Opinion
Civil Action No. 97-3023-GTV
September 17, 2002
MEMORANDUM AND ORDER
Pro se Plaintiff Mitchell Garraway brings this action against nine federal prison guards pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), seeking monetary relief for alleged constitutional violations while he was imprisoned at the federal penitentiary in Leavenworth, Kansas. Plaintiff alleges that Defendants violated the Eighth, First, Fifth, and Fourteenth Amendments of the Constitution by beating him and restraining him for three days in such a manner that he was unable to pray as required by his religion. The case is before the court on Defendants John Wheaton and Willie Mack's Joint Motion for Summary Judgment (Doc. 76). The other Defendants in this case did not join in the motion. For the reasons stated below, the court grants Defendants Mack and Wheaton's motion in part and denies it in part. Specifically, the court makes the following rulings: (1) The court dismisses all of Plaintiff's claims against all Defendants in their official capacities; (2) The court denies summary judgment as to Plaintiff's Eighth and First Amendment claims against Defendants Mack and Wheaton in their individual capacities; (3) The court grants summary judgment as to Plaintiff's Fifth Amendment claim for excessive force against all Defendants in their individual capacities; (4) The court reserves ruling on Plaintiff's Fifth Amendment claim for unjustifiably restraining him against Defendants Mack and Wheaton in their individual capacities; and (5) The court dismisses Plaintiff's Fourteenth Amendment claim against all Defendants in their individual capacities.
I. FACTUAL BACKGROUND A. Parties' Legal Arguments Concerning the Facts of the Case
As a preliminary matter, Defendants argue that all of their submitted facts should be accepted as uncontroverted because Plaintiff failed to properly dispute them. D. Kan. R. 56.1(a) states, "All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." While a court will liberally construe a pro se litigant's pleadings, Haines v. Kerner, 404 U.S. 519, 520 (1972), a pro se litigant is still expected to follow fundamental procedural rules, Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
In this case, Plaintiff did not set forth a concise, numbered statement of controverted facts in his response to Defendants' summary judgment motion. Plaintiff did, however, draft an attachment entitled "Statement of Disputed Facts." He also addressed most of Defendants' submitted facts in such a fashion that the court can easily discern which facts he is challenging. The Tenth Circuit has expressed a concern with granting summary judgment based on a pro se plaintiff's failure to comply with the technical rules involved with defending a motion. See generally Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991), cited in Woods v. Roberts, No. 94-3159, 1995 WL 65457, at *2 (10th Cir. Feb. 17, 1995); Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir. 1985), cited in Woods, 1995 WL 65457, at *2. The court declines to grant summary judgment based solely on Plaintiff's failure to comply with the technical requirements of our Local Rules.
Defendants also urge the court to grant summary judgment based on a ruling that Plaintiff has only offered conclusory allegations. The court will not do so. Plaintiff has submitted at least some admissible evidence to support the material allegations in his complaints.
Plaintiff requests that the court deny summary judgment based solely on what he views as violations of the Federal Rules of Evidence and Civil Procedure. He alleges that certain evidence supporting Defendants' summary judgment motion is irrelevant and overly prejudicial. The court need not rule on Plaintiff's argument because it denies summary judgment on other bases. The portions of this order which grant summary judgment do so as a matter of law, and not based on any evidence presented to the court.
B. Facts of the Case
The court now turns to the facts of the case. 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.
At the time of the incidents giving rise to this cause of action, Plaintiff was an inmate in the United States Penitentiary in Leavenworth, Kansas. Defendants were prison guards at the penitentiary. Plaintiff claims that, without any provocation or justification, Defendant Mack slapped Plaintiff, elbowed Plaintiff in the face, slammed his head on the concrete floor, and "kneed" Plaintiff up and down his spinal column. Plaintiff also claims that Defendant Kenney kicked Plaintiff's back and buttocks, Defendant Behrens held Plaintiff's legs, and Defendants Kaneer and O'Donnell watched the assault without attempting to stop the assault. According to Plaintiff, Defendant Behrens sexually assaulted Plaintiff by pulling down Plaintiff's underwear, touching his exposed buttocks, and stating, "You're kinda plump back here, boy. . . . You ever been gang raped?"
