutional right that was violated.
Plaintiff thus fails to overcome defendants’ qualified immunity defense because he didn’t
make out a violation of a clearly established constitutional right. Consequently, defendants are
entitled to qualified immunity as a matter of law.
2. Plaintiff’s Discovery-Based Argument
Plaintiff argues he is entitled to summary judgment because defendants failed to produce
documents plaintiff sought in discovery. Doc. 94 at 7. But plaintiff’s arguments are untimely
and procedurally improper. Plaintiff filed two motions to compel discovery (Docs. 67 & 74).
The court denied both motions without prejudice for failing to comply with Fed. R. Civ. P.
37(a)(1). Doc. 71 and 77; see also D. Kan. Rule 37.2. The court explained to plaintiff how to
comply with Fed. R. Civ. P. 37(a)(1). Id. But plaintiff never filed a renewed motion to compel
that complied with the rule, and he never asked for an extension of time to file such a motion.
Instead, he waited to raise his discovery objections until he filed his Motion for Summary
Judgment (Doc. 93) on June 28, 2019—more than four months after the court had denied his
motion to compel without prejudice.
Under D. Kan. Rule 37.1(b), a motion to compel discovery “must be filed and served
within 30 days of the default or service of the response, answer, or objection that is the subject of
the motion, unless the court extends the time for filing . . . . [o]therwise, the objection to the
default, response, answer, or objection is waived.” Plaintiff waited until he filed his Motion for
17
Summary Judgment to raise his objections, long after the deadline established in D. Kan. Rule
37.1(b) had passed. Plaintiff thus has waived any discovery objection because of untimeliness
and improper procedure. The court denies plaintiff’s Motion for Summary Judgment on this
ground.
3. Plaintiff’s Security Interest
Finally, plaintiff claims he is a “Holder in Due Course and has Security Interest in this
named case.” Doc. 94 at 12. Plaintiff provides several definitions (“security agreement,”
“person,” and “property”) from 28 U.S.C. § 3002, which is from Chapter 176 (Federal Debt
Collection Procedure) of the United States Code. As best the court can discern, plaintiff is
asking for $20,000 in compensatory damages and $5,000 in punitive damages. Since the court
denies plaintiff’s Motion for Summary Judgment, the court also denies plaintiff’s request for
damages.
IV.
Conclusion
For all these reasons, the summary judgment facts viewed in plaintiff’s favor present no
triable issue on plaintiff’s claim for an Eighth Amendment excessive force violation. The court
thus grants defendants’ Motion for Summary Judgment against plaintiff’s Eight Amendment
claim. The summary judgment facts—when viewed in plaintiff’s favor—fail to establish that
defendants violated the Eighth Amendment as a matter of law. Also, the court denies plaintiff’s
Motion for Summary Judgment.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ Motion for
Summary Judgment (Doc. 81) is granted.
IT IS FURTHER ORDERED THAT plaintiff’s Motion for Summary Judgment (Doc.
93) is denied.
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IT IS SO ORDERED.
Dated this 6th day of November, 2019, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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