Summary
declining to resolve whether a parolee who was placed in segregation had the same due process rights as a pretrial detainee or a convicted prisoner because his claim failed, as a matter of law, under both the Sandin and Bell standards
Summary of this case from Washington v. ByrdOpinion
Case Nos. 01-3134-JAR, 99-3356-JAR.
February 24, 2005
MEMORANDUM ORDER AND OPINION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT
Plaintiff Wesley I. Purkey, who presently is in federal custody, filed two civil rights actions stemming from his incarceration at the Wyandotte County Detention Center ("WCDC"). Named as defendants are the former and present Sheriff of Wyandotte County, Kansas as well as a number of other officials and personnel who worked at the WCDC during the time plaintiff was incarcerated there. This matter is presently before the Court on defendants' Motion for Summary Judgment (Doc. 90). Plaintiff has responded and also moves for summary judgment (Doc. 101). For the reasons set forth in detail below, the Court grants defendants' motion and denies plaintiff's motion.
Procedural Background
These cases have a protracted history. Plaintiff, appearing pro se and in forma pauperis, filed his first civil rights complaint on November 9, 1999, Case No. 99-3356, brought under 42 U.S.C. § 1983. Judge VanBebber dismissed plaintiff's complaint sua sponte, pursuant to 28 U.S.C. § 1915. The Tenth Circuit partially affirmed the district court, but remanded several of plaintiff's claims that were prematurely dismissed.
Purkey v. Green, Case No. 00-3218, 28 Fed. Appx. 736, 2001 WL 998057 (10th Cir. Aug. 17, 2001). The court affirmed plaintiff's claims of denial of access to courts, medical needs (tumor, ears), and placement in segregation in retaliation for filing internal grievances. The court remanded plaintiff's claims of retaliation for filing suit, medical needs (blisters, pinched nerve), excessive force and incitement to violence.
While the appeal was pending, plaintiff filed a second pro se action, Case No. 01-3134, raising additional civil rights issues stemming from a later time period. Defendants answered, and on June 19, 2002, filed a Martinez report to which plaintiff responded. Plaintiff filed a motion for summary judgment in the latter case, which this Court denied (Doc. 59). The cases were then consolidated (Doc. 68) and the Court appointed Stephen Kessler to represent plaintiff in the proceedings (Doc. 64). Discovery ensued and a Pretrial Order was entered on July 6, 2004 (Doc. 77). After defendants filed the pending Motion for Summary Judgment, Mr. Kessler was permitted to withdraw as counsel and plaintiff was given additional time to respond (Doc. 98).
I. Summary Judgment Standards
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." The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. 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."
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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. 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. "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of [its] pleading, but must set forth specific facts showing that there is a genuine issue for trial." Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. The Court must consider the record in the light most favorable to the nonmoving party. The Court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."
See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
See Anderson, 477 U.S. at 256.
Id.
See id.
See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984), cert. denied, 469 U.S. 1214 (1985).
Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
District of Kansas Rule 56.1 governs motions for summary judgment in this district, and provides that "[a]ll material facts set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the statement of the opposing party." Rule 56.1(b) provides as follows:
D. Kan. R. 56.1(a).
(1) A memorandum in opposition to a motion for summary judgment shall begin with a section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies, and if applicable, shall state the number of movant's fact that is disputed.
(2) If the party opposing summary judgment relies on any facts not contained in the movant's memorandum, that party shall set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by subsection (a), above.
The duty to admit or deny factual allegations is not too complex of a duty to require of a pro se litigant. Consequently, the failure of a plaintiff, pro se or otherwise, to admit or deny the veracity of facts set forth in a motion for summary judgment results in the facts being admitted.
Hammad v. Bombardier Learjet, Inc., 192 F. Supp. 2d 1222, 1231 n. 6 (D. Kan. 2002).
Stegall v. Great Am. Ins. Co., 996 F. Supp. 1060, 1063 (D. Kan. 1998).
