Opinion
CIV-20-1254-J
04-06-2023
DONTE E. GRIFFIN, Plaintiff, v. SGT. FRITSCHOW, et. al., Defendants.
FOURTH SUPPLEMENTAL REPORT AND RECOMMENDATION
GRAY M PURCELL JUDGE
Plaintiff, a federal prisoner appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Before the Court is Defendants' Motion for Summary Judgment. Doc. No. 94. Plaintiff did not file a Response to the same. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends Defendants' Motion be granted in part and denied in part.
I. Plaintiff's Allegations
Plaintiff is a federal prisoner who was confined for a time in the Grady County Detention Center (“GCDC”) located in Chickasha, Oklahoma. According to his Third Amended Complaint (Doc. No. 80), a fight broke out between inmates in the unit where Plaintiff was confined on November 28, 2020. Id. at 15. GCDC Officer Jessica Renschmidt reported the fight and officers came into the unit to detain the inmates involved. Upon arriving in the unit, Defendant Chad Fritschow asked Officer Renschmidt which inmates were fighting. Id. She responded that she did not know and that all she “could see was him,” pointing to an inmate. Id. Plaintiff spoke up and stated that the inmate to whom she pointed was not involved in the altercation. Id. Plaintiff and Defendant Fritschow exchanged words, culminating in Defendants Fritschow, C. Rouse, Christopher Thomas, and S. Klipp using force to constrain Plaintiff.
By this action, Plaintiff asserts claims under 42 U.S.C. § 1983 against Defendants in both their individual and official capacities. Id. at 12-17. He identifies his claim only as “cruel and unusual punishment and pain and suffering” and his allegations indicate it is based on excessive force. Id. Thus, the Court liberally construes Plaintiff's claim against each Defendant as arising under the Eighth Amendment.
II. Standard of Review
Summary judgment may only be granted when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the Court reviews the evidence and inferences drawn from the record in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local, 462 F.3d 1253, 1258 (10th Cir. 2006).
A dispute is “genuine” if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts are “facts that might affect the outcome of the suit under the governing law ....” Id. “At the summary judgment stage, a complainant cannot rest on mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.” Burke, 462 F.3d at 1258 (quotations and alteration omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotations omitted).
III. Uncontroverted Facts
Plaintiff was booked into the GCDC on November 17, 2020. Doc. No. 621. On November 28, 2020, Officer Renschmidt reported a fight that had just occurred in the pod in which Plaintiff was housed. Doc. No. 94-1 at 3, 8. When additional officers responded to her report and arrived in the pod, the fight had already ended. Id. at 7; Doc. No. 67 (GCDC Surveillance Video) at 6:48:366:48:51. The four officers who entered the pod were Defendants Fritschow, Rouse, Klipp, and Thomas. Doc. No. 94-1 at 3-4; Doc. No. 80 at 16. Defendant Fritschow asked Officer Renschmidt the identity of the inmates involved in the reported fight. Doc. No 67 at 6:48:52-6:49:03; Doc. No. 94-1 at 8. Officer Renschmidt responded that she was not sure who was involved in the altercation and that all she saw was “this guy,” directing Defendant Fritschow to an individual in the corner. Doc. No. 94-1 at 12.
As the officers began apprehending the individual that Officer Renschmidt identified, Plaintiff spoke up, saying, “This shit is crazy” and “Man, ya'll are catching the wrong guy. You all are getting the wrong guy.” Doc. No. 67 at 6:49:23-6:49:25; Doc. No. 94-1 at 9. Defendant Fritschow responded by telling Plaintiff to “shut the fuck up.” Doc. No. 94-1 at 9. Plaintiff thought Defendant Fritschow's response was disrespectful. Id. at 10. The exchange between Plaintiff and Defendant Fritschow became more heated. Doc. No. 67 at 6:49:26-6:49:42; Doc. No. 94-1 at 10. At some point during their exchange, Plaintiff stated, “You don't talk to no grown person like that.” Doc. No. 94-1 at 11. Defendant Fritschow responded by telling Plaintiff to pack his stuff. Id. Plaintiff refused, instead telling Defendant Fritschow that he had not done anything wrong. Id. at 11-12.
