Bailey (ID 0114543) v. Shawnee County Jail et al

Filing 36

MEMORANDUM AND ORDER granting 31 Motion for Summary Judgment. Plaintiff's case is hereby dismissed in its entirety with prejudice. Signed by Chief District Judge Julie A. Robinson on 4/29/2019. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOCCO D. BAILEY,
Plaintiff,
v.

Case No. 2:16-3201-JAR

BRANSON ANDREWS,
Defendant.

MEMORANDUM & ORDER
Plaintiff Jocco D. Bailey, a Kansas prisoner proceeding pro se, brings claims under 42
U.S.C. § 1983, alleging violations of his Eighth and Fourteenth Amendment rights.1 The Court
previously dismissed Defendants Shawnee County Jail, Joe Rucker, Timothy Phelps, and Brian
Cole.2 Plaintiff also brings his claims against Defendant Branson Andrews (“Defendant”) in
both his individual and official capacity. Before the Court is Defendant’s Motion for Summary
Judgment (Doc. 31). The motion is fully briefed, and the Court is prepared to rule. As explained
fully below, the Court grants Defendant’s motion for summary judgment.
I.

Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is no

genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.3 In
applying this standard, the court views the evidence and all reasonable inferences therefrom in
the light most favorable to the nonmoving party.4 “There is no genuine issue of material fact

1

At all times relevant to this case, Plaintiff was a pretrial detainee.

2

Doc. 24.

3

Fed. R. Civ. P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir. 2008).

4

City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).

unless the evidence, construed in the light most favorable to the nonmoving party, is such that a
reasonable jury could return a verdict for the nonmoving party.”5 A fact is “material” if, under
the applicable substantive law, it is “essential to the proper disposition of the claim.”6 An issue
of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the
non-moving party.”7
The moving party initially must show the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law.8 In attempting to meet this standard, a movant that
does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim;
rather, the movant need simply point out to the court a lack of evidence for the other party on an
essential element of that party’s claim.9
Once the movant has met this initial burden, the burden shifts to the nonmoving party to
“set forth specific facts showing that there is a genuine issue for trial.”10 The nonmoving party
may not simply rest upon its pleadings to satisfy its burden.11 Rather, the nonmoving party must
“set forth specific facts that would be admissible in evidence in the event of trial from which a
rational trier of fact could find for the nonmovant.”12

5

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

6

Wright ex rel. Tr. Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
7

Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
8
Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986)).
9

Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at
671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
10

Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
11

Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).

12
Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at
671); see Kannady, 590 F.3d at 1169.

2

The facts “must be identified by reference to an affidavit, a deposition transcript, or a
specific exhibit incorporated therein.”13 Rule 56(c)(4) provides that opposing affidavits must be
made on personal knowledge and shall set forth such facts as would be admissible in evidence.14
The non-moving party cannot avoid summary judgment by repeating conclusory opinions,
allegations unsupported by specific facts, or speculation.15
Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it
is an important procedure “designed to secure the just, speedy and inexpensive determination of
every action.”16 In responding to a motion for summary judgment, “a party cannot rest on
ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the
mere hope that something will turn up at trial.”17
II.

Uncontroverted Facts
Defendants filed a Martinez Report.18 The Martinez report is an administrative record,

assembled by the prison, that documents the factual investigation of a prisoner’s claim.19
The following facts are uncontroverted, stipulated to in the Pretrial Order, or viewed in the light
most favorable to Plaintiff.
Plaintiff was a pretrial detainee at the Shawnee County Jail (“SNDOC”) from June 2,

13

Adams, 233 F.3d at 1246.

14

Fed. R. Civ. P. 56(c)(4).

15

Id.; Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citation

omitted).
16

Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).

17

Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

18

Doc. 19.

