Opinion
Case No. 01-3224-JWL
October 21, 2003
MEMORANDUM AND ORDER
Plaintiff Jonathan A. Bafford, proceeding pro se, brought this civil rights action alleging that defendants Michael Nelson, Sergeant Kevin Vail, and Charles Simmons violated his constitutional rights by subjecting him to cruel and unusual punishment in violation of the Eight Amendment to the United States Constitution. Specifically, Mr. Bafford alleges that Sergeant Kevin Vail inflicted excessive force upon him by throwing him to the ground, punching him, and pulling on his nostrils. Plaintiff further alleges that Sergeant Vail inflicted excessive force after this initial confrontation, by beating him in a shower room after correctional officers had restrained Mr. Bafford and when he posed no apparent disciplinary threat. Mr. Bafford argues that defendant Nelson, who was the Warden at El Dorado Correctional Facility ("ECF") at the time of these alleged events, and defendant Simmons, who was the Secretary of the Kansas Department of Corrections ("KDOC"), were liable as Sergeant Vail's supervisors.
Defendants filed a motion for summary judgment, which the court granted in part. See Doc. 35. In that order, the court dismissed Mr. Bafford's claim that Sergeant Vail used excessive force when he initially restrained the plaintiff in response to Mr. Bafford's verbal and physical threats. However, the court found that Mr. Bafford demonstrated a genuine issue of material fact as to whether Sergeant Vail used excessive force in the second encounter that allegedly occurred in the shower room after correctional officers had restrained Mr. Bafford. The court also granted the defendants' summary judgment motion as to Mr. Bafford's supervisory claims against Warden Nelson and Secretary Simmons. The matter pertaining to the second alleged act of excessive force was tried to the court on October 14, 2003. The court has thoroughly considered the evidence and arguments presented at trial. It has relied to a considerable degree on its opportunity to form conclusions about the credibility of the witnesses from close observation of their demeanor while testifying at trial. The court is now prepared to issue its findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). For the reasons set forth fully below, judgment is entered in favor of the defendant.
I. Findings of Fact
Mr. Bafford is currently an inmate in the custody of the Kansas Department of Corrections at the Lansing Correctional Facility. See Doc. 43. However, at all times relevant to this proceeding, Mr. Bafford was a resident at ECF.
On February 1, 2001, Mr. Bafford threatened to cut himself with a piece of plastic he had obtained inside of his cell room. In response, prison officials ordered a "shake down" of Mr. Bafford's cell. To expedite the "shake down," Sergeant Vail and Correctional Officer Gregory Hopkins removed Mr. Bafford from his cell and escorted him to the shower room. Once the prison officials completed the "shake down," Sergeant Vail and Officer Hopkins began to escort Mr. Bafford from the shower room back to his cell.
While escorting Mr. Bafford back to his cell, plaintiff called Sergeant Vail a "pussy," threatened to throw him off of the second floor run, and then made a move toward Sergeant Vail. Sergeant Vail and Officer Hopkins took Mr. Bafford to the ground to gain physical control over the plaintiff. During the course of this take down, Mr. Bafford's head struck the floor or the side of the cell house wall. While on the ground, Sergeant Vail placed his hand under the bridge of Mr. Bafford's nose and applied force in order to gain control over the plaintiff. Once the officers subdued Mr. Bafford, they placed him on his feet. Mr. Bafford then spit blood and saliva on Officer Hopkins' face. The officers once again took Mr. Bafford down to the ground and placed a spit net over his head and secured his legs in shackles. Sergeant Vail observed swelling or bruising on Mr. Bafford's face after the takedown. He testified that Mr. Bafford likely suffered these injuries when Mr. Bafford's head struck the floor during the initial takedown and/or the struggle that ensued thereafter. Officer Hopkins also testified that after the initial takedown, Mr. Bafford was bleeding from the nose and/or his mouth. Officer Hopkins believed that the bleeding occurred as a result of Mr. Bafford's head striking the cell house wall.
After the second takedown, Sergeant Vail reported a "condition 30" and he and Officer Hopkins escorted Mr. Bafford back to the shower room. Sergeant Vail and Officer Hopkins held Mr. Bafford in the corner of the back wall of the shower room. Sergeant Vail testified that he did not use any force in the shower room because they had physical control over Mr. Bafford at that time and did not pose any physical threat to the officers. On cross-examination, he denied striking Mr. Bafford in the back of the head in the shower room. Officer Hopkins testified that he did not observe Sergeant Vail strike Mr. Bafford in the back of the head.
A "condition 30" means that an officer is in need of assistance. Typically when an officer has called a "condition 30," he or she is relieved from duty once additional officers arrive.
Sergeant Kerr responded to the "condition 30," and relieved Sergeant Vail. Sergeant Vail immediately returned to the shakedown office to fill out a report pertaining to the incident. Officer Hopkins was also relieved and he reported to the infirmary because Mr. Bafford had spat blood and saliva onto his face.
While the evidence clearly establishes that prison officials used force to secure Mr. Bafford and that he sustained injuries as a result, the court finds that plaintiff has failed to satisfy his burden of proof as to his claim that Sergeant Vail maliciously struck him in the back of the head after officers had successfully restrained Mr. Bafford in the shower room and when he posed no disciplinary threat. Quite simply, the preponderance of the evidence does not suggest that this assault occurred. Mr. Bafford testified that Sergeant Vail punched him in the back of the head in the shower room. However, Sergeant Vail contradicted this testimony. Moreover, Officer Hopkins testified that he never observed Sergeant Vail punch Mr. Bafford in the back of the head, corroborating Sergeant Vail's testimony. The court finds no basis to adopt the testimony of Mr. Bafford over the testimony of the officers. Sergeant Vail's testimony was wholly consistent with the testimony of Officer Hopkins, and neither officer contradicted their own testimony or offered inconsistent statements on the witness stand. Both of the correctional officers' testimony was consistent with Sergeant Vail's incident report, which he drafted shortly after the February 1, 2001 incident. Moreover, their testimony was consistent with Mr. Bafford's own testimony regarding the incident, except for the events that transpired in the shower room. Additionally, based on its observation of the witnesses' demeanor and the substance of their testimony, the court does not believe that Sergeant Vail or Officer Hopkins minimized potentially detrimental testimony pertaining to their initial use of force, nor did they embellish upon or exaggerate potentially beneficial testimony pertaining to the threatening conduct of Mr. Bafford. These factors further enhance the credibility of the correctional officers.
