Opinion
Civil Action Nos. 97-3163-GTV, 97-3195-GTV.
August 29, 2002
MEMORANDUM AND ORDER
These consolidated cases are based on Plaintiff Verel Tracy Westover's allegations that employees of Shawnee County, among others, violated his civil rights while he was a pretrial detainee at the Shawnee County Adult Detention Facility. Plaintiff proceeds pro se. Plaintiff alleges that he was beaten when he was admitted to the facility, given inadequate medical treatment, allowed to crash into a wall in his wheelchair, discriminated against in violation of the Rehabilitation Act of 1974, and retaliated against for exercising his Fifth and Sixth Amendment rights. All of Plaintiff's claims are brought under 42 U.S.C. § 1983. Over the course of this litigation, the court has dismissed various Defendants from the consolidated cases. The remaining Defendants, who are identified later in this opinion, have filed a motion for summary judgment (Doc. 90) which, for some reason not discernible by the court, does not address all of Plaintiff's claims. For the reasons stated below, the court grants the motion.
I. FACTUAL BACKGROUND
The following facts are taken from the summary judgment record and are either uncontroverted or viewed in the light most favorable to Plaintiff's case. Immaterial facts and facts not properly supported by the record are omitted.
On May 1, 1996, Plaintiff was booked into the Shawnee County Adult Detention Facility as a pretrial detainee. City of Topeka police officers brought Plaintiff to the detention facility and warned staff that Plaintiff could become combative — the police officers claimed that they had to wrestle with Plaintiff when they took him into custody. Correctional Specialist Douglas Fehr, a staff member at the detention facility, asked Plaintiff to proceed to the pat-down area, and Plaintiff walked on his own to the area without incident. Fehr asked Plaintiff to empty his pockets, but Plaintiff was non-responsive. Fehr then asked Plaintiff to walk to the wall and place his hands on the wall, and Plaintiff complied. When Fehr asked Plaintiff to spread his legs, however, Plaintiff refused and said that he could not move his legs because of a medical condition. Fehr placed his foot between Plaintiff's legs and, according to Plaintiff, "judo-cut" Plaintiff, causing him to fall to the ground. Fehr then called for assistance. Additional correctional specialists arrived shortly, and a staff nurse, Barb Fisher, arrived within approximately two minutes. Nurse Fisher checked Plaintiff and advised staff that she could find nothing wrong. The correctional specialists carried Plaintiff to his cell, and began regular health and well-being checks shortly thereafter. Plaintiff alleges that he suffered injury due to the manner in which the correctional specialists carried him to his cell (a "basket carry"). He also claims that, after being placed in his cell, he was denied diabetic meals and medication.
At some point after Plaintiff was placed in his cell, he was sitting in a wheelchair. Plaintiff alleges that a female staff member placed Plaintiff on a slope in his cell, and the wheelchair rolled down the slope, causing Plaintiff to crash into the wall. Plaintiff alleges that he was left on the floor without medical care.
Plaintiff makes countless additional claims in his affidavit opposing Defendants' summary judgment motion, including claims that his cell conditions were intolerable. The court will not recount those claims here, as they cannot be found in Plaintiff's complaints. Furthermore, at the January 25, 2001 scheduling conference, Plaintiff was asked to clarify his claims, and he identified two incidents — the pat-down incident and the wheelchair incident. The court will not allow Plaintiff to continually add claims without complying with the procedures outlined in the Federal Rules of Civil Procedure for amending his complaints.
II. SUMMARY JUDGMENT STANDARD
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 of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Lack of a genuine issue of material fact means that the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. Anderson, 477 U.S. at 256. "[A] party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider the record in the light most favorable to the nonmoving party. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
III. DISCUSSION A. Defendants Affected by this Order
During the course of this litigation, Plaintiff has named over forty parties as Defendants, some through proper procedures and others through merely adding their names to pleading headings. As noted previously, the court has dismissed many of the properly-named Defendants from these cases.
