Miller (ID 35579) v. Billman

Filing 37

MEMORANDUM AND ORDER granting 30 Defendant Larry Billman's Motion for Summary Judgment. The clerk is directed to enter a judgment of dismissal in favor of Defendant. Plaintiff's motion to suppress statements (Doc. 23 ) and Defendant� 39;s motion to stay discovery (Doc. 32 ) are DENIED as moot. Interested Party Kansas Department of Corrections is hereby terminated from the action. Signed by District Judge John W. Broomes on 5/20/2019. Mailed to pro se party James Leon Miller at the El Dorado Correctional Facility (Oswego) by regular mail. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES LEON MILLER,
Plaintiff,
v.

Case No. 18-3100-JWB

LARRY BILLMAN,
Defendant.

MEMORANDUM AND ORDER
This matter is before the court on Defendant’s motion for summary judgment. (Docs. 30,
31.) Plaintiff has not responded to the motion and the time for doing so has now expired. For the
reasons set forth herein, Defendant’s motion for summary judgment (Doc. 30) is GRANTED.
Additionally, pending motions by Defendant to stay discovery (Doc. 32) and by Plaintiff to
suppress statements in a Martinez report (Doc. 23) are DENIED as moot.
I. Facts
The following facts are taken primarily from Defendant’s statement of facts in his
memorandum in support of summary judgment. (Doc. 31.) Defendant has properly supported his
factual statement with citations to the record, including citations to Defendant’s declaration and
the affidavit of registered nurse Barb Addis.1 (Docs. 31-1, 16-4.) Because Plaintiff has failed to
respond to Defendant’s statement, these facts are deemed admitted for purposes of summary

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Defendant previously filed a Martinez report (Doc. 16), which included Addis’s affidavit and several non-sworn
narrative statements. Plaintiff thereafter filed a “motion to suppress statements” (Doc. 23), in which he argued that
non-affidavit narrative statements in the Martinez report should be stricken. (Id. at 2.) Defendant’s statement of facts
cites some of the challenged narrative statements, although only one of Defendant’s asserted facts is actually
dependent upon on a non-sworn narrative statement. (Doc. 31 at 4, Fact #20.) For purposes of summary judgment,
the court has disregarded that single factual assertion and the accompanying narrative statement. Plaintiff’s “motion
to suppress” statements is accordingly denied as moot.

judgment. D. Kan. R. 56.1(b)(2).2 See Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002)
(where no response filed, “[t]he court should accept as true all material facts asserted and properly
supported in the summary judgment motion.”)
The court notes Plaintiff previously filed an affidavit of his own concerning the relevant
incident (Doc. 24) as well as an affidavit by Peggy Beck. (Doc. 28.) The court will not consider
those materials in determining the uncontroverted facts for summary judgment, however, because
to do so would effectively make the court Plaintiff’s advocate, searching the record for any relevant
facts that might contradict Defendant’s statement and support Plaintiff’s claims. See Hall v.
Bellmon, 935 F.3d 1106, 1110 (10th Cir. 1991) (although pro se pleadings are liberally construed,
“we do not believe it is the proper function of the district court to assume the role of advocate for
the pro se litigant.”)
At all relevant times, Plaintiff was an inmate who was being housed at Oswego
Correctional Facility (“OCF”) in Oswego, Kansas, and Defendant was a Correctional Officer I at
OCF.
Plaintiff was seen by Corizon medical staff at OCF on May 6, 2017, regarding complaints
of difficult and painful urination.
On May 7, 2017, Plaintiff approached the officer’s station at OCF and requested that he be
allowed to go to medical for abdominal pain. Plaintiff did not appear to Defendant to be
experiencing a medical emergency. Defendant called the Corizon nurse on duty, Dawn Glass, and
was informed that Plaintiff needed to submit a sick call slip.

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Plaintiff was served with Defendant’s motion, a supporting memorandum, and a notice to pro se litigants regarding
summary judgment, through the court’s electronic case filing system, which sent a document link to Plaintiff’s
institutional email address. Additionally, Defendant’s certificates of service state that copies of these documents were
sent to Plaintiff at OCF via first-class mail. (Docs. 30, 31, 34.)