Defendants Klipp and Rouse began to approach Plaintiff, and Defendant Rouse grabbed Plaintiff's left arm while Plaintiff tried to continue gesturing with his hands while he spoke. Doc. No. 67 at 6:49:43-6:49:49; Doc. No. 94-1 at 1314. Defendant Rouse placed his right arm around Plaintiff's neck, similar to a headlock maneuver, and placed Plaintiff against the wall. Doc. No. 67 at 6:49:496:49:57; Doc. No. 94-1 at 14. Defendant Klipp attempted to grab Plaintiff's right arm, but he moved it away and up the wall. Doc. No. 67 at 6:49:57-6:50:01. Once he was against the wall, he began asking Defendants, “What's all this for? Like, I ain't did nothing wrong. What's all of this for?” and Defendants Rouse and Klipp continued directing him to stop resisting. Doc. No. 67 at 6:49:57-6:49:59; Doc. No. 94-1 at 15.
Defendant Fritschow approached and bent down to grab Plaintiff's legs, but Plaintiff kicked his legs backward toward him. Doc. No. 67 at 6:49:59-6:50:07; Doc. No. 94-1 at 16. Defendant Fritschow, as well as Defendants Klipp and Rouse, began to take Plaintiff to the ground. Doc. No. 67 at 6:50:05-6:50:09. Defendant Fritschow, Defendant Rouse, and Plaintiff fell, with Plaintiff landing mostly on top of Defendant Fritschow. Doc. No. 67 at 6:50:07-6:50:11; Doc. No. 94-1 at 16-17. Defendant Thomas began approaching. Doc. No. 67 at 6:50:076:50:11; Doc. No. 94-1 at 16-17, 27.
Plaintiff testified that he did not kick his leg(s) backward toward Defendant Fritschow, Doc. No. 94-1 at 16, however, the jail surveillance video clearly shows otherwise. Doc. No. 67 at 6:49:59-6:50:07. “[T]he general proposition that we accept plaintiff's version of the facts in the qualified-immunity summary-judgment setting ‘is not true to the extent that there is clear contrary video evidence of the incident at issue.'” Estate of Taylor v. Salt Lake City, 16 F.4th 744, 757 (10th Cir. 2021) (quoting White v. Gen. Motors Corp., 908 F.2d 669, 670 (10th Cir. 1990) (citing Scott v. Harris, 550 U.S. 372, 380 (2007) (“At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine' dispute as to those facts.”)).
Defendant Fritschow got out from under Plaintiff, and Defendant Rouse kneeled over him while still holding Plaintiff on the ground. Doc. No. 67 at 6:50:11-6:50-15. Plaintiff raised up on his left elbow. Id.; Doc. No. 94-1 at 18. Defendants Klipp and Fritschow stood behind Plaintiff and did not touch him again. Doc. No. 67 at 6:50:14-6:51:39. Defendants continued to tell Plaintiff to stop resisting, however, Plaintiff asserts that he was not resisting. Doc. No. 94-1 at 18-19. Other inmates in the pod began approaching the group, stating that Plaintiff was not doing anything. Doc. No. 94-1 at 19. Officer Renschmidt reentered the pod holding her taser and directing the other inmates to back away from the group. Doc. No. 67 at 6:50:13-6:50:17; Doc. No. 94-1 at 18-19.
