Conner v. Kirkegard et al

Filing 82

ORDER ADOPTING 77 FINDINGS AND RECOMMENDATIONS; granting 64 Motion for Summary Judgment; granting 66 Motion for Summary Judgment. Any appeal of this decision would not be taken in good faith. Signed by Judge Dana L. Christensen on 2/12/2018. Mailed to Conner (TAG)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

FEB 12 2018
Clerk, U.S Courts

District Of Montana
Missoula Division

CV 15-81-H-DLC-JTJ

ANDREW DAVID CONNER,
Plaintiff,

ORDER

vs.
WARDEN LEROY KIRKEGARD, et
al.,
Defendants.

United States Magistrate Judge John T. Johnston entered his Findings and
Recommendations in this case on October 16, 2017, recommending Plaintiff
Andrew David Conner's ("Conner") Complaint be dismissed because there is no
genuine dispute of material fact and the Inner Perimeter Security ("IPS")
Defendants did not use excessive force on January 30, 2015. (Doc. 77.) Judge
Johnston further recommended Defendants' Motions for Summary Judgment be
granted. (Docs. 64, 66.) Conner timely filed an objection to the Findings and
Recommendations. (Doc. 80.) Thus, Conner is entitled to a de novo review of
those findings and recommendations to which he has "properly objected to." Fed.
R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(l)(C).

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The portions of the findings and recommendations not specifically
objected to will be reviewed for clear error. See McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Arn,

474 U.S. 140, 149 (1985). Clear error exists ifthe Court is left with a "definite and
firm conviction that a mistake has been committed." McMillan v. United States,
112 F.3d 1040, 1044 (9th Cir. 1997) (citations omitted).
"A party makes a proper objection by identifying the parts of the
magistrate's disposition that the party finds objectionable and presenting legal
argument and supporting authority, such that the district court is able to identify
the issues and the reasons supporting a contrary result." Montana Shooting Sports
Ass 'n v. Holder, 2010 WL 4102940, at *2 (D. Mont. Oct. 18, 2010). "It is not

sufficient for the objecting party to merely restate arguments made before the
magistrate or to incorporate those arguments by reference." Id. Congress created
magistrate judges to provide district judges "additional assistance in dealing with a
caseload that was increasing far more rapidly than the number of judgeships."
Thomas, 474 U.S. at 153.

There is no benefit to the judiciary "if the district court[] is required to
review the entire matter de novo because the objecting party merely repeats the
arguments rejected by the magistrate. In such situations, this Court follows other
courts that have overruled the objections without analysis." Hagberg v. Astrue,
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2009 WL 3386595, at *1 (D. Mont. Oct. 14, 2009). In short, an objection to a
magistrate's findings and recommendations "is not a vehicle for the losing party to
relitigate its case." Id.
The Court finds that Conner's objections generally attempt to rehash
arguments already raised in Conner's Amended Complaint. However, the Court
will analyze Conner's remaining objections under a de novo review. For the
reasons explained below, the Court adopts Judge Johnston's Findings and
Recommendations in full.