After the alleged assault, Defendants placed Plaintiff in leg restraints, a belly chain, and handcuffs enclosed in a "black box." Plaintiff, a Sunni Muslim, alleges that this prevented him from performing ritual purification and prayer required by his religion, Islam. Plaintiff claims that Defendants left him in the restraints for three days. Although Defendants' records show that Plaintiff was released after about two days, Plaintiff alleges that Defendants kept an inaccurate log book.
Defendants maintain that they did not release Plaintiff from the restraints because each time they checked on him, he was loud, disruptive, argumentative, insolent, displayed a poor attitude, and refused to answer questions. Plaintiff denies these allegations, and states that he only refused to answer questions regarding his military conviction.
Defendant Kenney drafted an incident report on these events. The incident report was expunged when Plaintiff was transferred to another federal prison. Defendants explain that it was because the appropriate materials were not forwarded to Plaintiff's new prison. Plaintiff alleges that it was expunged because the Bureau of Prisons determined that the report was fabricated.
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. Exhaustion of Administrative Remedies
Defendants state that Plaintiff's claims are barred for failure to exhaust administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) ("PLRA"). However, Defendants admit in their answer that Plaintiff's Administrative Remedy No. 98893 has been rejected at all levels. This admission, given the present state of the record, indicates that Plaintiff has fully satisfied the exhaustion requirement.
B. Official Capacity Claims
It appears from the pleadings that Plaintiff has sued Defendants in both their individual and official capacities. A suit against federal employees in their official capacities is construed as an action against the United States. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citations omitted). The United States is immune from suits except to the extent that it waives its immunity. United States v. Orleans, 425 U.S. 807, 814 (1976). The United States has not waived its immunity with respect to Bivens actions. See Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001) ("There is no such animal as a Bivens suit against a public official tortfeaser in his or her official capacity."); Chapoose v. Hodel, 831 F.2d 931, 935 (10th Cir. 1987). The court therefore dismisses Plaintiff's claims for monetary damages against all Defendants in their official capacities. The court recognizes that all Defendants have not moved for summary judgment, but "[e]ntering 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 Wright Miller, supra § 2720); Rouse v. City of Aurora, 901 F. Supp. 1533, 1539 (D.Colo. 1995) (citations omitted).
C. Individual Capacity Claims/Qualified Immunity
With regard to the claims against them in their individual capacities, Defendants assert that they are entitled to qualified immunity. Qualified immunity shields an individual government official performing discretionary functions from liability for civil damages insofar as his or her 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); Butler v. City of Prairie Village, 172 F.3d 736, 745 (10th Cir. 1999). Because of the extraordinarily broad protection qualified immunity affords to government officials, the court addresses summary judgment motions that raise the defense differently from other summary judgment motions. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (citation omitted). Once a defendant asserts qualified immunity as a defense, the plaintiff bears a significant burden. Hannula v. City of Lakewood, 907 F.2d 129, 130 (10th Cir. 1990). The plaintiff must show that the defendant has violated clearly established law. Id. at 131. It is only after the plaintiff has met this heavy burden that the court evaluates whether, under the normal summary judgment standard, the defendant has demonstrated that no material facts remain in dispute as to "whether his or her actions were objectively reasonable in light of the law and the information he or she possessed at the time." Martin v. Bd. of County Comm'rs, 909 F.2d 402, 405-06 (10th Cir. 1990) (quoting Zuchel v. Spinharney, 890 F.2d 273, 274 (10th Cir. 1989)) (further citations omitted); Hannula, 907 F.2d at 131 (citation omitted).
There are two steps in determining whether a plaintiff has met his burden. First, the court must decide whether the plaintiff has "`asserted a violation of a constitutional right at all.'" Moore v. City of Wynnewood, 57 F.3d 924, 931 (10th Cir. 1995) (quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). If the plaintiff has made a valid claim, then the court must evaluate whether the asserted right was clearly established such that a reasonable person in the official's position would have known that his or her conduct violated that right. Id.; Albright v. Rodriguez, 51 F.3d 1531, 1534-35 (10th Cir. 1995) (citations omitted).
1. Eighth Amendment Excessive Force Claim
Under the above-stated qualified immunity standard, the court first must determine whether Plaintiff has asserted a violation of the Eighth Amendment. The use of excessive force against a prisoner is a violation of the Eighth Amendment's prohibition of cruel and unusual punishment. See, e.g., Hudson v. McMillian, 503 U.S. 1 (1992). To survive summary judgment on his excessive force claim, Plaintiff must produce evidence which suggests that the force was not applied "in a good-faith effort to maintain or restore discipline," and that the force was applied "maliciously and sadistically to cause harm." Id. at 7. Plaintiff does not need to show that he suffered serious injury, but the extent of his injury is relevant in evaluating the necessity and wantonness of the force. Id. at 4, 7-9. Not "every malevolent touch by a prison guard gives rise to a federal cause of action." Id. at 9. The constitution does not proscribe de minimus uses of force. Id. at 9-10.
