Opinion
Case No. 99-3293-JWL.
September 28, 2001
MEMORANDUM ORDER
Donald Lee filed this lawsuit alleging that, in retaliation for the plaintiff exercising his right of access to the courts, officers of the Wisconsin Department of Corrections ("Wisconsin defendants") and the United States Penitentiary at Leavenworth, Kansas ("federal defendants") conspired to murder or seriously injure him and deliberately failed to protect him from attacks by other inmates. In an order issued on September 22, 2000, this court dismissed the Wisconsin defendants from the case and dismissed all claims made against the federal defendants but for First and Eighth Amendment claims against Officers Walker, Nikes, and Preston. The plaintiff filed an amended complaint on October 25, 2000, naming additional parties as defendants. This court adopted, in part, the recommendation of Magistrate Judge Walter in its January 29, 2001, order and dismissed all claims made in the amended complaint but for the First and Eighth Amendment claims against Officers Walker, Nikes and Preston and a First Amendment claim against Lieutenant Acosta.
The four remaining federal defendants have filed a motion for summary judgment (Doc. 114). Also before the court are a motion by the plaintiff asking that the court not assign motions to the magistrate (Doc. 136) and a motion by the plaintiff (Doc. 156) seeking to withdraw his earlier motion for reconsideration and injunctive relief (Doc. 141). The court grants the summary judgment motion with regard to the First Amendment claims because the defendants have presented evidence showing that they acted without knowledge that the plaintiff had exercised his right of access to the courts and the plaintiff has not pointed to evidence sufficient for a reasonable jury to conclude that the defendants had such knowledge. The court grants the summary judgment motion with regard to the alleged Eighth Amendment violation by Officer Preston on October 8, 1997, because the plaintiff has not pointed to any evidence indicating that he acted with deliberate indifference. The court, however, denies summary judgment with regard to Officers Walker and Nikes because material questions of fact remain regarding whether they acted with deliberate indifference to the safety of the plaintiff or acted knowing that the plaintiff would be assaulted. The court also grants summary judgment with regard to the alleged Eighth Amendment violation on October 14, 1997, because the plaintiff has not pointed to evidence showing that any of the defendants acted with deliberate indifference towards his safety. Finally, the court denies the plaintiff's request that no future motions be assigned to the magistrate and grants his motion to withdraw his earlier motions.
• Summary judgment standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, the movant may simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
• First Amendment claims
"[I]t is well established that prison officials must provide inmates access to the courts, and prison officials may not harass or retaliate against an inmate for exercising his right of access to the courts." Penrod v. Zavaras, 94 F.3d 1399, 1404 (10th Cir. 1996). To survive summary judgment, an "inmate claiming retaliation must `allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights.'" Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). An allegation of retaliation fails if the inmate presents "no evidence that the defendants' alleged retaliatory motives were the `but for' cause of the defendants' actions." Id.
Defendants Walker, Preston, Nikes and Acosta filed affidavits with their summary judgment motion wherein each of the four states that he was unaware that the plaintiff had filed a lawsuit against the Illinois Department of Corrections, the action that the plaintiff alleges caused the defendants to retaliate. The plaintiff fails to point to any evidence indicating that the four defendants were aware that the lawsuit was filed. The plaintiff directs the court to his amended complaint which alleges that while the plaintiff was in custody at Leavenworth, the Clerk of the United States District Court for the Northern District of Illinois "sent Lee a court decision . . . entitled Campbell v. Illinois Department of Corrections, et. al. The defendants intercepted this decision which was favorable to Lee and did not release it to Lee until August 19, 1997 at 8:30 p.m. some 4 hours after regular mail call." The allegation does not indicate which defendants "intercepted" the mail or that the plaintiff has personal knowledge or other evidence that would be admissible at trial showing that the piece of mail was read by any of the defendants. Testimony that the piece of mail was delivered four hours late is not a sufficient basis for a reasonable jury to conclude that the defendants read the piece of mail or had knowledge of the lawsuit. The amended complaint also alleges that on August 20, 1997, "Lt. Finnerty threatened [sic] in front of Booker, John, Mildner and Pearce, stating that Lee should have thought of all [sic] those problems [sic] he was complaining of before he assaulted those officers in Illinois . . ." The allegation does not implicate any of the four named defendants and does not indicate that the guards knew that the plaintiff had filed a lawsuit. Even accepting as true the plaintiff's claim that the 20-page order contained a reference to the assault, it would be a leap in logic to assume that the guards learned about the assault from reading the plaintiff's mail, as opposed to some other source. No reasonable jury could reach such a conclusion.
The plaintiff also does not point to any evidence indicating that the acts of placing the plaintiff in recreation cages on October 8, 1997 and October 14, 1997, the conduct that the plaintiff claims was retaliatory, would not have occurred but for the plaintiff filing a lawsuit against the Illinois Department of Corrections. Absent evidence of causation, showing the acts were taken in retaliation for the plaintiff filing the lawsuit, the plaintiff cannot survive summary judgment. Peterson, 149 F.3d at 1144. Because the plaintiff fails to point to evidence showing that the defendants knew that the plaintiff had filed a lawsuit against the Illinois Department of Correction or to evidence showing that the acts of placing the defendant in recreation cages where he was assaulted were in retaliation for filing the lawsuit, summary judgment must be granted in favor of the defendants with respect to all First Amendment claims.
• Eighth Amendment claims
"A prison official's deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 828 (1970). A prison official who "knows of and disregards an excessive risk to inmate health or safety" is deliberately indifferent for these purposes. Id. at 837.