19

The Tenth Circuit endorsed the use of Martinez Reports in Martinez v. Aaron, 570 F.2d 317, 319 (10th
Cir. 1978). The Court considers the Martinez Report as part of the summary judgment record and treats the report
like it would an affidavit. If Plaintiff presents no evidence conflicting with the factual findings contained in the
Martinez Report, the Court may treat those findings as uncontroverted facts. Cf. Northington v. Jackson, 973 F.2d
1518, 1521 (10th Cir. 1992) (explaining that a court cannot accept the factual findings of a Martinez Report if the
prisoner presents conflicting evidence).

3

2016 to October 10, 2016. On or about August 12, 2016, Plaintiff entered a guilty plea, and he
was sentenced on September 7, 2016. Plaintiff’s allegations arise out of a July 22, 2016
altercation between he and another inmate at SNDOC, Clinton Goodwin (“Inmate Goodwin”).
In the weeks after Plaintiff was booked into SNDOC, he was screened on several
occasions for depression and/or suicidal thoughts, and occasionally placed on “Close
Observation” or “Suicide Watch.” On July 22, 2016, Plaintiff was housed in SNDOC’s K
module, which typically houses inmates with special needs or those placed on suicide watch or
close observation. If not on lockdown, inmates in the K module are typically free to be in the
dayroom amongst all the other inmates. Plaintiff was assigned to cell 1K3, which is located on
the lower tier of the module nearest the Officer Workstation where the cell door controls are
located. Each cell in the K module can house up to eight inmates at one time in permanent beds.
On July 22, 2016, there were eight inmates, including Plaintiff, in cell 1K3.
During the relevant time period, Inmate Goodwin was assigned to cell 1K2 in the K
module. Inmate Goodwin served as a Module Worker; he assisted in basic module cleaning
responsibilities and other tasks as assigned by staff. Module Workers are “loosely” assigned by
the Module Officer and are paid in commissary items. On July 22, 2016, Inmate Goodwin was
acting as a Module Worker.
Defendant, who was hired on June 13, 2016 as a Corrections Specialist for SNDOC, was
assigned to the Adult Detention Center. As a new hire, Defendant went through one week of
orientation and a three-week field training program, which involved a demonstration week,
practice week, and test week. He completed approximately 160 hours of training, including an
eight-hour demonstration day in the K module. During training, Defendant learned that inmates
are not allowed to enter another inmate’s cell; this policy is also articulated in SNDOC Policy

4

10-A-11 “Inmate Supervision and Movement.” His last day of training was July 8, 2016.
In addition to Inmate Goodwin and another Module Worker performing cleaning tasks in
the dayroom, on July 22, 2016, there was a Trusty assigned as a Close Observation Aid to
monitor the other inmates within the cells, and two Corrections Specialists—Defendant and C/S
Andrew Towle (“C/S Towle”). A Trusty differs from a Module Worker, as Trusties are
screened, hired, trained, and paid money to perform a specific job within the facility.
On July 22, 2016, at approximately 7:25 a.m., a SNDOC security video shows a couple
of inmates standing at the Officer Workstation, getting ready for lockdown. The Trusty was
walking around in a grey jumpsuit, and two Module Workers were cleaning the Module. C/S
Towle was sitting by cell 1K1 on suicide watch. The video shows that there were dirty socks
outside cell 1K3.
At approximately 7:27:40 a.m., Inmate Goodwin approached the 1K3 cell door and called
out to Defendant “Hey can you open the door to (indiscernible) real quick.”20 Inmate Goodwin
then stated, “Na, I’m being serious. I’m not going to keep picking up the dirty ass socks.”21
Inmate Jordan Seymour testified in an affidavit, included in the Martinez Report, that he heard
Inmate Goodwin ask Defendant “to open up cell 1K3 so he could fuck up whoever threw a pair
of dirty socks on the floor.”22 Defendant believed that Inmate Goodwin was going to return the
socks that were on the floor outside cell 1K3 to one of the inmates in cell 1K3.23 Defendant
stated during the Martinez Report investigation that if Inmate Goodwin had been making threats

20

Doc. 19-17 at “Leftside” 7:27:40–48 a.m.

21

Id.

22

Doc. 19-20 at 1.

23

Doc. 19-17.