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On May 8, 2017, Plaintiff again approached the officer’s station and requested that he be
allowed to go to medical. Defendant instructed Plaintiff to return to his bunk and to submit a sick
call slip based on the nurse’s instructions from the day before. Plaintiff did not appear to Defendant
to be experiencing a medical emergency. Plaintiff became visibly angry and started walking away
when he noticed behavioral health provider Peggy Beck walking down the hall. Plaintiff raised
his voice in an attempt to get Beck’s attention. Plaintiff was in an unauthorized area and refused
Defendant’s direct orders to return to his bunk. Plaintiff began to argue with Defendant. Plaintiff
began repeatedly shouting “cuff me up” while moving backwards toward Defendant. Because
Defendant was backed against a wall and Plaintiff was refusing to comply with his orders,
Defendant called for assistance.
Defendant grabbed Plaintiff’s left wrist and attempted to place a handcuff on it. Because
Plaintiff was bouncing and moving around, the handcuff clinched shut on Plaintiff’s wrist.
Plaintiff did not cooperate by giving his other hand and instead began to turn towards Defendant.
When Plaintiff did so, Officer Brown assisted in restraining Plaintiff against the wall. Plaintiff
continued to resist being handcuffed even after officers were attempting to restrain him against the
wall.
Plaintiff did not appear to Defendant to be injured after the handcuffing incident. Plaintiff
was in handcuffs for approximately 20 minutes after being placed “in the hole,” an apparent
reference to segregation or an isolation cell. Plaintiff does not allege actual injuries from the
handcuffs.
Plaintiff was seen by Corizon medical staff on May 8, 2017, regarding complaints of
abdominal pain. Before presenting to the nurse’s visit on May 8, Plaintiff reported he had been in
a verbal confrontation with an officer. Plaintiff did not complain to the nurse of a physical

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confrontation or of excessive use of force. He did not describe any pain in his left shoulder, elbow,
wrist, hand, or fingers during the May 8 nurse’s visit.
It is the policy of the KDOC to medically evaluate inmates after they make use-of-force
complaints against correctional officers. Had Plaintiff complained of a use of force by Defendant
on May 8, he would have been evaluated by Corizon nursing staff.
On May 10, 2017, Plaintiff was evaluated by Corizon nursing staff regarding pain to his
abdomen. He made no complaints of pain in his left shoulder, elbow, wrist, hand, or fingers.
On June 19, 2017, Plaintiff saw the nurse for a complaint of left wrist pain and numbness
in the fingers on his left hand. An x-ray was taken on June 21, 2017, and returned negative findings
for a fracture or dislocation of the left wrist.
II. Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is no genuine
dispute as to any material fact, and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). A fact is “material” when it is essential to the claim, and the issues of fact are
“genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's
favor. Sotunde v. Safeway, Inc., 716 F. App'x 758, 761 (10th Cir. 2017). The movant bears the
initial burden of proof and must show the lack of evidence on an essential element of the claim.
Thom v. Bristol—Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986)). The nonmovant must then bring forth specific facts
showing a genuine issue for trial. Id. The court views all evidence and reasonable inferences in
the light most favorable to the nonmoving party. LifeWise Master Funding v. Telebank, 374 F.3d
917, 927 (10th Cir. 2004).
III. Analysis

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The complaint alleges Defendant used excessive force by applying the handcuffs too
tightly on May 8, 2017, and that he exhibited deliberate indifference to Plaintiff’s medical needs
by denying Plaintiff access to medical staff. (Doc. 1 at 1-3.) Defendant moves for summary
judgment on grounds of qualified immunity, arguing Plaintiff has failed to show the deprivation
of any constitutional right or that the right in question was clearly established.
Qualified immunity protects public officials from damages unless their conduct was
unreasonable in light of clearly established law. Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir.
2008). When the defense of qualified immunity is asserted, a plaintiff must show: 1) that the
defendant’s actions violated a federal constitutional or statutory right; and 2) that the right was
clearly established at the time of the defendant’s conduct. Cillo v. City of Greenwood Vill., 739
F.3d 451, 460 (10th Cir. 2013). For a right to be clearly established, the contours of the right must
be “sufficiently clear that every reasonable official would understand that what he is doing violates
that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citation omitted). This ordinarily
requires “that there is a Supreme Court or Tenth Circuit decision on point, or that the clearly
established weight of authority from other courts has found the law to be as the plaintiff maintains.”
Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017). For the reasons set forth below, the court
concludes Defendant is entitled to summary judgment on the basis of qualified immunity.
A. Excessive force.