Defendant's summary judgment motion requests dismissal of all claims against all remaining parties. But it does not specify which parties are remaining in the case. The court issued an order on January 14, 2002, directing counsel for Defendants to clarify on whose behalf the summary judgment motion was filed. On January 18, 2002, counsel informed the court that the motion was on behalf of all remaining Defendants, and that, to the best of counsel's knowledge, the Defendants remaining in the consolidated cases at that time were: John Doe (1) and John Doe (2) (correctional specialists); the Shawnee County Commissioners; and Earl Hindman. Court records indicate that additional Defendants were still in the case as of January 18, 2002: John Does (3), (4), and (5) (correctional specialists); Jane Does (1) and (2) (nurses of the City County Health Agency); and Healthcare Services Group, all named in case number 97-3163.
On April 5, 2002, the court ordered Plaintiff to show cause why all John and Jane Doe Defendants should not be dismissed for failure to identify them and effect service within the time limit of Fed.R.Civ.P. 4(m). The court found that Plaintiff did not demonstrate good cause, and dismissed all John and Jane Doe Defendants in an order filed June 10, 2002.
The court determines that the following Defendants now remain in these cases: the Shawnee County Commissioners, Earl Hindman, and Healthcare Services Group. Although counsel for Defendants did not specifically indicate that they were requesting summary judgment on behalf of Healthcare Services Group, Defendants' motion asked for summary judgment "in regard to all remaining parties and claims alleged and alluded to in this matter." "[D]istrict courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence." Celotex Corp., 477 U.S. at 326. Plaintiff is on notice that Defendants are asking the court to dismiss the claims against all remaining Defendants. Plaintiff has had full opportunity to come forth with all of his evidence. The fact that his affidavit discusses conduct by every person or entity that has been named in these consolidated cases (whether properly added as a party or not) indicates that Plaintiff has fully presented his evidence. The court finds no justification for leaving Healthcare Services Group to defend the consolidated cases when Plaintiff's claims against all parties are the same, and the court has concluded that Plaintiff does not have sufficient evidence to support the claims dismissed by this order. "Entering summary judgment for a nonmoving party is in keeping with the objective of Fed.R.Civ.P. 56 to expedite the disposition of cases, and with the wording of Fed.R.Civ.P. 54(c), which requires the court to grant relief 'even if the party has not demanded such relief in his pleadings.'" Nading v. Day Zimmermann, Inc., No. 92-1432-PFK, 1993 WL 302267, at *4 n. 1 (D.Kan. July 6, 1993) (citing 10A Charles Alan Wright, et al., Federal Practice and Procedure § 2720); Rouse v. City of Aurora, 901 F. Supp. 1533, 1539 (D.Colo. 1995) (citations omitted).
B. Municipal Liability
Plaintiff has sued the Shawnee County Commissioners and the Director of the Shawnee County Department of Corrections, Earl Hindman, in his official capacity. A municipality or county may only be held liable for a § 1983 claim if it has established a policy or custom which causes the alleged injury. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). A qualifying policy must be a "policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. A qualifying custom must be "so permanent and well settled as to constitute a 'custom or usage' with the force of law." Adickes v. S.H. Kress Co., 398 U.S. 144, 168 (1970).
Plaintiff has failed to identify or provide evidence of any policy or custom of Shawnee County that led to his injuries. Absent identification of a policy or custom, the Shawnee County Commissioners cannot be held liable under § 1983. Accordingly, the court grants summary judgment as to Plaintiff's claims against Defendant Shawnee County Commissioners.
Furthermore, a claim against a government employee in his or her official capacity is treated as a claim against the governmental entity. Monell, 436 U.S. at 691 n. 55 ("[O]fficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent. . . ."). Plaintiff has sued Defendant Hindman in his individual and official capacities. To the extent that Defendant Hindman is sued in his official capacity, Plaintiff's claims must fail because they are treated as claims against Shawnee County. The court grants summary judgment to Defendant Hindman in his official capacity.
C. Use of Excessive Force
Plaintiff alleges that the "judo-cut" he received from Correctional Specialist Fehr and the fact that he was carried to his cell in a "basket carry" violated his constitutional right to be free from excessive force. The court need not evaluate whether the judo-cut and basket carry violated the constitution. Plaintiff failed to allege personal participation in the events by either Defendant Hindman or Defendant Healthcare Services Group, the only remaining Defendants.
