Opinion
CIVIL ACTION NO. 99-3363-KHV.
July 26, 2001.
MEMORANDUM AND ORDER
Kenneth Jackson brings suit against various employees of the Kansas Department of Corrections ("KDOC"), alleging that defendants violated his constitutional rights by denying him adequate medical care and using excessive force. Plaintiff also asserts a state law claim for assault and battery. This matter is before the Court on defendants' Motion For Summary Judgment (Doc. #35) filed March 6, 2001. For reasons set forth below, the Court sustains defendants' motion in part.
Summary Judgment Standards
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247 (1986); Smith v. Midland Brake. Inc., 138 F.3d 1304, 1307 (10th Cir. 1998) The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets its burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
In considering a summary judgment motion the Court must view the evidence in the light most favorable to the nonmoving party.See Tom v. First Am. Credit Union, 151 F.3d 1289, 1291 (10th Cir. 1998). Summary judgment may be granted, however, if the nonmoving party's evidence is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 250-1. Thus, "`[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,' summary judgment in favor of the moving party is proper." Thomas v. IBM, 48 F.3d 478, 484 (10th Cir. 1995) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
In pro se prisoner litigation, the Tenth Circuit endorses the completion and filing of a "Martinez report" where the prison constructs an administrative record detailing the factual investigation of the events at issue. See Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978). The 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." Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991)). The pro se prisoner's complaint, when sworn and made under a penalty of perjury, is also treated as an affidavit and, like the Martinez report, serves as evidence for a summary judgment determination.See id.
Factual Background
Not surprisingly in this type of action, where an inmate alleges excessive force by prison guards, plaintiff's version of the relevant events differs dramatically from that of defendants. Because this matter is before the Court on defendants' motion for summary judgment, however, the Court must accept as true plaintiff's factual allegations which are properly supported by the record and afford plaintiff all reasonable inferences therefrom. With that preface, the following facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to plaintiff.Plaintiff is an inmate at the El Dorado Correctional Facility ("EDCF") in El Dorado, Kansas. Charles E. Simmons is Secretary of the KDOC. Michael A. Nelson is Warden at EDCF. Leonard Moore, Brent Johnson, Heath Austin and Mahlon Boyer were correctional officers at the facility. All defendants were employees of the State of Kansas at the time of the relevant events.
Because plaintiff was granted leave to proceed in forma pauperis, the clerk prepared waiver of service forms for all defendants and the United States Marshal's Office served those forms by mail. The record reflects that the waiver of service forms were returned unexecuted as to Boyer and Johnson, but the Attorney General for the State of Kansas has entered an appearance on behalf of these two defendants. See State Defendants' Response To Order Issued 4/24/01 (Doc. No. 43) (Doc. #45) filed May 3, 2001. The Answer (Doc. #24) includes the affirmative defenses of insufficiency of process and insufficiency of service of process. The answer was filed by "[d]efendant, Charles D. Simmons, et al." See id. at 1. Because the Attorney General later filed a document on behalf of all defendants, the Court assumes that Boyer and Johnson intended for the Answer to include them. At this point, neither party has raised the service issue. The Court therefore need not address it at this time.
The Court notes that the Attorney General filed the motion for summary judgment and supporting memorandum on behalf of all defendants except Johnson.
After plaintiff sustained a knee injury, the medical staff at EDCF excused him from standing for "prolonged" periods of time. Whenever plaintiff went to the clinic at EDCF to obtain medication from approximately June 5 through August 4, 1999, prison staff had allowed him to sit in the clinic waiting room until only a few inmates remained in the medication line. On August 5, 1999, plaintiff went to the clinic to obtain pain medication for his knee and medication for his stomach. He again sat down in the clinic waiting room. Officer Boyer approached plaintiff and told him to stand in the medication line or leave. Plaintiff explained that he had chronic knee pain and showed Boyer a note which documented his medical restriction. Boyer took the note and asked the nurse on duty whether standing in the medication line constituted "prolonged" standing. The nurse responded that standing in the medication line did not constitute "prolonged" standing. Shortly thereafter, Officers Brent Johnson and Heath Austin arrived. Officer Johnson approached plaintiff and told him to stand in line or leave. Plaintiff stood up and tried to show Johnson the note which documented his medical restriction, but Johnson bumped plaintiff in the chest, grabbed him and put him on the floor. Austin then deliberately grabbed plaintiff's bad leg and folded it over his right leg and leaned his weight on it causing excruciating pain. Johnson and Boyer then put handcuffs on plaintiff which were excessively tight and caused plaintiff severe pain. Johnson and Austin dragged plaintiff by his arms about 50 yards to the captain's office. Another prison guard observed plaintiff outside the captain's office. The prison guard asked Lieutenant Leonard Moore to loosen plaintiff's handcuffs because they were too tight. Moore refused.
