Gunn v. Gordon et al

Filing 83

MEMORANDUM DECISION AND ORDER granting in part and denying in part 39 Motion for Summary Judgment; denying 41 Motion to Reconsider; denying 45 Motion to Appoint Expert; denying 50 Motion for Discovery; denying 52 Motion to Order USP re Mail; denying 56 Motion for Free Copies; granting 71 Motion for Leave to File Amended Complaint. Signed by Judge David Nuffer on 9/30/15 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

RICHARD Q. GUNN,
Plaintiff,

MEMORANDUM DECISION & ORDER
GRANTING IN PART AND
DENYING IN PART MOTION FOR
SUMMARY JUDGMENT

v.
DENNIS GORDON et al.,
Case No. 2:13-CV-659-DN
Defendants.
District Court Judge David Nuffer

Plaintiff/inmate, Richard Q. Gunn, argues that Defendants, Utah State Prison (USP)
Doctor Richard Garden and Lt. Dennis Gordon, violated his right against cruel and unusual
punishment. Specifically, he asserts that (1) Garden denied him appropriate medical care; and
(2) Gordon used excessive force and injured Plaintiff, when handcuffing him. Before the Court
is Defendants’ Motion for Summary Judgment.
Defendants filed several exhibits with their summary-judgment motion, including
declarations by Defendants Garden and Gordon, and Grievance Coordinator Billie Casper and
Paralegal Suzanne Nelson. They also filed many pages of medical and other prison records
relevant to Plaintiff’s allegations.
In ruling on Defendants’ summary-judgment motion, the Court fully considers--in a light
most favorable to Plaintiff--all items filed on the docket. Most particularly, though, the Court
carefully evaluates Plaintiff’s Complaint; Defendants’ Martinez report, with all exhibits and
declarations; Defendants’ summary-judgment motion; Plaintiff’s Response to SummaryJudgment Motion, and Defendants’ reply to Plaintiff’s response.

ANALYSIS
I.

Summary-Judgment 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). Factual assertions may be supported by
citing to parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers,
or other materials; or . . . showing that the materials cited do not
establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the
fact.
Id. at 56(c)(1). A primary purpose of the summary-judgment rule “is to isolate
and dispose of factually unsupported claims or defenses.” Celotex v. Catrett, 477
U.S. 317, 324 (1986).
The party moving for summary judgment bears the initial burden of showing “that there
is an absence of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325.
This burden may be met merely by identifying portions of the record which show an absence of
evidence to support an essential element of the opposing party’s case. Johnson v. City of
Bountiful, 996 F. Supp. 1100, 1102 (D. Utah 1998).
Once the moving party satisfies its initial burden, “the burden then shifts to the
nonmoving party to make a showing sufficient to establish that there is a genuine issue of
material fact regarding the existence of [the disputed] element.” Id. Rule 56 requires a
nonmovant “that would bear the burden of persuasion at trial” to “go beyond the pleadings and
‘set forth specific facts’ that would be admissible in evidence in the event of a trial from which a
rational trier of fact could find for the nonmovant.” Adler v. Wal-Mart Stores, 144 F.3d 664, 671

(10th Cir. 1998). The specific facts put forth by the nonmovant “must be identified by reference
to an affidavit, a deposition transcript or a specific exhibit incorporated therein.” Thomas v.
Wichita Coca-Cola Bottling, 968 F.2d 1022, 1024 (10th Cir. 1992). Mere allegations and
references to the pleadings will not suffice. However, the Court must “examine the factual
record and reasonable inferences therefrom in the light most favorable to the party opposing the
motion.” Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir. 1999).
II.

Statement Of Undisputed Facts

1.

Plaintiff was housed at USP during all relevant times.

2.

Defendant Garden is Administrative and Clinical Director over health services for

the Utah Department of Corrections (UDOC). He did not personally participate in providing
medical care to Plaintiff. (Garden Decl. at ¶¶ 3 & 8.)
3.

Between February 1, 2010 and September 16, 2010, Plaintiff injured his shoulder

and received medical treatment, culminating in surgery to repair his damaged shoulder. (Garden
Decl. at ¶¶ 9-18.)
4.

On November 17, 2010, Defendant Gordon handcuffed Plaintiff “so he could be

escorted from the section.” (Gordon Decl. at ¶ 17.)
5.

“On November 17, 2010, Plaintiff was seen by EMT Jenn Fitzgerald, and

complained that while the officers were cuffing him they pulled on his shoulder and he was
worried that the ‘pins were out.’” (Garden Decl. at ¶ 22.)
6.

Between November 3, 2010 and November 30, 2010, Plaintiff had physical

therapy sessions. (Garden Decl. at ¶¶ 21-24.)
7.

On December 20, 2010, Plaintiff was seen by Dr. Curtis via Telemed for a follow-

up consultation. The notes show that Plaintiff was progressing slowly in physical therapy and

that he “had been in a fight with another inmate and that his shoulder had been pulled
forcefully.” (Garden Decl. at ¶ 25.)
8.

Between January 31, 2011 and August 1, 2012, Plaintiff continued to receive

medical treatment for shoulder pain, culminating in another surgery to repair his damaged
shoulder. (Garden Decl. at ¶¶ 26-51.)
III.