"Individual liability under § 1983 must be based on personal involvement in the constitutional violation." Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997) (citation omitted). A plaintiff must allege facts that establish an affirmative link between a particular defendant's conduct and the alleged constitutional violation. Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1187 (10th Cir. 2001) (citations omitted). Defendant Hindman, as Director of the Shawnee County Department of Corrections, may be held liable for his subordinates' actions based on a failure to supervise, but Plaintiff still must show an affirmative link between any alleged constitutional violation and Defendant Hindman's failure to supervise. See Laury v. R.C. Greenfield, 87 F. Supp.2d 1210, 1218 (D.Kan. 2000). Before liability may be imposed, a supervisor must have "participated or acquiesced" in the conduct which constitutes a constitutional deprivation. Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988). Participation may be shown by a supervisor's establishment or utilization of an unconstitutional policy or custom. Id. However, if no policy or custom is involved, "a plaintiff must show that the supervisory defendant breached a duty imposed by state or local law which caused the constitutional violation." Id. Plaintiff has presented no evidence indicating that Defendant Hindman knew of the alleged incidents of excessive force, acquiesced in them, established a custom or policy which caused the incidents, or breached a duty imposed by state or local law. The court dismisses Plaintiff's excessive force claim against Defendants Hindman and Healthcare Services Group.
D. Inadequate Medical Treatment
Plaintiff alleges that, after he was judo-cut, he received inadequate medical attention. He also appears to claim that he was denied diabetic medication and meals. Again, Plaintiff has failed to provide evidence of personal participation by either Defendant Hindman or Defendant Healthcare Services Group. Plaintiff's claim for inadequate medical treatment is dismissed for that reason. Foote, 118 F.3d at 1423 (10th Cir. 1997) (citation omitted).
Even if Plaintiff's affidavit can be read to allege personal participation by Defendants Hindman and Healthcare Services Group, summary judgment is still appropriate. Plaintiff has presented no evidence of acts rising to the level of a constitutional violation.
Although Plaintiff's claims are brought pursuant to the due process clause of the Fourteenth Amendment, the court uses Eighth Amendment standards to evaluate Plaintiff's claims. Lopez v. LeMaster, 172 F.3d 756, 759 n. 2 (10th Cir. 1999) (citations omitted); Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (citation omitted). A prisoner's Eighth Amendment rights are violated when deliberate indifference is shown to his "serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). The deliberate indifference standard requires a showing of more than mere negligence, or even gross negligence. Id. at 105-06. It involves a two-part test. First, the prisoner must show that objectively, the medical need is "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical need is sufficiently serious "if it is 'one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'" Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (quoting Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D.N.H. 1977)). Second, the prisoner must show that subjectively, the official "[knew] of and disregard[ed] an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837. "[N]o claim of constitutional dimension is stated where a prisoner challenges only matters of medical judgment or otherwise expresses a mere difference of opinion concerning the appropriate course of treatment." Malik v. Mack, 15 F. Supp.2d 1047, 1050 (D.Kan. 1998) (citation omitted).
When a delay in medical treatment is involved, courts will only find a constitutional deprivation "'if there has been deliberate indifference which results in substantial harm.'" Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (quoting Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993)). Courts frequently hold that delays violate the Eighth Amendment when they "'involve life-threatening situations and instances in which it is apparent that delay would exacerbate the prisoner's medical problems.'" Gresham v. Flowers, No. 99-6397, 2000 WL 192926, at *2 (10th Cir. Feb. 17, 2000) (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (citation omitted)); see, e.g., Sealock v. Colorado, 218 F.3d 1205 (10th Cir. 2000) (holding that a delay in treating a heart attack was "sufficiently serious," even if no evidence of damage resulting from the delay was shown); Hunt, 199 F.3d 1220 (holding that summary judgment for the defendants was inappropriate where prisoner alleged that denial of medical treatment for diabetes and hypertension resulted in a heart attack and bypass surgery); cf., e.g., Gresham, 2000 WL 192926 (holding that summary judgment for the defendants was proper where a prisoner had to wait approximately twenty-four hours before his broken wrist was set).