Approximately ten minutes after the attack, a nurse at the EDCF clinic examined plaintiff. The nurse and a prison guard again asked Moore to loosen the handcuffs. Plaintiff's wrists had swollen around the handcuffs. Moore finally instructed the guard to loosen the handcuffs. The nurse noted that the handcuffs were tight on plaintiff's wrists and were cutting into the skin, but the skin was still intact. The nurse also noted that plaintiff had a contusion on his left cheek and swelling on his left knee.
On August 11, 1999, the EDCF disciplinary board held a hearing on the alleged attack. The board found plaintiff guilty of refusing two direct orders and sentenced him to 21 days of disciplinary segregation.
On November 19, 1999, plaintiff filed suit to recover damages for the attack. He alleges that by denying him adequate medical care and using excessive force, defendants violated his rights under the Eighth Amendment to be free from cruel and unusual punishment. See 42 U.S.C. § 1983. Plaintiff also asserts a state law claim for assault and battery against Johnson, Boyer and Austin.
In the complaint, plaintiff states that since the alleged attack, he physically cannot go to the dining room to obtain his meals. See Complaint (Doc. #1) at 2b. Plaintiff did not file a separate grievance with regard to this charge. Moreover, the Court reads plaintiff s statement about access to the dining room as supporting evidence of damages on his Eighth Amendment and assault and battery claims, not as an independent claim for relief.
Analysis
I. Personal Participation Of Simmons, Nelson And MoorePlaintiff concedes that Simmons and Nelson did not personally participate in the alleged constitutional violations. Plaintiff claims that Simmons is liable because "he is legally responsible for the overall operation of the department of corrections and each institution under his jurisdiction." Civil Rights Complaint Pursuant To 42 U.S.C. § 1983 (Doc. #1) filed November 19, 1999 at 1. He claims that as warden Nelson is liable because "he is legally responsible for the operation of the El Dorado Correctional facility and for the safety and welfare of inmates at that prison." Id. at 2. Such generalized allegations are insufficient to establish the liability of Simmons or Nelson.See Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988) ("A supervisor is not liable under section 1983 unless an `affirmative link' exists between the [constitutional] deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise."). The Court therefore sustains defendants' motion for summary judgment as to defendants Simmons and Nelson.
With regard to defendant Moore, plaintiff alleges that he failed to intervene either before or after the attack by prison guards. See Complaint (Doc. #1) ¶ 26. Plaintiff does not allege or provide any evidence to support the conclusion that Moore knew about the attack until plaintiff arrived at the captain's office. Plaintiff was provided medical attention shortly after the attack. Plaintiff has alleged that Moore personally participated only in the alleged failure to loosen his handcuffs. The Court will address that claim below. Plaintiff's other claims are not cognizable against Moore because plaintiff has not alleged that he personally participated in the alleged wrongful conduct.
II. Deliberate Indifference To Plaintiff's Medical Needs
Plaintiff alleges that by forcing him to stand in line for his medicine and denying him pain medication for one day (August 5, 1999), defendants were deliberately indifferent to his medical needs. Prison officials violate the Eighth Amendment when they are deliberately indifferent to an inmate's serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976);Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981). A medical need is "serious" if it has been diagnosed by a physician as one requiring treatment or if it is so obvious that even a lay person would easily recognize the need for a doctor's attention. Id. The existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; and the existence of chronic and substantial pain are all indications that a prisoner has a "serious" need for medical treatment. McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (cited in Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996)).