5

he would not have opened the door to cell 1K3.24
The video shows that a few seconds after Inmate Goodwin called out to open the cell
door, Defendant unlocked the 1K3 cell door from the Officer Workstation controls, and Inmate
Goodwin opened the door to cell 1K3 and stood in the doorway, leaning into the cell. Inmate
Goodwin then hollered at the inmates in the cell, “I’m only gonna say this one time bitch.
Whoever’s dirty socks these are put them by the fucking (indiscernible).”25 Inmate Goodwin
then turned around and walked away from the cell door as it started to close behind him.
Plaintiff and the other 1K3 cellmates remained inside cell 1K3.
Prior to the cell door closing, Plaintiff approached the door, reopened it, leaned out of the
cell while holding the door open and yelled at Inmate Goodwin, “Hey (indiscernible).”26 Inmate
Goodwin turned and began to enter the janitor’s closet next to cell 1K3. Instead of entering the
janitor’s closet, Inmate Goodwin approached Plaintiff, who remained in the doorway, and the
two began shouting at each other. Inmate Goodwin stated, “No I don’t know who it was,” to
which Plaintiff replied, “I just fucking told you who it was.”27 Defendant interjected, “Hey, walk
back.”28 Inmate Goodwin then stated, “You got a problem,” and Plaintiff responded, “Yea
bitch.”29 Inmate Goodwin grabbed Plaintiff and shoved him to the ground, and the two began
fighting. Defendant reacted by yelling, “Get off of him, get off of him. Break it up now.”30 He

24

Doc. 19-8.

25

Doc. 19-17 at “Leftside” 7:27:58 a.m.

26

Id. at “Leftside” 7:28:10 a.m.

27

Id. at “Leftside” 7:26:16–7:28:18 a.m.

28

Id.

29

Id. at “Leftside” 7:28:23–7:28:25 a.m.

30

Id. at “Leftside” 7:28:28–7:28:50 a.m.

6

walked around the module, pointing his finger as if directing others to take action.31 He also
talked on his radio and yelled at other inmates to shut their cell doors.32 Other Corrections
Specialists quickly entered the area, subdued and handcuffed the inmates, and removed them one
at a time from the module.33
After the altercation, Plaintiff was taken to the Medical Module for a checkup, and then
transferred from the K Module to the Segregation Module. On July 23, 2016, the medical staff
examined Plaintiff during medical rounds in the Segregation Module. Plaintiff reported a bite
mark to his right upper quadrant. The bite appeared to be a human bite, with bruising and
possible open areas. Plaintiff mentioned other injuries on his Inmate Request to Staff Forms, but
never as a request for medical assistance. For example, on a July 31, 2016 request to the Law
Library, Plaintiff stated he had serious bodily harm, including “busted head, slight concussion
and a bite on my stomach.”34 On August 9, 2016, in a request to Records, Plaintiff stated he had
a “swollen knot on the back of my head (after being slammed to the floor . . .) causing me dizzy
spells and the severe right pain in my right shoulder/arm. Persistent pain.”35
To assess Inmate Goodwin’s and Plaintiff’s actions, Sergeant Randles, the Disciplinary
Hearing Officer, conducted both an internal disciplinary investigation and due process hearing.
After reviewing video, Randles determined that Plaintiff appeared to be acting in self-defense to
protect himself from Inmate Goodwin’s punches and biting and dismissed the case against
Plaintiff. Accordingly, Inmate Goodwin was sanctioned with thirty days of disciplinary

31

Id.

32

Id.

33

Id. at “Leftside” 7:29:00 a.m.

34

Doc. 19-25.

35

Id.