In this case, plaintiff has disregarded the local rules, particularly the guidance provided by Rule 56.1. Contrary to the requirements of Rule 56.1(b)(1), plaintiff did not begin his Memorandum in Opposition with a section that contains a concise statement of material facts as to which he contends a genuine issue exists. Rather, he has scattered assertions of disputed fact throughout his memorandum, which fail to refer with particularity to those portions of the record upon which he relies or to state the number of defendants' fact that is disputed. Plaintiff also contravenes Rule 56.1(b)(2) by setting forth additional facts in the midst of his arguments, rather than in separately numbered paragraphs supported by references to the record, as required by Rule 56.1(a). Nonetheless, the court may, but is not obligated to, search for and consider evidence in the record that would rebut the defendants' evidence, but that plaintiff has failed to cite.
See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998).
Finally, the Court observes that although plaintiff has not complied with the district rules, this alone does not make summary judgment proper, for plaintiff's burden to respond arises only if the motion is properly supported in the first instance. "Accordingly, summary judgment is appropriate under Rule 56(e) only when the moving party has meet its initial burden of production under Rule 56(c)." If the evidence presented by the moving party does not satisfy this burden, "summary judgment must be denied even if no opposing evidentiary matter is presented." Thus, if a nonmoving party fails to properly respond to a motion for summary judgment, the court must first examine the moving party's submission to determine if it has met its initial burden of demonstrating that no material issues of fact remain for trial and that the moving party is entitled to judgment as a matter of law.
See Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002).
Id. at 1194.
Id.
II. Pro se Litigant Standard
In a pro se case, the pro se litigant's pleadings are to be liberally construed and are held to a less stringent standard. This rule requires the court to look beyond a failure to cite proper legal authority, confusion of legal theories, and poor syntax or sentence construction. The court is not authorized to become the advocate for the pro se litigant. "Despite the liberal construction afforded pro se pleadings, the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues." Moreover, plaintiffs are not excused from compliance with fundamental rules of procedure because they are proceeding pro se. Pro se litigants must follow rules of procedure, including local rules. Plaintiff's pro se status, in and of itself, does not prevent this Court from granting summary judgment.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Id. at 1110.
Id.
Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994), cert. denied, 513 U.S. 1090 (1995).
Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993); Campbell v. Meredith Corp., 260 F. Supp. 2d 1087, 1097 n. 10 (D. Kan. 2003).
See Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992).
III. Facts
As a threshold matter, the Court notes that in his Memorandum in Opposition to defendants' Motion for Summary Judgment, plaintiff has abandoned many of his claims. Because of the nature of these claims, many which overlap, the Court will set forth a comprehensive recitation of the undisputed facts. Plaintiff
All facts set forth are either uncontroverted or, if controverted, taken in the light most favorable, along with all reasonable inferences, to plaintiff. To the extent relevant, the factual disagreements between the parties will be noted. Additionally, it must be noted that a Martinez report, pursuant to Martinez v. Aaron, 507 F.2d 317, 318-19 (10th Cir. 1978), has been filed in this matter. The Tenth Circuit has said this report "is not only proper, but may be necessary to develop a record sufficient to ascertain whether there are any factual or legal bases for the prisoner's claims." Hall v. Bellmon, 935 F.2d at 1109. "On summary judgment, a Martinez report is treated like an affidavit, and the court is not authorized to accept its fact findings if the prisoner has presented conflicting evidence." Northington v. Jackson, 973 F.2d at 1521. "The pro se prisoner's complaint, when sworn and made under penalty of perjury, is also treated as an affidavit and, like the Martinez report, serves as evidence for a summary judgment determination." Spurlock v. Simmons, 88 F. Supp. 2d 1189, 1191 (D. Kan. 2000).
On October 30, 1998, plaintiff was booked into the WCDC on charges of first degree murder and state parole violations. On March 30, 2000, plaintiff pleaded guilty to the charge of first degree murder and aggravated robbery. Plaintiff was sentenced to life imprisonment with no parole until serving at least fifteen years on the first degree murder count and 206 months imprisonment on the aggravated robbery count, the sentences to run consecutively to each other and to plaintiff's prior sentences for his conviction in Sedgwick County District Court. On May 4, 2000, plaintiff was transferred to the custody of the Kansas Department of Corrections.