PROCEDURAL BACKGROUND
Conner is an inmate at the Montana State Prison ("MSP"). Conner filed a
Complaint pursuant to 42 U.S.C. § 1983 against Defendants Leroy Kirkegard,
Thomas Wood, Robert Shaw, Toni Barclay, Dawn Phillpott, Daniel Fossness,
Garrett Kent, Joshua Sweeney, Mitchell Cales, and Samuel Short alleging
Defendants used excessive force when they utilized OC spray during a cell
extraction even though Conner has asthma. (Doc. 2.) Defendants filed motions for
summary judgment arguing there are no genuine issues of material fact regarding
Conner's allegations and that they are entitled to judgment as a matter of law.
(Docs. 64, 66.) On August 4, 2017, the Court notified Conner of the requirements
for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil
Procedure. (Docs. 69; 70.) Conner responded on September 21, 2017, arguing
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that Defendants violated his constitutional rights by utilizing OC spray during his
cell extraction. (Doc. 73.) Judge Johnston entered Findings and
Recommendations on October 16, 2017, recommending that Defendants' Motions
for Summary Judgment be granted. (Doc. 77.)
Conner filed objections to Judge Johnston's Findings and
Recommendations on November 6, 2017. (Doc. 80.) Conner submitted nine
objections, arguing that: (1) his mental health issues were not acknowledged; (2) it
was deliberately indifferent for the IPS Defendants to apply OC spray to him due
to his mental illness; (3) the IPS Defendants threatened to harm him on the way to
locked housing; (4) he is unknowledgeable of the law and therefore cannot
properly raise triable issues; (5) he has asked for counsel on several occasions due
to being unknowledgeable of the law; (6) he asserts he complied with the IPS
Defendants' orders to "cuff up" before they pepper sprayed him; (7) Defendants
had access to his mental and medical files at any given time; (8) the IPS
Defendants would have had knowledge of his asthma had IPS followed policy and
procedure and called medical to clear him; and (9) MSP Registered Nurse Bruce
Squires admitted he did not recall any call to clear him for use of OC spray. (Id.)
Defendants filed a Reply to Conner's objections, arguing that: (1) Conner
did not comply with the Federal Rules of Criminal Procedure and the District of
Montana Local Rules in filing his objections because he did not cite to the
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magistrate's findings and recommendations to which he objects, did not arrange to
transcribe any of the record, did not identify the record evidence he relies on to
contradict each finding to which he objects, and did not set forth the authority he
relies on to contradict each recommendation; and (2) Conner's objections are
without merit as Conner has cited no evidence contradicting Judge Johnston's legal
findings. (Doc. 81.)

LEGAL STANDARD
Summary judgment is appropriate when "the movant shows 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). Under summary judgment, "[t]he moving
party initially bears the burden of proving the absence of a genuine issue of
material fact." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Summary judgment
should be entered, "after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the burden
of proof at trial." Celotex, 477 U.S. at 322. If the party moving for summary
judgment meets its initial responsibility, the burden shifts to the nonmovant to
demonstrate the existence of a factual dispute, that the fact in contention is
material, and that the dispute is genuine. Id. at 323-24.

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To demonstrate the existence of a factual dispute, the opposing party may
not rely upon the allegations or denials of its pleadings, but is required to tender
evidence of specific facts in the form of affidavits, and/or admissible discovery
material, in support of its contention that the dispute exists. See Fed. R. Civ. P.
56(c)(l); Matsushita Elec. Jndus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 n.11 (1986). The nonmoving party need not establish a material issue of fact
conclusively in its favor. First Nat'! Bank ofAriz. v. Cities Serv. Co., 391 U.S.
253, 288 (1968). However, the nonmoving party must "come forward with
specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S.
at 586 (internal citation omitted); accord Fed. R. Civ. P. 56(c)(l). "In evaluating
the evidence to determine whether there is a genuine issue of fact," the court draws
"all inferences supported by the evidence in favor of the non-moving party." Walls
v. Cent. Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). Finally, to

demonstrate a genuine issue, the opposing party "must do more than simply show
that there is some metaphysical doubt as to the material facts." Matsushita, 475
U.S. at 586 (citations omitted).
A party who wishes to object to the magistrate judge's findings and
recommendations may serve and file specific written objections. Fed. R. Crim. P
59(b)(2). "Unless the district judge directs otherwise, the objecting party must
promptly arrange for transcribing the record, or whatever portions of it the parties
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agree to or the magistrate judge considers sufficient. Failure to object in
accordance with this rule waives a party's right to review." Id. The District of
Montana Local Rule 59.2(a) additionally provides that an objection to a magistrate
judge's findings and recommendations must itemize:
( 1) each factual finding of the magistrate judge to which objection is
made, identifying the evidence in the record the party relies on to
contradict that finding; and (2) each recommendation of the
magistrate judge to which objection is made, setting forth the
authority the party relies on to contradict that recommendation.

DISCUSSION
I.