Personal Participation

To validly state a claim against a defendant in a § 1983 action, a plaintiff must allege the
personal participation of the defendant in violating the plaintiff’s federal constitutional rights.
Anaya v. Crossroads Managed Care Sys, Inc., 973 F. Supp. 1228, 1248 (D. Colo. 1997), rev’d
on other grounds, 195 F.3d 584 (10th Cir. 1999); see also Bennett v. Passic, 545 F.2s 1260,
12162-63 (“Personal participation is an essential element in a § 1983 claim.”). The plaintiff
must assert an affirmative link between the violation and the defendant’s actions. Id.
Further, it is well settled in the Tenth Circuit that “[u]nder § 1983, government officials
are not vicariously liable for the misconduct of their subordinates.” Serna v. Colo. Dep’t of
Corrs., 455 F.3d 1146, 1151 (10th Cir. 2006). Supervisors are liable only “for their own culpable
involvement in the violation of a person’s constitutional rights.” Id. Section 1983 liability is not
available under the doctrine of respondeat superior. Monell v. New York City Dept’ of Social
Servs., 436 U.S. 658, 691-692 (1978). For a plaintiff to simply state that a defendant is a
supervisor will not suffice to state a claim; “supervisor status by itself is insufficient to support
liability.” Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996).
Defendant Garden oversees the administration and delivery of medical services to
inmates throughout the USP population. Plaintiff has not even alleged, nor do any of the records

filed with this case show, that Defendant Garden participated in any sick calls or personally
prescribed medication or treatment for Plaintiff.
The Court then assumes that Plaintiff named Defendant Garden simply because of his
supervisory role over USP’s medical personnel. However, his supervision, minus “’exercise of
control or direction’” as to Plaintiff’s specific case, is insufficient to sustain a claim against him.
Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (quoting Meade v. Grubbs, 841 F.2d
1512, 1527 (10th Cir. 1988)). There is no allegation or evidentiary support for the possibility that
Defendant Garden deliberately or intentionally acted toward Plaintiff. See Dodds v. Richardson,
614 F.3d 1185, 1196 n.4, 1209 (10th Cir. 2010) (Tymkovich, J., concurring). Accordingly,
Defendant Garden may not be held responsible for violating Plaintiff’s constitutional rights.
Plaintiff’s claims against Defendant Garden fail as a matter of law and are dismissed.
All Plaintiff’s claims of inadequate medical treatment are therefore dismissed as well.
This is because there remain no defendants to which these claims may be linked.
IV.

Inadequate Claims

Plaintiff’s vague and cursory allegations of due-process and equal-protection violations
fail to state claims upon which relief may be granted. There simply are not enough facts
presented to allow any meaningful analysis. Any claims brought under the umbrella of dueprocess or equal-protection principles are thus dismissed.
V.

Excessive Force

The relevant inquiry in determining the existence of excessive physical force, violating
the Eight Amendment, is “whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7
(1992). The factors to be considered in making this determination are: (1) the extent of the

inmate’s injury; (2) the need for force; (3) the relationship between that need and the amount of
force used; (4) the threat reasonably perceived by the responsible officials; and (5) any efforts
made to temper the severity of a forceful response. Id. A guard’s de minimis use of physical
force is excluded from the Eight Amendment’s prohibition.” Id. at 9-10.
The parties’ declarations and evidentiary submissions are at odds as to each one of these
factors. Thus, the Court cannot be certain at this time regarding the extent of Plaintiff’s injury
(from this incident); the need for Defendant Gordon to apply the force he did; the relationship
between any possible need for force and amount used; whether Defendant Gordon reasonably
perceived a threat and to what degree; and whether he tried to tailor the severity of the force he
used to the specific situation of a Plaintiff who had recent surgery. Defendant Gordon simply
did not meet his burden on summary judgment.
Based on the evidence accompanying the summary-judgment motion and opposition at
hand, the Court cannot say there is no dispute as to the material fact. Indeed, many of
Defendant’s arguments for summary judgment involve the competing credibility of Plaintiff
versus Defendant. This is a sign that an issue of material fact exists. Summary judgment is
therefore denied--but only as to Defendant Gordon’s alleged use of excessive force in cuffing
Plaintiff.
CONCLUSION
IT IS ORDERED that:
(1) Defendants’ Motion for Summary Judgment is GRANTED IN PART and DENIED
IN PART. (See Docket Entry # 39.) It is granted as to Defendant Garden and causes
of action of inadequate medical care and due-process and equal-violations. It is
denied as to the excessive-force claim against Defendant Gordon.

(2) Plaintiff’s motion for the Court to reconsider its dismissal of Warden Bigelow in an
earlier order is DENIED again. (See Docket Entry # 41.)
(3) Plaintiff’s motion to appoint an expert witness is DENIED. (See Docket Entry # 45.)
This appears to be asking for an expert to testify about inadequate medical care--a
claim that has been dismissed.
(4) Plaintiff’s request for discovery is DENIED. (See Docket Entry # 50.) First, he
concedes that he has by now been able to see the sealed exhibits; and, second, the
request is too broad, considering how this Order narrows the case’s focus.
(5) Plaintiff’s motion for the Court to order USP personnel to stop interfering with his
legal mail is DENIED. (See Docket Entry # 52.) This appears to be a possibly
separate claim of legal access and must be appropriately grieved and brought in a
separate case, if at all.
(6) Plaintiff’s motion for the Court to supply copies of his pleadings is DENIED. (See
Docket Entry # 56.) This request is too broad and burdensome, in light of the length
of the docket.

(7) Plaintiff’s motion to amend his complaint is GRANTED. (See Docket Entry # 71.)
If Plaintiff decides to amend, he shall file his amended complaint within thirty days.
The amended complaint shall not stray outside the facts and claims at issue in the
original complaint. And the amended complaint shall not incorporate any part of the
original complaint, nor any other pleadings on the docket. If filed, an amended
complaint shall supersede the claims as already presented.
DATED this 30th day of September, 2015.
BY THE COURT:

CHIEF JUDGE DAVID NUFFER
United States District Court