Plaintiff testified that he did not simply lay down and place his hands behind his back because Defendant Rouse was trying to smash his face into the ground. Doc. No. 94-1 at 19. Defendant Thomas bent down and attempted to place Plaintiff's right hand behind his back. Doc. No. 67 at 6:50:17-6:50:23; Doc. No. 94-1 at 19. Plaintiff continued to resist, freeing his right arm and placing it out in front of him on the ground. Doc. No. 67 at 6:50:23-6:50:24; Doc. No. 94-1 at 21. Defendant Thomas placed his taser directly against Plaintiff's back and it remained there for approximately 46 seconds, until Defendant Rouse placed Plaintiff in handcuffs. Doc. No. 67 at 6:50:23-6:51:07; Doc. No. 94-1 at 20-22. Defendants Rouse and Thomas raised Plaintiff to his feet and escorted him out of the pod. Doc. No. 67 at 6:51:08-6:51:39; Doc. No. 94-1 at 24-25.
Plaintiff concedes that at no point during the incident did any Defendant elbow, punch, or knee strike him. Doc. No. 94-1 at 24. His claims of excessive force are limited to Defendants taking him to the ground and using a taser on him. Id. Plaintiff testified that Defendant Thomas's taser was the kind that must be held directly against an individual for the individual to feel it. Id. at 20. He believes Defendant Thomas held the taser on his back for too long. Id. at 27. The video of the incident shows Defendant Thomas holding the taser against Plaintiff's back, it does not show how often Defendant Thomas pulled the trigger. Id. at 22.
Citing to Defendant Thomas's Incident Report, Defendants state, “Five seconds is the maximum amount of time a taser will operate on a single pull and Defendant Thomas only used one pull.” Doc. No. 94 at 11. However, Defendant Thomas's Incident Report does not address this assertion. The Report states only, “Griffin continued to resist and not comply so I activated my taser.” Doc. No. 62-8 at 1. The Report does not indicate how long a “pull” lasts, nor how many times Defendant Thomas pulled the taser. Id.
Plaintiff also testified that although Defendants injured him mentally and physically, they did not intend to injure him or do anything harmful. Id. at 26-27. He elaborated further, stating, “I'm not saying that these guys' intention was to be excessive. But what they did, it was uncalled for and it was excessive.” Id. at 26. Regarding Defendant Thomas specifically, Plaintiff stated that Defendant Thomas was not intentionally trying to hurt him, “but he did, because he left that taser on there for a long time.” Id. at 27.
Plaintiff's mental injury is limited to now having a different outlook on officers because they attacked him when he was trying to stand up for what was right. Id. at 26. Plaintiff has asserted that he “do[es] not suffer from permanent injuries that [he] know[s] of” as a result of this incident, but he does still “suffer from back pain and shortness of breath.” Doc. No. 94-2 at 2, 5.
IV. Eighth Amendment Analysis
The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. “[C]laims of excessive force involving convicted prisoners arise under the Eighth Amendment.” Estate of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014). Although not “every malevolent touch by a prison guard gives rise to a federal cause of action,” Hudson v. McMillian, 503 U.S. 1, 9 (1992), an inmate need not suffer significant injury to state an excessive force claim. Id. at 5. Rather, an inmate must satisfy “(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 acted with a sufficiently culpable state of mind,” such that the officials used the “force maliciously and sadistically for the very purpose of causing harm, rather than in a good faith effort to maintain or restore discipline.” Redmond v. Crowther, 882 F.3d 927, 936 (10th Cir. 2018) (quotations omitted).
The objective component of an excessive force claim is “contextual and responsive to contemporary standards of decency.” Hudson, 503 U.S. at 8 (quotations omitted). Relevant factors to consider include: (1) “the need for the application of force”; (2) “the relationship between the need and the amount of force that was used”; (3) “the extent of injury inflicted”; (4) “the extent of the threat to the safety of staff and inmates”; and (5) “any efforts made to temper the severity of a forceful response.” Whitley v. Albers, 475 U.S. 312, 321 (1986) (quotations omitted).