Prison officials act with deliberate indifference to an inmate's health if they know that he faces a substantial risk of serious harm and disregard that risk by failing to take reasonable measures to abate it. See Farmer v. Brennan, 5 1 U.S. 825, 835-37 (1994). Such indifference may be proven by showing that prison officials intentionally denied, delayed access to, or interfered with an inmate's necessary medical care. See Estelle, 429 U.S. at 104-05; Jones v. Hannigan, 959 F. Supp. 1400, 1406 (Kan. 1997). Under this standard, plaintiff must show more than a negligent or inadvertent failure to provide adequate medical care and more than a mere difference of opinion between him and the prison medical staff regarding the proper course of treatment. See Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993); Smart v. Villar 547 F.2d 112, 114 (10th Cir. 1976); Jones, 959 F. Supp. at 1406. Accidental or inadvertent failure to provide adequate medical care, or negligent diagnosis or treatment do not constitute a medical wrong under the Eighth Amendment. See Ramos, 639 F.2d at 575, Riddle, 83 F.3d at 1203. Similarly, a prisoner's difference of opinion regarding the medical treatment he has received will not support a claim of cruel and unusual punishment. See Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993); Stephan, 6 F.3d at 692; Ramos, 639 F.2d at 575.
A. Forcing Plaintiff To Stand In Medication Line
Defendants do not deny that plaintiff's knee ailments and associated pain, and his need for medication, were serious under the above standards. Defendants argue, however, that plaintiff has not presented sufficient evidence to satisfy the deliberate indifference requirement. In particular, defendants argue that plaintiff's claim is based on a mere difference of opinion concerning what constitutes "prolonged" standing. The Court agrees. Plaintiff has not presented evidence from which a reasonable jury could find that by requiring him to stand in the medication line, defendants intentionally interfered with his necessary medical care. Indeed, Officer Boyer asked the nurse whether standing in the medication line would constitute "prolonged" standing and she responded in the negative. Even the most liberal reading of plaintiff's complaint would suggest at most a claim that Officer Boyer negligently failed to inquire further of the nurse. The deliberate indifference standard is not satisfied, however, by either negligence or constructive notice. See Farmer, 511 U.S. at 835, 841, see also Ramos, 639 F.2d at 575 (accidental or inadvertent failure to provide adequate medical care, or negligent diagnosis or treatment do not constitute medical wrong under Eighth Amendment). The Court therefore sustains defendants' motion for summary judgment as to plaintiff's claim that by requiring him to stand in the medication line, defendants intentionally interfered with his necessary medical care.
B. Denial Of Pain Medication For One Day
Plaintiff alleges that by denying him pain medication on August 5, 1999, defendants intentionally interfered with his medical treatment. Plaintiff apparently claims that by attacking him, defendants intentionally interfered with his receipt of pain medication. See Complaint (Doc. #1) ¶ 28 (deliberate indifference because defendants forced plaintiff from "medication line without receiving his pain medication"); Brief In Opposition To Defendant's Summary Judgment Motion (Doc. #39) filed April 12, 2001 at 16 (defendants interfered or delayed plaintiff in receiving necessary medical care by removing him from clinic without receiving his pain medication). Defendants argue that plaintiff cannot establish deliberate indifference. While deliberate indifference to serious medical needs encompasses intentional interference with prescribed treatment, see Howard v. Dickerson, 34 F.3d 978, 980-81 (10th Cir. 1994);Martin v. Board of County Comm'rs of County of Pueblo, 909 F.2d 402, 406 (10th Cir. 1990), "in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute `an unnecessary and wanton infliction of pain,' or to be `repugnant to the conscience of mankind,'" so as to fall afoul of the Eighth Amendment. Estelle, 429 U.S. at 104. Accidental or inadvertent failure to provide adequate medical care, or negligent diagnosis or treatment do not constitute a medical wrong under the Eighth Amendment. Ramos, 639 F.2d at 575.
Nothing in the record indicates that by denying plaintiff pain medication, defendants acted deliberately to inflict pain on plaintiff unnecessarily or wantonly. At most, plaintiff has alleged that defendants negligently failed to give him pain medication for one day. Immediately after the altercation, a nurse examined plaintiff. Plaintiff does not allege that he asked the nurse or any other prison official for his pain medication. The dispute between plaintiff and prison officials centered on whether he could sit or stand in line for his medication, not whether he could have the medication. Although defendants may have used excessive force against plaintiff in the dispute about standing in line, see infra part II, nothing in the record suggests that they intentionally did so in order to deny, delay or interfere with plaintiff's receipt of medication. Accordingly, the Court sustains defendants' motion for summary judgment on plaintiff's claim based on the denial of pain medication.