Factual Summations
Conner has been an inmate at MSP since December 11, 2014. On

January 30, 2015, while preparing for the 1:00 p.m. count, Defendant Phillpott
heard Conner kicking his cell door and yelling. Conner told Phillpott he wanted
his property. Phillpott told Conner she was unable to get Conner's property
because the staff was preparing for count. Phillpott told Conner to use his milk
carton until she could provide him with a cup after count was complete. Conner
continued to kick and punch his cell door.
Phillpott then ordered Conner to "cuff up" three times. Conner did not
comply with Phillpott' s orders. Phillpott called command post and requested the
IPS team conduct a cell extraction because of Conner's aggressive behavior and
failure to comply. Lieutenant Larry Lakel determined force was necessary to
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prevent injury to Conner and his cellmate, to maintain security, and because
Conner had refused several orders. Lakel called the IPS team and ordered them to
conduct a cell extraction. Lakel also called the infirmary and received medical
clearance for the use of OC spray during the cell extraction. Lakel then informed
the IPS team that Conner and his cellmate were medically cleared for OC spray.
Conner proceeded to block his cell door with mattresses, began flooding
his cell, made toilet paper wads and stuck them to the window, and threw butter
and other canteen items around his cell. When the IPS team initially arrived,
Conner and his cellmate covered their faces and bodies with clothing to obstruct a
taser or OC spray. Defendant Sweeney ordered Conner and his cellmate to "cuff
up." Neither inmate complied with Sweeney's order. The IPS team then left
briefly to put on their protective gear and prepare for a cell extraction. At
approximately 1: 10 p.m., the IPS team entered Conner's cell block to perform an
extraction. When the IPS team approached Conner's cell, Conner yelled, "Fuck
you." Sweeney again ordered both inmates to "cuff up." Conner said, "You want
us to cuff up?" then shook his fist and again yelled, "Fuck you."
The MSP Use of Force Procedure defines the "Use of Force Control
Continuum" as "the application of progressive levels of force to gain control of an
inmate, starting with passive counter measures up to and including deadly force.
Use of force will be limited to the amount to force necessary to control the
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situation." Attached to MSP Procedure 3.1.8 is the DOC Control Continuum
("Continuum"), which outlines the continuum of force in order of level of force.
The Continuum specifically states "[ s]taff may enter the continuum at any level
that represents a reasonable response to the perceived threat posed by the subject."
In addition, MSP Procedure No. 3.l.8A provides that OC spray may be used to
"assist in controlling an acting out inmate."
"Empty-handed" techniques were unavailable to the IPS Defendants
because they had to conduct a cell extraction where two inmates were in the cell.
Sweeney moved to the next available step in the Continuum by administering OC
spray. Once Conner's cell slot was cleared, Sweeney sprayed four short bursts of
OC into the cell: Sweeney sprayed one short burst at Conner, one short burst at his
cellmate, and two short bursts in the air. Sweeney then ordered both inmates to lay
face down on the ground. Both inmates complied with Sweeney's order. The IPS
team then entered Conner's cell with little force and restrained both inmates. Once
Conner was secured, Defendants Short and Kent removed him from his cell.
Conner was escorted to the showers to rinse the OC spray off his face and
body. Immediately after being decontaminated in the shower, Conner was
assessed by MSP Registered Nurse Bruce Squires. Conner was treated by Squires
less than four minutes after Sweeney sprayed the first burst of OC into Conner's
cell. Conner complained of an asthma attack, so Squires grabbed an albuterol
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inhaler and administered two puffs to Conner. Conner himself indicated the
inhaler stopped his alleged asthma attack. Squires noted Conner's discomfort was
relatively mild. After observing no serious medical issues, Squires cleared Conner
to go to locked housing. Once Conner was cleared by medical staff, Short and
Kent escorted Conner to locked housing.
Neither Phillpott nor any of the IPS Defendants were aware Conner had
asthma until after the extraction took place. Pursuant to the Health Insurance
Portability and Accountability Act ("HIPPA"), MSP staff who are not employed
by MSP medical are not allowed to view or learn about an inmate's medical
history unless the inmate tells them that information himself. Conner never
informed Phillpott nor any of the IPS Defendants that he had asthma until after
Sweeney administered the OC spray.