A. Defendants Fritschow and Klipp
In reviewing Plaintiff's deposition, as well as the video evidence of the altercation, it is clear these Defendants' use of force was not excessive and/or in violation of Plaintiff's Eighth Amendment rights. Relevant to several of the factors above, when each Defendant first approached Plaintiff, they attempted to use minimal force and only increased their force as Plaintiff continued to resist their efforts to make him pack his things and leave the cell as directed.
As an initial matter, Plaintiff repeatedly argues Defendant Fritschow was not justified in directing him to pack his things and leave the cell. However, whether Defendant Fritschow was justified in doing so is not relevant to Plaintiff's excessive force claim.
[I]nmates and detainees do not get to decide when and how to comply with orders. [The plaintiff] was given multiple opportunities to comply with the orders he had been given, but he remained defiant. When an inmate cannot be persuaded to obey an order, “some means must be used to compel compliance,” because discipline in a correctional institution is “essential if the prison is to function.” Soto [v. Dickey], 744 F.2d [1260, 1267 (7th Cir. 1984)].Forrest v. Prine, No. 07-4086, 2009 WL 2905928, at *6 (C.D. Ill. Sept. 4, 2009).
Thus, the only relevant inquiry in this matter is whether the amount of force used by Defendants was reasonable following Plaintiff's refusal to follow Defendant Fritschow's directive.
Following Plaintiff's refusal to pack his things, Defendant Rouse attempted to hold Plaintiff's left arm, but Plaintiff continued to argue with Defendant Fritschow, gesturing with his arms. Defendant Rouse then used a headlock maneuver to place Plaintiff against the wall. Defendant Klipp then attempted to grab Plaintiff's right arm, but Plaintiff resisted by moving it away and up the wall. Defendants Rouse and Klipp both repeatedly directed Plaintiff to stop resisting but he did not.
Though Plaintiff insists that he was not resisting Defendants' efforts, the video evidence indicates otherwise. See Estate of Taylor, 16 F.4th at 757 (“[T]he general proposition that we accept plaintiff's version of the facts in the qualified-immunity summary-judgment setting is not true to the extent that there is clear contrary video evidence of the incident at issue.” (quotations omitted)).
Defendant Fritschow approached to assist, attempting to grab Plaintiff's legs but Plaintiff continued to resist by kicking at him. The three Defendants then began to take Plaintiff to the ground in an effort to subdue him. When they fell, Plaintiff landed on top of Defendant Fritschow, cushioning Plaintiff's fall. Once Defendant Fritschow moved from underneath him, neither he nor Defendant Klipp touched Plaintiff again.
As previously noted, Plaintiff denies that he kicked his legs toward Defendant Fritschow, however, the surveillance video indicates otherwise. See, supra.
The actions of these two Defendants were quite limited. Defendant Klipp attempted to hold Plaintiff's right arm, as Plaintiff continued to resist. Defendant Fritschow attempted to grab Plaintiff's legs, but after Plaintiff kicked at him, abandoned that attempt and assisted in taking him to the ground instead. Though not determinative, Plaintiff admits that he did not suffer any injury during this portion of the altercation. See, e.g., U.S. v. LaVallee, 439 F.3d 670, 688 (10th Cir. 2006) (holding that an injury is not required in order to establish an Eighth Amendment excessive force claim, but also “recogniz[ing] that the degree of injury may be highly relevant to the determination of the unreasonableness of the force used”), The Court finds that Defendant Klipp's actions in grabbing and holding Plaintiff's right arm and assisting in bringing him to the ground, and Defendant Fritschow's actions in bringing Plaintiff to the ground were not objectively harmful enough to establish a constitutional violation. See Kettering v. Harris, No. 06-cv-01989-CMA-KLM, 2009 WL 508348, at *19 (D. Colo. Feb. 27, 2009) (“[T]he Court finds that neither (1) Deputies Armentrout[] and Smoyer's force in securing Plaintiff's legs and lifting him to the floor, nor (2) Deputy Martinez's force in pulling Plaintiff's clasped hands apart, were objectively harmful enough to establish a constitutional violation.”). Such force, as a matter of law, does not offend the contemporary standards of decency. Id. (citing Hudson, 503 U.S. at 8).