II Excessive Force
Plaintiff contends that, in tackling, cuffing and dragging him, defendants Johnson, Austin and Boyer violated plaintiff's rights by using force which was excessive under the circumstances. Excessive use of force claims brought by inmates fall under the rubric of the Eighth Amendment's prohibition against cruel and unusual punishment. See Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). In order to recover, plaintiff must prove that defendants used excessive force resulting in the "unnecessary and wanton infliction of pain." Hudson v. McMillian, 503 U.S. 1, 5 (1992) (quotingWhitley v. Albers, 475 U.S. 312, 319 (1986)). While prison officials must occasionally resort to physical force to maintain or restore institutional order, they must also balance the institutional interest in order against the risk of harm to the inmate. See Hudson, 503 U.S. at 5. The core judicial inquiry is thus "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 6; see Mitchell v. Maynard, 80 F.3d 1433, 1440 (10th Cir. 1996). To determine whether the use of force could plausibly have been thought necessary or was wanton and unnecessary in a particular situation, the Court should consider the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response.Id.
Defendants argue that plaintiff has not shown that the use of force was "excessive." Plaintiff has offered his own affidavit which states;
When Johnson and Austin arrived, I stood up and attempted to show my paper work to them and they refused to look at it. CO 2 Johnson got right up into my face and [as] I stepped back from him he attacked me along with Boyer and Austin. Johnson placed the hand cuffs on my wrist, done so with all his strength, causing me severe pain. . . . Austin after my [sic] being placed on the ground twisted my bad left knee over my right leg and applied all his weight to the joint of my left knee. This caused me even more severe pain. I was then taken to the captains office, in which I was practically dragged by no more than my wrists and my body weight was placed on my shoulders, and shoulder blades.
Complaint (Doc. #1) at 2b; see Declaration In Opposition To Defendant's Motion For Summary Judgment (Doc. #40) filed April 2, 2001 ¶¶ 11-14. Plaintiff also has offered the affidavit of another inmate who largely corroborates plaintiff's version of events. See Affidavit of Herbert Proffitt #63100 dated July 17, 2000, attached to plaintiff's declaration (Doc. #40). In addition, a nurse's report shortly after the incident states that the handcuffs were tight and cutting into plaintiff's skinSee Prison Health Services Emergency Report, attached as part of Exhibit A to Report in "Martinez v. Aaron" Investigation (Doc. #25). Defendants rely on the Martinez report itself which concludes:
There is no evidence to support Inmate Jackson's allegation that an excessive amount of force was used in the August 5, 1999 incident. Evidence indicates that Inmate Jackson refused a lawful order of a correctional officer on two occasions and then became combative with officers who had directed him to leave the clinic area. Minimum force necessary was employed.
(Doc. #25) at 9. Although defendants have posited a version of the facts under which their use of force might be reasonable, under plaintiff's version of the facts a reasonable jury could (and probably would) find otherwise. That is an issue of fact for the jury. See, e.g., Street v. Parham, 929 F.2d 537, 541 n. 2 (10th Cir. 1991) (in excessive force cases, fact finder determines if force was excessive under circumstances);Trujillo v. Goodman, 825 F.2d 1453, 1458-59 (10th Cir. 1987) (question of excessive force is factual inquiry properly reserved in most instances for jury). A jury will have to weigh the relative credibility of the witnesses in order to determine what happened and whether defendants' use of force was reasonable. Plaintiff's story and defendants' story directly contradict each other, and they cannot be reconciled without evaluating the truthfulness of each. On a motion for summary judgment, the Court cannot engage in that task. Therefore, summary judgment on the issue of the use of excessive force by Johnson, Boyer and Austin is inappropriate.