Here, it is unclear exactly what part of his medical care Plaintiff grieves. To the extent that he claims the nurse did not tend to him in a timely manner after the judo-cut, the court dismisses his claim. The record indicates that the nurse arrived on the scene in a matter of minutes. There is no evidence that Plaintiff's injuries were life-threatening or that a "'delay would exacerbate [his] medical problems.'" See Gresham, 2000 WL 192926, at *2 (citations omitted).
To the extent that Plaintiff claims he was entitled to see a doctor rather than a nurse, the court also dismisses his claim. Such a claim amounts to a challenge of medical judgment, which is not actionable. See Malik, 15 F. Supp.2d at 1050. There is no evidence in the record (other than Plaintiff's conclusory allegations) that Plaintiff suffered any serious injury. Plaintiff's general allegations that he was injured are insufficient to create a genuine issue of material fact as to whether Plaintiff's injuries were "sufficiently serious."
Finally, Plaintiff appears to be claiming that he was not given diabetic medication or meals. Again, Plaintiff's allegations are conclusory. There is nothing in the record that would suggest that, objectively, Plaintiff's health condition was sufficiently serious to require diabetic meals or medication. Also absent is any evidence that Defendants were even aware that Plaintiff is diabetic. In the absence of such evidence, the court cannot conclude that a reasonable jury could find Defendants' treatment of Plaintiff deliberately indifferent.
In sum, the court grants summary judgment to Defendants on all of Plaintiff's claims that he received inadequate medical treatment.
E. Wheelchair Crash
Plaintiff claims that allowing his wheelchair to crash into the cell wall amounted to a constitutional violation. Again, Plaintiff has failed to provide evidence of personal participation by either Defendant Hindman or Defendant Healthcare Services Group. Plaintiff's claim regarding the wheelchair crash is dismissed for that reason. Foote, 118 F.3d at 1423 (10th Cir. 1997) (citation omitted).
Even if Plaintiff's affidavit can be read to allege personal participation by Defendants Hindman and Healthcare Services Group, summary judgment is still appropriate because Plaintiff has presented no evidence of acts rising to the level of a constitutional violation. Again, the relevant standard for evaluating Plaintiff's claim is the deliberate indifference standard. See Lopez, 172 F.3d at 759 n. 2 (citations omitted); Craig, 164 F.3d at 495 (citation omitted). There is no evidence in the record that indicates that Plaintiff suffered serious injury from the crash; the court cannot find any mention in Plaintiff's affidavit of the wheelchair crash or any injuries resulting from it. Likewise, there is no evidence in the record that the female staff member was anything but negligent in allowing Plaintiff's wheelchair to roll down the alleged incline. Plaintiff has not provided any evidence other than his conclusory allegation that would suggest that the staff member acted deliberately or subjectively was deliberately indifferent. Absent such evidence, the court will not allow Plaintiff to proceed with his claim. Accordingly, the court grants summary judgment to Defendants on Plaintiff's claim for damages based on the wheelchair incident.
F. Claims not Addressed by Defendants' Summary Judgment Motion
Construing Plaintiff's complaints liberally, as the court must, the court notes that Plaintiff appears to assert two additional causes of action under § 1983. Plaintiff states that he is entitled to damages for violations of the Rehabilitation Act of 1974, 29 U.S.C. § 794. He also states that Defendants retaliated against him for exercising his Fifth and Sixth Amendment rights. Neither claim was addressed in Defendants' summary judgment motion.
The court elects to address Plaintiff's additional claims without briefing by the parties. When a plaintiff files a complaint and "it is patently obvious that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile," a court may dismiss the plaintiff's complaint sua sponte. Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991) (citation and internal quotation marks omitted).
1. Rehabilitation Act
Plaintiff has asked for damages under the Rehabilitation Act. It is unclear whether he brings his claim pursuant to § 1983 or whether he brings his claim pursuant to the implied right of action under § 504 of the Rehabilitation Act. Either way, the court dismisses the claim against all remaining Defendants.