7

segregation. Randles explained that finding Plaintiff not guilty of the fight was a “judgment
call.”36 He indicated that Inmate Goodwin appeared to initiate the physical conduct and that
Plaintiff did not appear to throw punches, but rather tried to keep Inmate Goodwin at bay. Prior
to the July 22, 2016 altercation, there were no complaints on record from Plaintiff regarding
Inmate Goodwin. Similarly, there were no complaints from Inmate Goodwin about Plaintiff.
There were also no orders to keep Plaintiff away from any of the inmates in the K Module for his
safety or any other reason prior to the July 22, 2016 altercation.
On August 29, 2016, Plaintiff filed an emergency grievance regarding the altercation
between himself and Inmate Goodwin. On the same day, Defendant formally resigned from his
position, effective immediately, citing “personal issues.”37
III.

Discussion
Plaintiff asserts that he is entitled to relief pursuant to 42 U.S.C. § 1983, alleging that

Defendant failed to protect him in violation of his Eighth and/or Fourteenth Amendment rights.
Defendant argues that summary judgment is warranted because there are no disputed issues of
material fact and Plaintiff cannot demonstrate that Defendant violated his constitutional rights.
With respect to the claims against Defendant in his individual capacity, Defendant also asserts
that he is entitled to qualified immunity.
For individual capacity claims, qualified immunity provides government officials
breathing room to make reasonable but mistaken judgments about open legal questions.38 “The
doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does
not violate clearly established . . . constitutional rights of which a reasonable person would have

36

Doc. 19-8 at 4.

37

Doc. 19-31.

38

Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).

8

known.’”39 To this end, qualified immunity protects officials from liability unless the plaintiff
shows “(1) that the official violated a statutory or constitutional right, and (2) that the right
violated was ‘clearly established’ at the time of the challenged conduct.”40 It is within the
Court’s discretion which of the two prongs of the analysis to address first.41 Only if the plaintiff
clears these hurdles does the burden shift back to the defendant to make the traditional showing
that there are no genuine issues of material fact and that he is entitled to judgment as a matter of
law.42
In determining whether the plaintiff has demonstrated a violation of his constitutional or
statutory rights and that the right was clearly established at the time, the Court must view the
facts and draw reasonable inferences in the light most favorable to the party opposing summary
judgment.43 In Scott v. Harris, the United States Supreme Court held that “this usually means
adopting . . . the plaintiff’s version of the facts,” unless that version “is so utterly discredited by
the record that no reasonable jury could have believed him.”44 Moreover, the Tenth Circuit has
held that “because at summary judgment we are beyond the pleading phase of the litigation, a
plaintiff’s version of the facts must find support in the record.”45 In that sense, the Court does
not discard the Rule 56 process but relies upon facts supported by the record, while viewing
those facts and reasonable inferences therefrom in the light most favorable to Plaintiff.

39
Hernandez v. Mesa, 137 S. Ct. 2003, 2007 (2017) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)
(per curium)).
40

al-Kidd, 563 U.S. at 735 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

41

Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

42

Rojas v. Anderson, 727 F.3d 1003, 1003–04 (10th Cir. 2014).

43

Scott v. Harris, 550 U.S. 372, 376–80 (2007).

44

Id.

45
Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009) (quoting York v. City of Las Cruces,
523 F.3d 1205, 1210 (10th Cir. 2008)).

9

A.

Violation of a Constitutional Right

Defendant is entitled to summary judgment on both the official and individual capacity
claims because Plaintiff cannot show that he violated a constitutionally protected right.
1.

Failure to Protect Under the Eighth Amendment

Plaintiff cannot bring his failure to protect claims under the Eighth Amendment. The
Eighth Amendment has historically been interpreted to protect those convicted of crimes.46 It is
uncontroverted that Plaintiff was a pretrial detainee at the times relevant to this litigation.
The rights of pretrial detainees, “those persons who have been
charged with a crime but who have not yet been tried on the
charge,” are not controlled by the cruel and unusual punishment
clause of the Eighth Amendment because the Fifth and Fourteenth
Amendments prohibit punishment “prior to an adjudication of guilt
in accordance with due process of law.”47
Therefore, Plaintiff’s status of a pretrial detainee precludes him from bringing his claims under
the Eighth Amendment,48 and summary judgment is granted in favor of Defendant on Plaintiff’s
Eighth Amendment claims.
2.