Alternatively, assuming Defendants Klipp and Fritschow's use of force was objectively wrongful enough to establish a constitutional violation, the Court finds that neither Defendant acted with a sufficiently culpable state of mind to incur liability. Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1152 (10th Cir. 2006). It is clear from the video that each Defendant attempted to use the least amount of force necessary and only increased such force as Plaintiff consistently resisted their efforts. Accordingly, Defendants Klipp and Fritschow are entitled to summary judgment against Plaintiff's Eighth Amendment claim.
B. Defendant Rouse
After the three Defendants brought Plaintiff down and Defendant Fritschow moved free of him, Defendant Rouse kneeled over Plaintiff, holding him to the ground. Plaintiff admits that he did not simply lay down and allow himself to be handcuffed, though he says that he refused because Defendant Rouse was attempting to smash his face into the ground. The video reveals that Defendant Rouse continued to attempt to handcuff Plaintiff while kneeling over him, however, Plaintiff continued to resist.
Defendant Thomas had begun to approach Plaintiff right before the other three Defendants took Plaintiff to the ground. While Defendant Rouse was kneeling over Plaintiff attempting to handcuff him, Defendant Thomas attempted to assist by grabbing Plaintiff's right arm to place behind his back. However, Plaintiff continued to resist, freeing his right arm and placing it out in front of him on the ground. At that point, Defendant Thomas deployed his taser. From then until Plaintiff was ultimately handcuffed, Defendant Rouse's actions were limited to continuing to kneel over Plaintiff, holding his left arm, and once he stopped resisting, handcuffing Plaintiff and raising him to his feet.
Similar to above, the Court finds Defendant Rouse's actions were not objectively harmful for purposes of Plaintiff's Eighth Amendment claim. Plaintiff admits that Defendant Rouse did not punch, elbow, or knee strike him. Defendant Rouse simply kneeled over Plaintiff holding his left arm and attempted to handcuff him while Plaintiff resisted. Defendant Rouse's actions were not objectively harmful and as Plaintiff admits, Defendant Rouse did not act with a sufficiently culpable state of mind that would justify liability.
C. Defendant Thomas
Plaintiff's Eighth Amendment claim against Defendant Thomas is based upon Defendant Thomas' use of his taser. The use of a taser is not per se excessive or unconstitutional. Indeed, as noted by the Tenth Circuit, many “[f]ederal courts have held that the use of a taser or similar stun gun is not per se unconstitutional when used to compel obedience by inmates.” Hunter v. Young, 238 Fed.Appx. 336, 339 (10th Cir. 2007) (citing Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004) (holding that a “single use of the taser gun causing a one-time shocking” against a “hostile, belligerent, and uncooperative” arrestee in order to effectuate the arrest was not excessive force in the totality of the circumstances); Jasper v. Thalacker, 999 F.2d 353, 354 (8th Cir. 1993) (using stun gun to subdue an unruly inmate did not violate Eighth Amendment where plaintiff failed to prove that the officers used the stun gun “sadistically or maliciously” to cause harm); Caldwell v. Moore, 968 F.2d 595, 602 (6th Cir. 1992) (use of stun gun against disruptive prisoner to restore discipline and order does not violate Eighth Amendment); Michenfelder v. Sumner, 860 F.2d 328, 336 (9th Cir. 1988) (policy of allowing use of taser guns on inmate who refuses to submit to a strip search does not constitute cruel and unusual punishment)).