Plaintiff's evidence is that, without any provocation or justification, Defendant Mack slapped Plaintiff, elbowed Plaintiff in the face, slammed his head on the concrete floor, and "kneed" Plaintiff up and down his spinal column. Plaintiff also has testified in affidavit that Defendant Kenney kicked Plaintiff's back and buttocks, Defendant Behrens held Plaintiff's legs, and Defendants Kaneer and O'Donnell watched without attempting to stop the assault. If Plaintiff can prove all of this at trial, it would be enough to establish a constitutional violation.
Without any authority, Defendants claim that the court must dismiss Plaintiff's claim against Defendants Kaneer and O'Donnell because "it would not be a separate violation of Garraway's rights for two correction offices [sic] to observe three other officers using force to restrain an inmate." Defendants Mack and Wheaton lack standing to ask the court to dismiss Defendants Kaneer and O'Donnell. The court recognizes that it has the ability to dispose of claims sua sponte where warranted, but here, it elects not to do so. The law does not support sua sponte dismissal in this case. A prison guard has a duty to intervene when he witnesses another prison guard using excessive force. Laury, 87 F. Supp.2d at 1216; cf. Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996) (citations omitted) (holding that duty to intervene by law enforcement officers was clearly established).
Defendants argue that under Sampley v. Ruettgers, 704 F.2d 491 (10th Cir. 1983), Plaintiff's claim must fail because there is no evidence that he suffered severe or lasting injury as a result of any force used. The court disagrees. The Tenth Circuit has stated, "Where no legitimate penological purpose can be inferred from a prison employee's alleged conduct . . . the conduct itself constitutes sufficient evidence that force was used `maliciously and sadistically for the very purpose of causing harm.'" Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1290 (10th Cir. 1999) (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). If a prisoner has incurred "`unnecessary and wanton infliction of pain,'" "there is no need . . . to allege significant and lasting injuries." Despain v. Uphoff, 264 F.3d 965, 978 (10th Cir. 2001) (citing Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992); Hudson, 503 U.S. at 9); Laury v. Greenfield, 87 F. Supp.2d 1210, 1217 (D.Kan. 2000) (quoting Hudson, 503 U.S. at 8) ("[D]e minimus uses of force are actionable if they are the sort `repugnant to the conscience of mankind,' even if they do not cause injury."). Here, viewing the evidence in the light most favorable to Plaintiff, the force allegedly used by Defendants was unwarranted, obviating the need for Plaintiff to show significant and lasting injury.
The court must next consider whether such a constitutional violation is clearly established, and concludes that it is. It has long-been established that force not applied "in a good-faith effort to maintain or restore discipline," and force applied "maliciously and sadistically to cause harm" violates the Eight Amendment. Hudson, 503 U.S. at 7.
Finally, the court must evaluate Plaintiff's claim according to the normal summary judgment standard. Plaintiff alleges that Defendants were unjustified in their actions. Defendants maintain that they used no more force than necessary. The court concludes that there is a genuine issue of material fact as to whether Defendants' actions were "objectively reasonable in light of the law and the information [they] possessed at the time." Martin, 909 F.2d at 405-06 (quoting Zuchel, 890 F.2d at 274) (further citations omitted). The court denies summary judgment on this claim.
2. First Amendment Freedom of Religion Claim
A prison inmate is entitled to reasonable opportunity to practice his religion under the Free Exercise Clause of the First Amendment. Cruz v. Beto, 405 U.S. 319, 322 (1972). However, "what constitutes reasonable opportunity must be evaluated with reference to legitimate penological objectives of the prison; consequently, the reasonableness inquiry is less restrictive that what ordinarily might apply." Mosier, 937 F.2d at 1525 (citing O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)). The key issue in this case is whether Defendants had "legitimate penological objectives" for their actions. If Plaintiff's version of events is believed, Defendants restrained him in leg restraints, a belly chain, and handcuffs enclosed in a black box for no reason at all. According to Plaintiff, these restraints prevented him from performing ritual purification and prayer required by his religion for three days. Defendants claim that they justifiably restrained Plaintiff and that Plaintiff could still pray while restrained, but the court must accept Plaintiff's version of events at this stage.