Failure to Protect Under the Fourteenth Amendment

Plaintiff additionally raises Fourteenth Amendment Due Process claims based on
Defendant’s alleged failure to protect in deliberate indifference. The Due Process Clause of the
Fourteenth Amendment provides that “no State shall . . . deprive any person of life, liberty, or
property without due process of law.”49 In the Tenth Circuit, a pretrial detainee’s Due Process

46

Ingraham v. Wright, 430 U.S. 651, 664–67 (1977); see McClendon v. City of Albuquerque, 79 F.3d 1014,
1022 (10th Cir. 1996) (noting that pretrial detainees are protected by the Due Process Clause, and convicted persons
are protected by the Eighth Amendment).
47

Berry v. City of Muskogee, 900 F.2d 1489, 1493 (10th Cir. 1990) (quoting Bell v. Wolfish, 441 U.S. 520,
535 (1979)).
48

See Youngberg v. Romeo, 457 U.S. 307, 311–17, 324 (1982) (“We conclude that the jury was
erroneously instructed on the assumption that the proper standard of liability was that of the Eighth Amendment.”).
49

U.S. Const. amend. XIV, § 1.

10

rights “parallel that of an inmate’s Eighth Amendment rights[.]”50 “Conduct that violates the
clearly established rights of convicts necessarily violates the clearly established rights of pretrial
detainees.”51 Thus, while Plaintiff’s failure protect claims arise under the Fourteenth
Amendment, the Eighth Amendment provides the standard for analyzing the claims.52
A prisoner has a constitutional right under the Eighth Amendment to humane conditions
of confinement, which requires prison officials to provide “adequate food, clothing, shelter, and
medical care;” and to “take reasonable measures to guarantee the safety of the inmates.”53 “In
particular, inmates have a ‘constitutional right to be reasonably protected from constant threats of
violence and sexual assaults from other inmates.’”54 To prevail on a failure to protect claim, an
inmate must show a prison official’s deliberate indifference to “conditions posing a substantial
risk of serious harm.”55 Thus, the analysis contains both an objective and a subjective
component.56 First, “[t]he objective component requires conditions sufficiently serious so as to
‘deprive inmates of the minimal civilized measure of life’s necessities.’”57 Second, the
subjective component requires a defendant prison official to “have a culpable state of mind, that
he or she acts or fails to act with deliberate indifference to inmate health and safety.”58

50

Glover v. Gartman, 899 F. Supp. 2d 1115, 1133 (D. N.M. 2012) (citing Lopez v. LeMaster, 172 F.3d 756,
759 n.2 (10th Cir. 1999)).
51

Blackmon v. Sutton, 734 F.3d 1237, 1241 (10th Cir. 2013).

52
Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th Cir. 1999) (citing Bell v. Wolfish, 441 U.S. 520, 535 n.6
(1979) and Hare v. City of Corinth, 74 F.3d 633, 643 (5th Cir. 1996)).
53

Farmer v. Brennan, 511 U.S. 825, 832–33 (1994) (internal quotations omitted) (citation omitted).

54

Savage v. Fallin, 663 F. App’x 588, 592 (10th Cir. 2016) (quoting Ramos v. Lamm, 639 F.2d 559, 572
(10th Cir. 1980)).
55

Farmer, 511 U.S. at 834–35 (citation omitted).

56

Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001).

57

Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

58

Id. (citing Wilson v. Seiter, 501 U.S. 294, 297, 303 (1991)).

11

i.