First and foremost, one of the requirements for a viable Rehabilitation Act claim, whether brought pursuant to § 1983 or § 504, is an allegation that the plaintiff was mistreated because of his disability. Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999) (enumerating the elements for a Rehabilitation Act claim). Plaintiff has failed to allege facts suggesting that his disability was the reason Defendants mistreated him. Second, persons in their individual capacity are not subject to liability for damages under the Rehabilitation Act. Hiler v. Brown, 177 F.3d 542, 545-46 (6th Cir. 1999). Any claim against Defendant Hindman in his individual capacity must be dismissed. Finally, insofar as Plaintiff seeks damages against Shawnee County or Defendant Hindman in his official capacity, Plaintiff has not claimed that the county had a policy or custom of discriminating against disabled individuals. Absent such an allegation, the court dismisses the claim to the extent that Plaintiff brings it pursuant to § 1983. See Monell, 436 U.S. at 690, 691 n. 5. In sum, because it is "patently obvious" that Plaintiff could not prove his Rehabilitation Act claim and because it would be futile for the court to allow him to amend his complaints, the court dismisses Plaintiff's Rehabilitation Act claim against all remaining Defendants sua sponte.
2. Fifth and Sixth Amendment Retaliation
Plaintiff's complaints also state that Defendants retaliated against him for exercising his rights under the Fifth and Sixth Amendments. Again, Plaintiff has failed to allege that Shawnee County has a policy or custom of retaliating against those who invoke their right to remain silent or ask for an attorney. See Monell, 436 U.S. at 690, 691 n. 5. The court dismisses Plaintiff's retaliation claim against the Shawnee County Commissioners and Defendant Hindman in his official capacity.
There is no allegation of personal participation by Defendant Healthcare Services Group with regard to Plaintiff's retaliation claim. The court therefore dismisses Plaintiff's retaliation claim against Healthcare Services Group. Foote, 118 F.3d at 1423 (10th Cir. 1997) (citation omitted).
The court declines to sua sponte dismiss Plaintiff's retaliation claim against Defendant Hindman in his individual capacity. "[P]rison officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights. This principle applies even where the action taken in retaliation would be otherwise permissible." Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (citation and internal quotation marks omitted). Plaintiff alleges in his complaints that Defendant Hindman failed to properly supervise his subordinates. He alleges that Defendant Hindman's subordinates engaged in the following activities: (1) Correctional Specialist Fehr kicked Plaintiff and judo-cut him after Plaintiff invoked his right to remain silent and demanded an attorney; (2) Other correctional specialists harassed Plaintiff and placed him in disciplinary segregation and administrative lockdown in retaliation for invoking his right to remain silent; and (3) After Plaintiff refused to speak and demanded an attorney, a female interrogator "in a fit of anger" placed him on a slope in his wheelchair and left him on the floor after he crashed into the cell wall.
Based on Plaintiff's allegations, the court concludes that Plaintiff has sufficiently alleged a cause of action for retaliation against Defendant Hindman. This is not to say that Plaintiff's claim has merit; if Plaintiff presents insufficient evidence to support his allegations, the claim may be subject to dismissal at a later time. However, based on the allegations before it, the court cannot hold that Plaintiff fails to state a claim.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendants' motion for summary judgment (Doc. 90) is granted. Plaintiff's claims regarding excessive force, inadequate medical treatment, and the wheelchair incident are dismissed as to all remaining Defendants.
IT IS FURTHER ORDERED that Plaintiff's claim under the Rehabilitation Act is dismissed as to all remaining Defendants.
IT IS FURTHER ORDERED that Plaintiff's claim for retaliation is dismissed as to Defendant Shawnee County Commissioners, Defendant Hindman in his official capacity, and Defendant Healthcare Services Group.
The only claim remaining in these consolidated cases is Plaintiff's claim for retaliation for exercise of his Fifth and Sixth Amendment rights against Defendant Hindman in his individual capacity. All other parties and claims are dismissed. Copies of this order shall be transmitted to counsel of record and pro se Plaintiff.
IT IS SO ORDERED.