While Mr. Bafford sustained injuries to the front of his face, this fact does not corroborate his claim that Sergeant Vail punched him in the back of the head. The court finds that the injuries to the front of Mr. Bafford's face likely occurred during the initial confrontation with Sergeant Vail and Officer Hopkins. During this initial encounter (which the court has previously ruled did not constitute excessive force), Mr. Bafford struck his head on the floor or side of the cell house wall, and Sergeant Vail applied force to the area under the bridge of plaintiffs nose. Mr. Bafford has offered no medical records or physical evidence demonstrating that he suffered any injury to the back of his head. As such, the preponderance of the evidence pertaining to Mr. Bafford's physical injuries does not suggest that Sergeant Vail punched Mr. Bafford in the back of the head in the shower room.
Mr. Bafford also testified that his encounters with Sergeant Vail since the February 1, 2001 incident demonstrate Sergeant Vail's malice and ill-will towards the plaintiff. In the first such encounter, Mr. Bafford had tied a rope around his neck while he was in his cell. According to Mr. Bafford, Sergeant Vail entered the cell with a pair of scissors and cut Mr. Bafford's hair, during the course of removing the rope around his neck. In the second encounter, Mr. Bafford explained that after relieving himself in his own clothing, Sergeant Vail said that if Mr. Bafford did that again, he would get mad. In the final encounter, Mr. Bafford explained that after swallowing a pair of fingernail clippers, he was escorted to the infirmary, where Sergeant Vail threw him to the ground and punched him repeatedly. The court does not believe that these encounters corroborate Mr. Bafford's claim. First, because all of these alleged encounters occurred after the February 1, 2001 incident, they are at best marginally relevant to Mr. Bafford's surviving claim. Second, Sergeant Vail testified that he never recalled taking Mr. Bafford down and reporting a "condition 30" in the infirmary. Finally, as to the other two encounters, Mr. Bafford's own testimony fails to create an inference that Sergeant Vail acted with malice or ill-will. After all, Sergeant Vail acted reasonably when he clipped some of Mr. Bafford's hair while removing a rope that plaintiff had perilously placed around his own neck. Similarly, the fact that Sergeant Vail told Mr. Bafford that he would be upset if plaintiff soiled himself again fails to demonstrate any evil motive. Thus, the court finds that Mr. Bafford's encounters with Sergeant Vail, subsequent to the February 1, 2001 incident, fail to corroborate his allegations of excessive force in the shower room.
In short, Mr. Bafford failed to produce evidence sufficient to prove by a preponderance of the evidence that Sergeant Vail maliciously punched him in the back of the head in the shower room. Mr. Bafford's testimony was contradicted by the testimony of the correctional officers, and the court finds no basis to adopt the plaintiffs testimony over the testimony of Sergeant Vail and Officer Hopkins. Moreover, Mr. Bafford produced no independent evidence to support the inference that he sustained any injury or blow to the back of his head As such, the court finds that there is insufficient evidence to establish that the shower room incident, as described by Mr. Bafford, actually occurred
II. Conclusions of Law
Plaintiff claims that Sergeant Vail used excessive force in violation of the Eighth Amendment when he allegedly punched him in the back of the head in the shower room, after correctional officers had restrained him and when he posed no apparent disciplinary threat. However, as discussed above, the court finds that Mr. Bafford has failed to carry his burden of proof as to this claim, and therefore, the court finds in favor of the defendant.
The Eighth Amendment to the United States Constitution prohibits officials from inflicting "cruel and unusual punishment" on prisoners convicted of crimes. Clemmons v. Bohannon, 956 F.2d 1523, 1525 (10th Cir. 1992). Eighth Amendment protections apply to the states by virtue of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 662 (1962). "The use of excessive force by jail officials violates a prisoner's rights under the Eighth Amendment's Cruel and Unusual Punishments Clause when the prisoner is subjected to an `unnecessary and wanton infliction of pain.'" Miller v. Glanz, 948 F.2d 1562, 1566 (10th Cir. 1991) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).
"Ordinarily, an 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 act[ed] with a sufficiently culpable state of mind.'" Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1289 (10th Cir. 1999) (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). As to the prison official's subjective state of mind, the Supreme Court has held that "the core judicial inquiry 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, 6-7.
Of course, Mr. Bafford must prove his excessive force claim by a preponderance of the evidence. Medina v. Cram, 252 F.3d 1124, 1137 (10th Cir. 2001) (noting that a § 1983 case is not a criminal prosecution, and the preponderance standard applies to civil claims of all sorts); Gomm v. DeLand, 729 F. Supp. 767, 783 (D. Utah 1990) (entering judgment for defendants where plaintiff did not meet his burden of proving by a preponderance of the evidence that any defendant violated his constitutional rights under the Eight Amendment) As explained in the findings of fact section of this opinion, Mr. Bafford has failed to satisfy this evidentiary burden. Accordingly, the court enters judgment in favor of the defendant.
IT IS THEREFORE ORDERED BY THE COURT that judgment be entered in favor of the defendant on plaintiffs Eighth Amendment excessive force claim.