Objective Component: Substantial Risk of Serious Harm

To satisfy the standard for the objective component of a failure to protect claim, the
plaintiff bears the burden of “produc[ing] objective evidence that the deprivation at issue was in
fact ‘sufficiently serious.’”59 The objective component requires an extreme deprivation,60 and
“[o]nly those deprivations denying the minimal civilized measure of life’s necessities are
sufficiently grave to form the basis of an Eighth Amendment violation.”61 Therefore, the
plaintiff “must show that conditions were more than uncomfortable, and instead rose to the level
of ‘conditions posing a substantial risk of serious harm’ to inmate health or safety.”62
According to Plaintiff, the serious risk arose when Defendant unlocked the 1K3 cell door,
which allowed Inmate Goodwin to enter cell 1K3, start shouting about the socks outside the door
and allegedly make threats. Plaintiff argues that after this encounter, Defendant had a duty to
intervene to protect Plaintiff from a substantial risk of serious harm, and that Defendant
“disregarded the risk by failing to act reasonably to avoid it.”63 Defendant responds that the
Eighth Amendment’s duty to protect is not triggered by a fight that Plaintiff willingly
encountered and could have prevented.64
The undisputed facts show that Plaintiff engaged in a voluntary encounter with Inmate
Goodwin, resulting in the altercation. Prior to the altercation, Defendant unlocked the door to
cell 1K3 at Inmate Goodwin’s request. The altercation between Plaintiff and Inmate Goodwin,
however, did not occur until after Inmate Goodwin shouted his grievances about the socks

59

Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Farmer, 511 U.S. at 834).

60

Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citations omitted).

61

Covalt v. Inmate Servs. Corp., 658 F. App’x 367, 369 (10th Cir. 2016) (quoting Wilson, 501 U.S. at 298).

62

DeSpain v. Uphoft, 264 F.3d 965, 973 (10th Cir. 2001) (quoting Farmer, 511 U.S. at 834).

63

Doc. 34 at 9.

64

Doc. 32 at 11.

12

outside the cell, let the cell door start to close, and began walking away from the cell. Prior to
the cell door closing, Plaintiff reopened it and began yelling at Goodwin. After a brief, albeit
heated exchange, Inmate Goodwin grabbed Plaintiff and shoved him to the ground. Defendant
subsequently responded to the altercation. Viewing these facts in a light most favorable to
Plaintiff, a reasonable jury could not infer that Plaintiff faced a substantial risk of serious harm
when Defendant unlocked the cell door to 1K3. It is clear that the risk arose from Plaintiff
stepping outside and engaging with Inmate Goodwin, not from Defendant unlocking the cell
door. Accordingly, summary judgment in favor of Defendant is warranted because Plaintiff
cannot show that the conditions created by Defendant posed a substantial risk of serious harm.
ii.

Subjective Component: Deliberate Indifference Toward Risk of
Serious Harm

Even if a reasonable jury could infer the existence of a substantial risk of serious harm,
Plaintiff does not point to evidence on the record that establishes Defendant acted with deliberate
indifference. Whether the standard for deliberate indifference is satisfied requires an “inquiry
into a prison official’s state of mind.”65 To satisfy the subjective component of deliberate
indifference, a plaintiff must show (1) that the prison official knew “of facts from which the
inference could be drawn that a substantial risk of serious harm exists,” and (2) that the prison
official drew the inference.66 A prison official’s failure “to alleviate a significant risk that he
should have perceived but did not,” is not enough to satisfy this requirement.67 A plaintiff may
prove actual knowledge of a substantial risk “in the usual ways,” and “a factfinder may infer

65

Farmer, 511 U.S. at 838 (quoting Wilson, 501 U.S at 299).

66

Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003) (quoting Craig v. Eberly, 164 F.3d 490, 495

67

Farmer, 511 U.S. at 837–38.

(1998)).

13

actual knowledge through circumstantial evidence, or ‘may conclude a prison official knew of a
substantial risk from the very fact that the risk was obvious.’”68
Plaintiff alleges that Defendant was deliberately indifferent. First, Plaintiff asserts that
Inmate Goodwin’s alleged threats of “fucking someone up” because of the dirty socks outside
cell 1K3 allows a jury to infer that Defendant knew of a substantial risk of harm. While the
entirety of Inmate Goodwin’s comments regarding the socks is unclear from the SNDOC
surveillance video, even viewing the facts in a light most favorable to Plaintiff, these comments
are not sufficient to lead to an inference of a substantial risk of harm at Plaintiff because the
comments are not specific or obvious threats directed to Plaintiff.69 Moreover, “threats between
inmates are common and do not, under all circumstances, serve to impute actual knowledge of a
substantial risk of harm.”70 Here, the circumstances are not so severe as to impute actual
knowledge of a substantial risk of harm.
Plaintiff argues that the circumstantial evidence demonstrates that Defendant must have
known about the substantial and obvious risk of danger to Plaintiff. This contention, however, is
contrary to the record. The undisputed facts from the surveillance video show that during Inmate
Goodwin’s initial verbal exchange with the inmates in cell 1K3, there was no physical violence,
he did not direct his words to a specific individual, and he walked away and let the door begin to