II.

Conner's Objections
a.

OC Spray Use and Mental Health

Judge Johnston found that Conner failed to show the IPS Defendants' use
of OC spray during the cell extraction amounted to excessive force. In order to
succeed on a claim for the use of excessive force in violation of the Eighth
Amendment, Conner must show the Defendants applied force "maliciously and
sadistically to cause harm," rather than in a good-faith effort to maintain or restore
discipline. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). Not every malevolent
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touch by a prison guard gives rise to a federal cause of action; the Eighth
Amendment's prohibition of cruel and unusual punishment necessarily excludes
from constitutional recognition de minimis uses of physical force. Id. at 9-10.
Guards may use force only in proportion to the need for it in each situation. Spain
v. Procunier, 600 F.2d 189, 195 (9th Cir. 1979).

The Court agrees with Judge Johnston's conclusion that Conner has failed
to show the IPS Defendants applied force "maliciously and sadistically to cause
harm," rather than in a good-faith effort to maintain or restore discipline. (Doc. 77
at 14-15.) The Defendants presented undisputed evidence force was required
because Conner and his cellmate refused their orders, flooded their cell, and placed
items in front of their cell door. (Id. at 15.) The use of OC spray was a minimal
use of force in the Continuum. (Id.) Additionally, Conner has failed to produce
evidence with his objections demonstrating that any Defendant was deliberately
indifferent to a substantial risk of harm to his health or safety as alleged. Based
upon the Defendants' undisputed evidence and the video of the incident, Judge
Johnston correctly concluded the IPS Defendants' use of OC spray on Conner was
appropriate. (Doc. 77 at 15-16.)
Judge Johnston also properly addressed Conner's mental health issues in
his legal findings. Conner previously raised his mental health as an issue in his
Amended Complaint and Motion for Order of Examination. (Docs. 9-2 at 1; 44 at
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1.) However, Judge Johnston correctly found that the IPS Defendants' use ofOC
spray on Conner was an appropriate minimal use of force given Conner's behavior.
(Doc. 77 at 15-16.) Conner violated prison rules, created a dangerous situation,
was noncompliant, and failed to produce evidence that any Defendant was
deliberately indifferent to a substantial risk of harm to his health or safety. (Id.)
Therefore, the IPS Defendants' use of OC spray, despite Conner's mental health,
did not violate his constitutional rights. (Id. at 17.)
Further, Conner's objections based on the OC spray use and his mental
health fail to present any new legal argument and do not comply with District of
Montana Local Rule 59 .2 by identifying the specific evidence in the record to
contradict Judge Johnston's factual findings. Nor did Conner identify legal
authority to contradict Judge Johnston's recommendations. Conner's objections
based on these grounds are generally rehashed arguments of the same allegations
made in his Amended Complaint and do not merit further analysis.

b.

Conner's Asthma, Medical File Access, and RN Squires

Judge Johnston found that Conner failed to show evidence Defendants
knew Conner was asthmatic prior to the use of OC spray during the cell extraction.
The Eighth Amendment protects prisoners from inhumane conditions of
confinement and is violated when prison officials act with deliberate indifference
to a substantial risk of harm to an inmate's health or safety. Farmer v. Brennan,
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511 U.S. 825, 828, 833 (1994). Courts, however, must accord prison
administrators wide-ranging deference in the adoption and execution of policies
and practices to further institutional order and security. Bell v. Wolfish, 441 U.S.
520, 547 (1979); Jeffers v. Gomez, 267 F.3d 895, 917 (9th Cir. 2001).
The Court agrees with Judge Johnston's conclusion that Conner has failed
to establish that he informed the officers he was asthmatic prior to the use of OC
spray. (Doc. 77 at 16.) The undisputed evidence shows the MSP staff followed
policy and received medical clearance for the use of OC spray on Conner. (Id.)
The IPS Defendants were also told Conner and his cellmate were medically cleared
for OC spray prior to the cell extraction. (Id.) The IPS Defendants would not have
any way of knowing he was asthmatic because HIPPA prohibits MSP staff who are
not employed by MSP medical to view or learn about an inmate's medical history
unless the inmate tells them that information. Conner's objections fail to produce
any new evidence to suggest any Defendant was deliberately indifferent to a
substantial risk of harm to Conner's health or safety regarding his asthma or
medical clearance. Instead, the Defendants properly followed the policies in place
to medically clear him for OC spray use. (Id. at 17.)
Further, Conner's objections based on his asthma, medical file access, and
RN Squires fail to present any new legal argument, do not comply with District of
Montana Local Rule 59 .2, and are generally rehashed arguments of the same
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allegations made in his Amended Complaint. Therefore, the Court finds these
objections are without merit.