Moreover, “tasers are proportional force [] when deployed in response to a situation in which a reasonable officer would perceive some immediate danger that could be mitigated by using the taser.” Estate of Armstrong ex. rel. Armstrong v. Vill. Of Pinehurst, 810 F.3d 892, 903 (4th Cir. 2016). “Courts ‘should . . . be extremely cautious before attempting to prohibit or limit the necessary means' prison officials use to carry out their responsibilities.” Hunter, 238 Fed.Appx. at 339 (quoting Soto, 744 F.2d at, 1270).
Here, Defendant Thomas certainly had cause to perceive a danger in the pod. Defendants initially entered the pod following a physical altercation between inmates. See Hunter, 238 Fed.Appx. at 339 (holding the fact that a guard entered a prisoner's cell shortly after a physical altercation had just taken place with another inmate was relevant to the Eighth Amendment inquiry). Plaintiff was refusing to comply with Defendant Fritschow's directive and resisting Defendants' subsequent efforts to subdue him. Moreover, Plaintiff's fellow inmates had begun approaching Plaintiff and Defendants, and Officer Renschmidt was holding her own taser against them in order to make sure they did not approach further. These circumstances justify Defendant Thomas' initial utilization of his taser against Plaintiff.
The duration of Defendant Thomas' use of the taser, however, is disputed, and the Court is required to view the facts in the light most favorable to Plaintiff. In the surveillance video, Defendant Thomas held the taser against Plaintiff for approximately 46 seconds. One cannot tell from the video whether or how often Defendant Thomas pulled the taser. Defendant Thomas asserts that he only pulled it one time and that pull lasted five seconds. Doc. No. 94 at 11. By contrast, Plaintiff alleges Defendant Thomas used the taser long enough to burn his back and that, as a result, he continues to suffer back pain. Doc. No. 80 at 16; Doc. No. 94-1 at 20-22; Doc. No. 94-2 at 5.
The Court again notes that Defendant Thomas supports this assertion by citing to his Incident Report. Doc. No. 94 at 11 (citing Doc. No. 62-8). However, that Incident Report did not address how many times he “pulled” his taser, nor how long each pull lasted. Had Defendant Thomas presented a personal affidavit supporting his assertion regarding his taser use, there may still be a question of fact between his version of events and those of Plaintiff. However, as no such evidence has been presented, it is unnecessary for the Court to resolve such a question.
Given these facts and viewed in the light most favorable to Plaintiff, the Court cannot conclude that Defendant Thomas' use of force was objectively reasonable under the circumstances, particularly if Defendant Thomas continued to deploy the taser after Plaintiff was reasonably under Defendant Rouse's control and no longer resisting efforts to handcuff him. While it may be true that Defendant Thomas' initial use of the taser was objectively reasonable, the continued use presents a genuine issue of material fact because “it is clearly established that officers may not continue to use force against a suspect who is effectively subdued.” Estate of Smart v. City of Wichita, 951 F.3d 1161, 1176 (10th Cir. 2020) (citation and alteration omitted)). Once Plaintiff stopped resisting, continued use of the taser would not have been the result of any threat posed to Defendant Thomas nor any other jail official.
Additionally, the Court cannot conclude that the continued use of a taser for possibly 46 seconds, after the immediate threat had subsided, could be done in a good faith effort to maintain or restore discipline. Accepting Plaintiff's version of the events surrounding the taser, he has raised a genuine issue of material fact regarding Defendant Thomas' state of mind when he used the taser. That is enough to preclude summary judgment. What Plaintiff will be able to prove at trial is a different question altogether. At this stage, however, if the jury accepted Plaintiff's story, a reasonable jury could conclude Defendant Thomas should have been able “to recognize and react to the changed circumstances” and stop utilizing his taser but failed to do so. McCoy v. Meyers, 887 F.3d 1038, 1050 (10th Cir. 2018). That is all the Court requires. See Anderson, 477 U.S. at 248 (stating that summary judgment is precluded “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party”).
V. Qualified Immunity
Defendant Thomas also raises the defense of qualified immunity. Doc. No. 94 at 22-26. Whether a defendant is entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).