68

Rider v. Werholtz, 548 F. Supp. 2d 1188, 1196 (D. Kan. 2008) (quoting Farmer, 511 U.S. at 842).

69

See Brown v. Dorneker, No. CIV.A.06-3245-CM, 2008 WL 3334025, at *5 (D. Kan. Aug. 8, 2008)
(“Without citing to the record, plaintiff alleges that when defendant Swift told Mr. Jackson to go back to cell 5, Mr.
Jackson told her that someone will get ‘fucked up.’ Even if true, this exchange does not raise to the level of an
obvious and specific threat.”).
70

Ruiz v. Clifton, No. 13-3045, 2014 WL 5321092, at *4 (D. Kan. Oct. 16, 2014) (citing Prater v. Dahm,
89 F.3d 538, 541–42 (8th Cir. 1996)). But cf. Young v. Garfield Cty., No. CIV-06-146-D, 2008 WL 4525469, at *2
(W.D. Okla. 2008), appeal dismissed and remanded, 329 F. App’x 846 (10th Cir. 2009) (finding that a reasonable
jury could infer that the defendants knew the plaintiff was at risk of retribution from his attacker when the plaintiff
had disclosed in a grievance that his attacker was attempting to extort money in exchange for the addresses of his
family and friends and that he viewed his attacker’s demand as a “veiled threat” to not discuss the matter with
anyone).

14

close. Defendant’s belief that Inmate Goodwin wanted to return the dirty socks to an inmate in
cell 1K3 does not lead to an inference that a fight would occur, even if an inference is drawn that
Inmate Goodwin also wanted to confront the inmates about leaving dirty socks outside the cell.
The undisputed facts show that Plaintiff and Inmate Goodwin had no history of hostility toward
each other, as neither had complained about the other nor had any past altercations, and both
were permitted to be free in the dayroom with the other inmates if not on lockdown.71 While
Plaintiff contends he exited his cell to vocalize his concerns about what he perceived as threats
from Inmate Goodwin, this is unsupported by the record as the surveillance video shows Plaintiff
confronting Inmate Goodwin, not attempting to ask Defendant for help or protection. Moreover,
the physical violence did not occur until after Plaintiff prevented the 1K3 cell door from closing,
stepped outside the cell, and engaged Inmate Goodwin.
Plaintiff also asserts that Defendant was deliberately indifferent because the cell doors
did not automatically lock, meaning he was not out of danger from Inmate Goodwin when the
cell door closed.72 This has no bearing on Defendant’s deliberate indifference, however, because
this information is not found in the record,73 and moreover, the uncontroverted facts show that
Plaintiff prevented the door from shutting when he exited his cell and confronted Inmate
Goodwin.
Accordingly, a reasonable jury could not infer that Defendant knew that Inmate Goodwin
posed a substantial risk of harm to Plaintiff. Defendant is thus also entitled to summary

71

See Ruiz, 2014 WL 5321092 at *4 (finding that the circumstances did not support an inference that the
defendant was “subjectively aware that a verbal altercation . . . would later lead to a physical fight” when the
plaintiff and his attacker had no history of animosity with each other, the defendant did not have a violent history at
the facility, and the plaintiff did not require protective custody).
72

Doc. 34 at 11.

73

Similarly, Plaintiff’s contention that the mop closet is to remain locked is missing from the record.