Plaintiff also alleges that Moore is liable because he failed to intervene and loosen plaintiff's handcuffs. Defendants do not address this claim in their motion for summary judgment. Because plaintiff proceeds in forma pauperis, however, the Court reviews the complaint sua sponte to ensure that it states a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) ( sua sponte dismissal under Rule 12(b)(6) or Section 1915(e)(2)(B)(ii) of meritless claim without opportunity to amend does not violate due process or unduly burden plaintiff's right of access to the courts). The Court finds that Moore may be liable if he knew of and disregarded "an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837. Most cases of "tight handcuffs" certainly would not satisfy this high standard, and indeed plaintiff may ultimately be unable to come forward with sufficient evidence on this claim, but the Court finds that plaintiff's pro se complaint is sufficient to state a claim against Moore. In particular, plaintiff alleges that the handcuffs were excessively tight and caused him severe pain, that a guard asked Moore to loosen the handcuffs but he refused, and that a nurse told Moore that the handcuffs would have to be loosened because they were excessively tight. See Complaint (Doc. #1) at 2b.
III. Absolute Immunity
Defendants argue that they are absolutely immune as to plaintiff's claims against them in their official capacities. The Eleventh Amendment doctrine of sovereign immunity bars actions for damages against state officials in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 165-167, n. 14 (1985), Riddle v. Mondragon, 83 F.3d 1197, 1201 (10th Cir. 1996). Because all of the defendants were or are employees of the State of Kansas, they are absolutely immune from damages in their official capacity.
IV. Qualified Immunity
Defendants claim qualified immunity regarding plaintiff's claims against them in their individual capacities. "Government officials performing discretionary functions generally are shielded 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." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Defendants' entire argument consists of three boilerplate paragraphs with no analysis or mention of any of the individuals or facts involved in the instant action. Based on the generalized nature of defendants' argument, the Court simply cannot ascertain why defendants believe they are entitled to qualified immunity in this case (as opposed to any other case). Because the Court cannot ascertain the precise nature of defendants' argument, it would be hard pressed to require a pro se plaintiff to respond and produce evidence to rebut defendants' argument. Based on the limited record and absent explanation of the qualified immunity defense, the Court rejects defendants' assertion of qualified immunity.
The Court also notes that because plaintiff has presented sufficient evidence to create an issue of fact whether defendants acted in a good-faith effort to restore institutional order, any challenge based on qualified immunity likely would fail at this stage of the case. See Laury v. Greenfield, 87 F. Supp.2d 1210, 1220 (D. Kan. 2000) (overruling motion for summary judgment based on qualified immunity on excessive force claim because officers had not met burden to show that their actions were objectively reasonable under Eighth Amendment inquiry);see also Ouezada v. County of Bernalillo, 944 F.2d 710, 718 (10th Cir. 1991) ("While qualified immunity is a powerful defense in other contexts, in excessive force cases the substantive inquiry that decides whether the force exerted by police was so excessive that it violated the Fourth Amendment is the same inquiry that decides whether the qualified immunity defense is available to the government actor.").
V. Assault And Battery Claim
Defendants argue that plaintiff's assault and battery claim under Kansas law is barred by the Eleventh Amendment. To the extent plaintiff brings his assault and battery claim against defendants in their official capacities, the Court agrees. See Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 121-22 (1984) The Eleventh Amendment, however, does not bar plaintiff s claim against defendants in their individual capacities. See Ashker v. Cal. Dep't of Corrections, 112 F.3d 392, 395 (9th Cir. 1997); see also Green v. Johnson, 977 F.2d 1383, 1388 (10th Cir. 1992) (Eleventh Amendment does not bar state law claim for intentional infliction of emotional distress against defendants in individual capacities).
IT IS THEREFORE ORDERED that defendants' Motion For Summary Judgment (Doc. #35) filed March 6, 2001 be and hereby is SUSTAINED in part and OVERRULED in part. Defendants' motion is sustained as to defendants Charles Simmons and Michael Nelson and as to plaintiff's claims for deliberate indifference to his medical needs and as to all of plaintiff's claims against defendants in their official capacities Defendants' motion is overruled as to plaintiff's claims of excessive force and assault and battery.
IT IS FURTHER ORDERED that this case is referred to the Honorable David J. Waxse, United States Magistrate Judge for pretrial proceedings. The matter is set for trial on February 5, 2002.