The Eighth Amendment prohibits the use of cruel and unusual

punishment. An Eighth Amendment excessive force claim “involves two prongs: (1) an objective
prong that asks if the alleged wrongdoing was objectively harmful enough to establish a
constitutional violation, and (2) a subjective prong under which the plaintiff must show that the
officials acted with a sufficiently culpable state of mind.” Redmond v. Crowther, 882 F.3d 927,
936 (10th Cir. 2018) (internal quotation marks omitted). “An official has a culpable state of mind

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if he uses force ‘maliciously and sadistically for the very purpose of causing harm,’ rather than ‘in
a good faith effort to maintain or restore discipline.’” Id. (quoting Whitley v. Albers, 475 U.S. 312,
320-21 (1986)).
The uncontroverted facts are that at the time of the handcuffing incident, Plaintiff was
arguing with Defendant, shouting, refusing orders, and moving around as Defendant attempted to
place a handcuff on Plaintiff’s left wrist. As Plaintiff was moving, Defendant clinched the
handcuff shut on Plaintiff’s wrist. Due to Plaintiff’s continued resistance to being placed in cuffs,
he had to be restrained by multiple officers. There was no visible injury to Plaintiff’s wrist from
the handcuffing, he did not complain to medical personnel about it at the time of the incident, and
he cites no evidence that the handcuffing resulted in actual injury. Under the circumstances, the
uncontroverted facts will not reasonably support an inference that Defendant applied the handcuffs
to Plaintiff’s wrist for the malicious and sadistic purpose of causing harm rather than to maintain
order. See Stevenson v. Cordoba, 733 F. App’x 939, 945 (10th Cir. 2018) (where plaintiff resisted
application of handcuffs, plaintiff “fails to show that the evidence supports an inference of
malicious and sadistic conduct.”) To the extent Plaintiff claims Defendant violated his Eighth
Amendment rights by not loosening the handcuffs after Plaintiff was restrained, Plaintiff fails to
show that Defendant’s conduct was a clear violation of the Eighth Amendment. Id. at 946 (finding
no Eighth Amendment cases that would have put defendant on notice that a refusal to loosen
handcuffs was cruel and unusual punishment).
B. Denial of access to medical care. “A prison official’s deliberate indifference to an
inmate’s serious medical needs violates the Eighth Amendment.” Broadus v. Corr. Health
Partners, Inc., ___F. App’x ___, 2019 WL 1998386, *4 (10th Cir. May 7, 2019) (quoting Sealock
v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2009)). Such a violation can arise when “prison

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officials prevent an inmate from receiving treatment or deny him access to medical personnel
capable of evaluating the need for treatment.” Id. The test for deliberate indifference is both
objective and subjective. In the context of “gatekeeper” liability (for denying access to care), this
requires a plaintiff to show both “substantial harm” – which includes delay leading to lifelong
handicap, permanent loss, or considerable pain – and a culpable state of mind in which the official
is “aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Id. (quoting Self v. Crum, 439 F.3d 1227, 1231 (10th
Cir. 2006)).
This aspect of Plaintiff’s claim fails for multiple reasons. As an initial matter, the
uncontroverted facts cannot support a finding that Defendant’s conduct amounted to a denial of
access to care. The fact that Defendant directed Plaintiff to fill out a sick call slip, as OCF
procedures apparently called for, does not show a denial of access to care. Neither Plaintiff nor
the record suggests any reason why he could not have completed a sick call slip and thereby
obtained care. Moreover, the uncontroverted facts will not support a finding that Defendant was
aware of a substantial risk of harm to Plaintiff from his actions. Finally, nothing is cited to show
that a reasonable officer in Defendant’s circumstances would have realized that requiring Plaintiff
to fill out a sick call form to obtain medical care, as a nurse had directed, was a violation of the
Eighth Amendment.
IV. Conclusion
IT IS THEREFORE ORDERED this 20th day of May, 2019, that Defendant’s motion
for summary judgment (Doc. 30) is GRANTED. The clerk is directed to enter a judgment of
dismissal in favor of Defendant.

Plaintiff’s motion to suppress statements (Doc. 23) and

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Defendant’s motion to stay discovery (Doc. 32) are DENIED as moot. Interested Party Kansas
Department of Corrections is hereby terminated from the action.
____s/ John W. Broomes___________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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