Under Plaintiff's version of events, Plaintiff has asserted a violation of a constitutional right. This right, the right to free exercise of religion in the absence of legitimate penological objectives for limiting a prisoner's ability to practice religion, is clearly established. Furthermore, there is a genuine issue of material fact as to whether Defendants' actions were "objectively reasonable," precluding summary judgment on this claim. Martin, 909 F.2d at 405-06 (quoting Zuchel, 890 F.2d at 274) (further citations omitted).
3. Fifth Amendment Due Process Claim
Plaintiff alleges that the beating he sustained and the time he spent unjustifiably restrained violated his Fifth Amendment substantive due process rights. Plaintiff's Fifth Amendment claim for excessive force is identical to his Eighth Amendment claim, and offers him no additional relief. Cf. Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989) (citing Whitley, 475 U.S. at 327) ("Any protection that `substantive due process' affords convicted prisoners against excessive force is . . . at best redundant of that provided by the Eighth Amendment."); Whitley, 475 U.S. at 327 ("[I]n these circumstances the [ Fourteenth Amendment] Due Process Clause affords respondent no greater protection than does the Cruel and Unusual Punishments Clause."); Berry v. Muskogee, 900 F.2d 1489, 1494 (10th Cir. 1990). To the degree that Plaintiff is alleging that he was subjected to excessive force in violation of the Fifth Amendment, his claim is dismissed.
Insofar as Plaintiff alleges that unjustifiably restraining him for three days violated the Due Process Clause, the court is not yet prepared to rule on the issue. The court intends to appoint counsel for Plaintiff. Counsel may submit further briefing and evidence on this issue after the close of discovery. The court will reserve ruling until that time.
4. Fourteenth Amendment "Conspiracy to Deprive Liberty Interest" Claim
Plaintiff's Amended Complaint (which, the court notes, has not been served on Defendant Mack) alleges a cause of action under the Fourth Amendment for "conspiracy to deprive liberty interest." Defendants have not addressed this claim because neither had been served with Plaintiff's Amended Complaint at the time they filed their motion for summary judgment.
Plaintiff indicates in his response to Defendants' summary judgment motion that his Amended Complaint should have termed the claim a "Fourteenth Amendment" claim, rather than a "Fourth Amendment" claim. Construing Plaintiff's Amended Complaint liberally, as the court must, the court determines that Plaintiff was actually attempting to state a claim under the Fourteenth Amendment.
The Fourteenth Amendment, by its terms, applies to state action, not federal action:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, § 1 (emphasis added); see also Erickson v. United States, 976 F.2d 1299, 1301 n. 1 (9th Cir. 1992) (citing U.S. Const. amend. XIV, § 1) ("We are aware of no authority approving a constitutional tort action against a federal official for a violation of the fourteenth amendment, which applies by its terms only to state action."); Newsom v. Vanderbilt Univ., 653 F.2d 1100, 1113 (6th Cir. 1981) ("The Fifth and Fourteenth Amendments apply to actions of the federal and state governments respectively.").
Plaintiff has sued federal prison guards. The Fifth Amendment, not the Fourteenth Amendment, offers protection from the actions of federal prison guards. Newsome, 653 F.2d at 1113. The court therefore dismisses Plaintiff's Fourteenth Amendment claim sua sponte pursuant to 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1).
IT IS, THEREFORE, BY THE COURT ORDERED that Defendants Wheaton and Mack's motion for summary judgment (Doc. 76) is granted in part and denied in part. Specifically, the court makes the following rulings: (1) The court dismisses all of Plaintiff's claims against all Defendants in their official capacities; (2) The court denies summary judgment as to Plaintiff's Eighth and First Amendment claims against Defendants Mack and Wheaton in their individual capacities; (3) The court grants summary judgment as to Plaintiff's Fifth Amendment claim for excessive force against all Defendants in their individual capacities; (4) The court reserves ruling on Plaintiff's Fifth Amendment claim for unjustifiably restraining him against Defendants Mack and Wheaton in their individual capacities; and (5) The court dismisses Plaintiff's Fourteenth Amendment claim against all Defendants in their individual capacities.
Copies of this order shall be transmitted to pro se plaintiff Mitchell Garraway and counsel of record.