c.

Cell Extraction

Judge Johnston concluded, and this Court agrees, that Conner has failed
to show evidence that the IPS Defendants' use of force during the cell extraction
was excessive given Conner's failure to comply with the IPS Defendants' orders.
Conner alleged in his Amended Complaint and objections he was compliant when
ordered to "cuff up" by the IPS Defendants. (Docs. 9-2 at 1; 80 at 2.) However,
Judge Johnston properly concluded that video of the cell extraction incident
disputes Conner's allegations. (Doc. 77 at 15.) Conner wrapped his face in a
towel to thwart OC spray. (Id.) Conner then proceeded to respond aggressively to
the IPS Defendants' orders to "cuff up" after being asked multiple times before
raising his fist and cursing at the IPS Defendants. (Id.) Additionally, Conner had
already flooded his cell and placed items in front of his cell door. (Id.) Therefore,
Conner's refusal to comply warranted the IPS Defendants' use of force during the
cell extraction.
Conner's objection based on the cell extraction largely reiterates the same
facts and arguments already made and correctly rejected by Judge Johnston.
Conner's objection fails to present new legal argument, does not comply with

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District of Montana Local Rule 59.2, is merely rehashed argument of the same
allegations made in his Amended Complaint, and does not merit further analysis.

d.

IPS Threat, Triable Issues, Request for Counsel

Conner's objections regarding an alleged threat by the IPS Defendants
while being escorted to locked housing, his lack of knowledge of the legal system,
and his request for counsel fail to make legal objections. Judge Johnston found
that the Defendants presented undisputed evidence that Conner was escorted by
Defendants Short and Kent to locked housing without incident. (Doc. 77 at 1213.) Additionally, the Court was aware of Conner's lack of knowledge of the legal
system given his three previous requests for counsel. (Docs. 26; 48; 62.) The
Court denied Conner's previous requests because he did not demonstrate the
"exceptional circumstances" needed for appointment of counsel, failed to show a
likelihood of success on the merits, and did not show his inability to articulate his
claims prose. (Docs. 35 at 13-14; 50 at 2; 63 at 1.)
Instead, these objections reiterate facts and arguments already made and
correctly rejected by Judge Johnston in his legal findings, do not comply with
District of Montana Local Rule 59.2, and rehash arguments made in Conner's
Amended Complaint and previous motions. Accordingly, the Court finds these
objections are without merit.

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Thus, the Court agrees with Judge Johnston's legal findings that
Defendants' Motions for Summary Judgment should be granted and that dismissal
is appropriate because there is no genuine dispute as to any material fact and the
IPS Defendants did not use excessive force. Having further reviewed the Findings
and Recommendations for clear error, and finding none,
IT IS ORDERED that Judge Johnston's Findings and Recommendations
(Doc. 77) are ADOPTED IN FULL. Defendants' Motions for Summary Judgment
(Docs. 64, 66) is GRANTED and this matter DISMISSED. The Clerk of Court
should be directed to close the case and enter judgment in favor of Defendants
pursuant to Rule 58 of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED the Clerk of Court should be directed to
have the docket reflect that the Court certifies pursuant to Rule 24(a)(3)(A) of the
Federal Rules of Appellate Procedure that any appeal of this decision would not be
taken in good faith. No reasonable person could suppose an appeal would have
merit.
DATED this

12.~ay ofFebruary, 2

Dana L. Christensen, Chief Judge
United States District Court

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