Resolution of a dispositive motion based on qualified immunity involves a two-pronged inquiry. First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Second, the court must decide whether the right at issue was clearly established at the time of the defendant's alleged misconduct.Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (quotations, citations, and alterations omitted). Once a defendant invokes qualified immunity, the burden to prove both parts of this test rests with the plaintiff, and a court must grant the defendant qualified immunity if the plaintiff fails to carry his burden. Dodds v. Richardson, 614 F.3d 1185, 1191 (10th Cir. 2010).
The undersigned has previously determined Plaintiff has asserted sufficient allegations to support his Eighth Amendment claim against Defendant Thomas. With regard to the second part of the qualified immunity test, “[o]rdinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Walker v. City of Orem, 451 F.3d 1139, 1151 (10th Cir. 2006). Defendant Thomas asserts, conclusorily, that neither of these requirements are met. Doc. No. 94 at 26. The Court disagrees.
As previously discussed, in Estate of Smart, the Tenth Circuit reiterated that “it is clearly established that officers may not continue to use force against a suspect who is effectively subdued.” Estate of Smart, 951 F.3d at 1176 (quoting Perea v. Baca, 817 F.3d 1198, 1204 (10th Cir. 2016) (alteration omitted)). Moreover, the overwhelming weight of authority from various courts indicates that it was clearly established at the time of this incident that continuing to use a taser against an inmate who is no longer resisting and/or no longer poses a threat was unconstitutional. McCoy, 887 F.3d at 1050 n.19 (“[T]he relevant inquiry is not how much time elapsed but whether that amount of time provided a meaningful opportunity for a reasonable officer to recognize and react to changed circumstances.” (citing Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005) (“[F]orce justified at the beginning of an encounter is not justified even seconds later if the justification for the initial force has been eliminated.”)); Estate of Booker, 745 F.3d at 424 (“Sergeant Rodriguez used the taser on Mr. Booker for three seconds longer than recommended when he was already handcuffed on the ground and subdued by multiple deputies. A reasonable jury could conclude that a lesser degree of force would have exacted compliance and that this use of force was disproportionate to the need.”); Everett v. Nort, 547 Fed.Appx. 117, 122 (3d Cir. 2013) (affirming the denial of summary judgment on an excessive use of force claim where officers used a taser on a restrained prisoner in the face of continued passive resistance); Cavanaugh v. Woods Cross City, 625 F.3d 661, 665 (10th Cir. 2010) (holding use of taser unconstitutional where jury could “conclude that [the victim] did not pose an immediate threat” to officer or others and where victim was not actively resisting); Lewis v. Downey, 581 F.3d 467, 477-78 (7th Cir. 2009) (denying summary judgment to detention officer on an excessive force claim where the plaintiff alleged the detention officer used a taser against him when he did not pose a threat); see also Williams v. Miller, No. 15
CV-0028-JED-FHM, 2016 WL 4537750, at *7-10 (N.D. Okla. Aug. 30, 2016) (relying on Tenth Circuit cases as well as the “weight of authority from other courts,” to find that it was clearly established that using a taser to compel compliance from a pretrial detainee who is neither acting aggressively nor actively resisting efforts to restrain him constitutes a violation of the detainee's constitutional rights).
While many, though not all, of these cases arise in the context of the Fourth or Fourteenth, rather than the Eighth, Amendment, the Tenth Circuit has explained that this does not make them inapplicable for purposes of qualified immunity. In Estate of Booker, a deceased pretrial detainee's estate raised an excessive force claim against the defendants under the Fourteenth Amendment. Estate of Booker, 745 F.3d at 418-21. At the district court level, the defendants filed a motion for summary judgment asserting qualified immunity. Id. at 416-17. The district court denied the motion, finding the plaintiff had created a question of fact regarding whether the defendants violated the decedent's constitutional rights, and that the law supporting that finding was clearly established. Id. at 41718.