In his amended complaint, the plaintiff alleges that on October 8, 1997, Officer Walker took the plaintiff from his cell and into a recreation cage with an inmate who assaulted the plaintiff. The plaintiff alleges that he protested being placed in the cage and told Officer Walker that he had problems with one of the other inmates in the cage. According to the complaint, Walker placed the plaintiff into the cage in handcuffs and the plaintiff was immediately attacked by the other inmate. The plaintiff alleges that the attack lasted "4 or 5 minutes" and that he "called for help" but that Officer Walker was "standing there just watching the attack" and officer Nikes was "peeping [sic] from the side of the control center" but not attempting to stop the attack. The plaintiff alleges that he saw Officer Nikes laughing as the plaintiff was led away from the cage.
Along with the motion for summary judgment, Officer Walker submitted an affidavit in which he states that within a matter of one or two seconds after the assault began, he began to unlock the door to the cage to separate the inmates. He also denies placing the plaintiff in the cage knowing that he would be assaulted. In response, the plaintiff points to the amended complaint. The court presumes that the plaintiff would testify consistently with the allegations made in the complaint. Thus, material questions remain as to whether Officer Walker placed the plaintiff in the cage knowing that he would be assaulted and as to whether Officers Walker and Nikes attempted to stop the assault within a reasonable amount of time. Northington v. Jackson, 973 F.2d 1518, 1525 (10th Cir. 1992) ("In this case we have more than an allegation of obdurate or wanton disregard for Mr. Northington's safety; we have an allegation that Deputy Marin intended to do harm to Mr. Northington by inciting inmates to beat him. When an inmate is able to prove such intent, it is as if the guard himself inflicted the beating as punishment."); McGill v. Duckworth, 944 F.2d 344, 347 (7th Cir. 1991) ("If prison officials [assigned plaintiff] so that a bigger inmate would have a better chance to rape him, then it is as if the officials inflicted that pain and humiliation themselves."). The questions are material to the issue of whether Officers Walker and Nikes acted with deliberate indifference to the safety of the plaintiff. Summary judgment, therefore, is not appropriate with regard to the Eighth Amendment claim against Officers Walker and Nikes. Because, however, the plaintiff does not point to any evidence indicating that Officer Preston acted with deliberate indifference, summary judgment is granted in favor of Officer Preston with regard to the October 8, 1997, assault.
The plaintiff also alleges in his amended complaint that on October 14, 1997, he was taken from his cell by Officer Preston and placed handcuffed in a recreation cage. Thereafter, the plaintiff alleges that another prisoner was placed into the cage. Both prisoners were released from their handcuffs and, according to the plaintiff, the other prisoner attacked him. The plaintiff alleges that "the defendants knew that [the other prisoner] had previously yelled life threatening threats directly at Lee in front of some 20 officers."
Along with the motion for summary judgment, Officer Preston submitted an affidavit in which he states that he did not place the plaintiff in the recreation cage knowing that he would be assaulted. The only evidence that the plaintiff offers to controvert this claim is the conclusory allegation that the defendants knew that the other inmate had threatened the plaintiff. The allegation does not indicate that the four defendants were among the 20 officers that heard the other inmate threaten the plaintiff and plaintiff does not point to any admissible evidence showing that the defendants otherwise knew of such threats. Furthermore, the allegation that such threats were "previously" made is insufficient evidence for a reasonable jury to conclude that Officer Preston placed the plaintiff in the recreation cage on October 14, 1997 knowing that he would be assaulted. Only if the plaintiff had pointed to evidence showing that the threats were made with reasonable proximity to the act of placing him in the cage with the other inmate would the allegation support an inference that Officer Preston knew that an assault was likely. See, e.g., Smith v. Maschner, 899 F.2d 940, 949 (10th Cir. 1990) (holding that the close proximity between an inmate filing a lawsuit and disciplinary action was sufficient to survive summary judgement on claim of retaliation). The general allegation that a threat was "previously" made is insufficient to survive summary judgment. See, e.g., Benson v. Cady, 761 F.2d 335, 342 (7th Cir. 1985) (holding that the five-months between a prisoner filing a lawsuit and the allegedly retaliatory act was not sufficiently close to justify an inference of retaliatory motive). Thus, the court grants summary judgment for all defendants with regard to the alleged Eighth Amendment violation on October 14, 1997.
• Other motions
Mr. Lee also requests that the court not refer any other motions to the magistrate judge (Doc. 136). According to Mr. Lee, he finds it difficult to "defend against the defendants in one brief and then have to in a second brief filed objections to any recommendations from a magistrate." Pursuant to 28 U.S.C. § 636(b)(1)(A), "a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action." Mr. Lee has not presented a valid objection to this court continuing its general practice of referring pretrial motions to a magistrate judge and his motion is denied. No additional burden is placed on Mr. Lee by the fact that a magistrate judge decides a pretrial motion instead of this court. The decision of a magistrate judge is final and this court may only reconsider "where it has been shown that the magistrates order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A).
Mr. Lee filed a motion (Doc. 156) seeking to withdraw his previous motion for reconsideration and for injunctive relief (Doc. 141). Seeing no objection by the defendants, the court grants the motion.
IT IS THEREFORE ORDERED that the defendants' summary judgment motion (Doc. 114) is granted as to all First Amendment claims against the defendants, as to the Eighth Amendment claim against Officer Preston regarding the October 8, 1997 assault, and as to the Eight Amendment claims related to the October 14, 1997 assault, but denied as to the Eight Amendment claims against Officers Walker and Nikes related to the October 8, 1997 assault. The court denies the plaintiff's motion asking that the court not assign motions to the magistrate (Doc. 136) and grants the plaintiff's motion (Doc. 156) seeking to withdraw his earlier motion for reconsideration and injunctive relief (Doc. 141). The court now refers this case to the magistrate for resolution of any remaining pre-trial issues.
IT IS SO ORDERED.