15

judgment because Plaintiff cannot establish the subjective component of the alleged violation of
his constitutional rights.
B.

Qualified Immunity on Individual Capacity Claims

A previously discussed, even viewing the facts in a light most favorable to Plaintiff,
Plaintiff fails to establish that Defendant violated a constitutional right. With respect to the
individual capacity claims, the Court grants summary judgment in favor of Defendant based on
Plaintiff’s inability to establish the first prong needed to avoid qualified immunity—Defendant’s
violation of a constitutional right. Defendant asserts that qualified immunity is also appropriate
because Plaintiff cannot show Defendant violated a right that was clearly established at the time
of the alleged violation.
A constitutional right is clearly established for the purposes of qualified immunity if “its
contours [are] sufficiently clear that a reasonable official would understand that what he is doing
violates that right.”74 Generally, for a right to be clearly established, “there must be a Supreme
Court or Tenth Circuit decision on point, or the clearly established weight of authority from other
courts must have found the law to be as the plaintiff maintains.”75
Plaintiff points the Court to Hostetler v. Green, a Tenth Circuit decision, to show that
Defendant violated clearly established law.76 However, the Court finds that the facts in Hostetler
differ greatly from the present case, and thus, Hostetler cannot support Plaintiff’s assertion that
Defendant violated clearly established law. In Hostetler, a female inmate alleged that a jailer
acted with deliberate indifference to her safety by failing to protect her from sexual assault by

74

Hope v. Pelzer, 536 U.S. 730, 739 (2002).

75

Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010) (quoting Zia Tr. Co. ex rel. Causey v. Montoya, 597
F.3d 1150, 1155 (10th Cir. 2010)).
76

Hostetler v. Green, 323 F. App’x 653 (10th Cir. 2009).

16

another inmate.77 The plaintiff alleged the jailer allowed a male inmate into the her cell in
violation of a policy not allowing male inmates in female cells to prevent sexual assault, and the
male inmate subsequently raped her.78 The jailer told the male inmate several times to leave the
cell, but he failed to comply.79 In response, the jailer shut and locked the plaintiff’s cell door,
and the plaintiff and the male inmate remained inside the locked cell for up to ten minutes.80
Based on these facts, the Tenth Circuit concluded that the jailer’s violation of the policy, his
awareness of its rational, and his knowledge that he violated the policy supported an inference
that he was aware of the plaintiff’s increased risk of sexual assault when he violated the policy.81
The court explained that the jailer’s action violated clearly established law as “[t]he Supreme
Court and the Tenth Circuit have repeatedly and unequivocally established an inmate’s Eighth
Amendment right to be protected from substantial risks of sexual assault by fellow prisoners.”82
Plaintiff asserts that Defendant violated SNDOC Policy 10-A-11, which prohibits
inmates from entering another inmate’s assigned cell. As the Tenth Circuit explained in
Hostetler, “a failure to adhere to administrative regulations does not equate to a constitutional
violation.”83 Unlike in Hostetler, the record here does not suggest that Policy 10-A-11 was
designed to prevent what led to the altercation between Plaintiff and Inmate Goodwin, namely,
an inmate preventing their cell door from closing, exiting their cell, and then engaging in a
conversation that escalated into a physical altercation with another inmate who had previously

77

Id. at 654.

78

Id. at 655.

79

Id.

80

Id.

81

Id. at 658.

82

Id. at 659 (alteration in original) (quoting Howard v. Waide, 534 F.3d 1227, 1242 (10th Cir. 2008)).

83

Id. at 657–58 (quoting Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir. 1993)).

17

entered the cell. Accordingly, Plaintiff fails to show that Defendant violated a clearly established
right at the time of the alleged violation, and Defendant is entitled to summary judgment as to the
individual capacity claims based on qualified immunity.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for
Summary Judgment (Doc. 31) is granted. Plaintiff’s case is hereby dismissed in its entirety with
prejudice.
IT IS SO ORDERED.
Dated: April 29, 2019
s/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

18