On appeal, the Tenth Circuit affirmed the district court's denial of summary judgment. Id. at 424-27. Regarding whether the plaintiff's rights were clearly established, the Tenth Circuit discussed Fourth Amendment jurisprudence, explaining the following:
In the Fourth Amendment context, we have said that “because excessive force jurisprudence requires an all-things-considered inquiry with careful attention to the facts and circumstances of each particular case, there will almost never be a previously published opinion involving exactly the same circumstances. We cannot find qualified immunity whenever we find a new fact pattern.” Casey, 509 F.3d at 1284 (citation omitted) (quotations omitted). We have therefore “adopted a sliding scale to determine when law is clearly established” in which “[t]he more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.” Id. (quotations omitted).Id. at 427.
The defendants argued that because the plaintiff's claims were governed by the Fourteenth Amendment, it could not rely on cases arising under the Fourth Amendment and instead must “identify any due process case involving a use of force in a correctional setting that would have put any of the deputies on notice that the force that was used-either individually or collectively-was unconstitutional.” Id. at 427-28. The Tenth Circuit rejected this argument.
This “Fourth or Fourteenth Amendment” issue arose in Harris v. City of Circleville, 583 F.3d 356, 367 (6th Cir. 2009), where defendants argued that excessive force law was not clearly established because it was unclear whether the Fourth or Fourteenth Amendment applied. The Sixth Circuit rejected this “argument because even if there were some lingering ambiguity as to whether the Fourth or the Fourteenth Amendment applies in this precise context, the ‘legal norms'
underlying [plaintiff's] claims nevertheless were clearly established.” Id. Specifically, the Harris court observed, “there undoubtedly is a clearly established legal norm” precluding the use of violent physical force against a criminal suspect or detainee “who already has been subdued and does not present a danger to himself or others.” Id.
We agree with the Sixth Circuit's analysis, which is consistent with Supreme Court law. See Saucier v. Katz, 533 U.S. 194, 202-03 [] (2001) (“Assuming, for instance, that various courts have agreed that certain conduct is a constitutional violation under facts not distinguishable in a fair way from the facts presented in the case at hand, the officer would not be entitled to qualified immunity based simply on the argument that courts had not agreed on one verbal formulation of the controlling standard.”), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223 [] (2009); see also Bailey v. Pataki, 708 F.3d 391, 405 (2d Cir. 2013) (“For a right to be clearly established, it is not necessary that courts have agreed ‘upon the precise formulation of the standard.'” (quoting Saucier, 533 U.S. at 202 [])).Id. at 428 (emphasis added).
Applying the Tenth Circuit's reasoning herein, regardless of the constitutional amendment applicable to Plaintiff's claim, “the ‘legal norms' underlying the [excessive force analysis]-proportionality, injury, and motive- were clearly established at the time of” the incident underlying this case. Id. Tenth Circuit authority, as well as the weight of authority from other jurisdictions, supra, put Defendant Thomas on notice that continued use of a taser on a person who is no longer resisting is unconstitutional. Thus, the undersigned concludes that a reasonable jury could find that Defendant Thomas violated Plaintiff's Eighth Amendment rights, and that this right was clearly established at the time of the incident. Accordingly, the Court should deny Defendant Thomas' request for qualified immunity.
RECOMMENDATION
Based on the foregoing findings, it is recommended Defendants' Motion for Summary Judgment (Doc. No. 94) be GRANTED in part and DENIED in part. Specifically, the Court should grant summary judgment in favor of Defendants Rouse, Fritschow, and Klipp in both their individual and official capacities. The Court should deny Defendant Thomas' request for summary judgment as to Plaintiff's Eighth Amendment claim against Defendant Thomas in both his individual and official capacities.
The parties are advised of the right to file an objection to this Fourth Supplemental Report and Recommendation with the Clerk of this Court by March 20th , 2023, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. The failure to timely object to this Fourth Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Fourth Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.