Defendants
Joni Mumma Cole was programs director at the WCDC from February to June 1999. From June 1999 to March 2003, she was a planning and research analyst for the Wyandotte County Sheriff's Office.
Michael Dailey was the Sheriff of Wyandotte County, Kansas from March 1995 to September 1999.
Dennis Davis was a lieutenant with the Wyandotte County Sheriff's Office and, from July 1998 to April 2001, was commander of its internal affairs unit.
Tyrone Davis has been a deputy sheriff with the Wyandotte County Sheriff's Office since September 1995. During his employment, Deputy Davis has been assigned to the WCDC.
Charles Dunlay was assistant counsel for the Unified Government of Wyandotte County/Kansas City, Kansas ("Unified Government") during the time plaintiff was detained at the WCDC.
Tammy Elliott was a programs assistant at the WCDC from February 2000 to March 2004.
Floyd Garner was classifications supervisor at the WCDC from December 1989 to March 2004.
LeRoy Green Jr. has been the Sheriff of Wyandotte County, Kansas since September 1999.
Loren Griffin has been a deputy sheriff with the Wyandotte County Sheriff's Office since September 1993.
Karla Harris was a classifications officer at the WCDC from March 1998 to January 2001.
Delores Herring was a programs assistant at the WCDC from October 1998 to January 2000. She has been programs director at the WCDC since January 2000.
J.B. Hopkins was administrator of the WCDC from February 1996 to July 2001.
Michelle Sese was an assistant fiscal accountant in the Wyandotte County Sheriff's Office from November 1996 to February 2002.
Denial of Appropriate Medical Care
On December 1, 1998, Deputy Tyrone Davis was working as the pod officer in F-pod, furnishing breakfast to the inmates. Davis tossed a milk carton underhanded to an inmate seated at a table next to plaintiff and struck plaintiff on the neck. Plaintiff was examined by a nurse at the infirmary, who observed no redness, swelling or bruising on his neck. The nurse determined that plaintiff did not need to be seen by a doctor, and gave plaintiff Motrin for his pain. Plaintiff subsequently requested to see the doctor for what he described as a "constant burning" in his neck, as well as stiffness in his neck and headaches. Plaintiff was unwilling to pay the $5 co-payment required to be seen at sick call, however, and refused to go to the clinic.
On March 29, 1999, a doctor examined a lump on plaintiff's left shoulder, which was determined to be a lipoma (fatty tumor). Plaintiff indicated that the lipoma had not caused him any problems and the doctor advised him that it was nothing to worry about and that no treatment was needed. Plaintiff did not complain about a "pinched nerve" or pain in his neck at this examination. In a grievance filed April 1, 1999, plaintiff complained about "the denial of medical treatment in-lieu of Dr. Gamble['s] refusal to examine a 'pinch nerve' in my left shoulder. . . ." Major Dewey Bond, the Operations Chief at the jail, responded to the grievance, and informed plaintiff that the nursing staff had assured him plaintiff was getting proper medical care as prescribed by the doctor, and advising him to talk to the doctor or submit an Inmate Communication Form ("ICF") explaining his concerns.
In July 1999, plaintiff was seen by a doctor for a blister on his foot. The doctor approved personal shoes for plaintiff, but that approval was subject to the medical administrator's authorization pursuant to WCDC policy. Personal shoes were not authorized for blisters, and plaintiff's request was denied. He was advised to request medical care or band-aids to treat his blisters.
Plaintiff alleges that defendant Griffin did not let him out of F-pod for an appointment he had with the doctor on January 7, 2000. Plaintiff saw the doctor for treatment of an ear problem on January 10, 2000.
Excessive Force
Plaintiff filed a grievance, which stated: "The 12/1/98 breakfast incident was the result of this officer [Davis] throwing a black inmate a carton of milk across F-Pod and striking me in the neck. . . . ." Deputy Davis contends that he did not toss the milk carton with the intent to harm plaintiff.
Inciting Violence
On December 2, 1998, plaintiff submitted a grievance alleging that Deputy Davis had complained to "a couple of inmates" about a grievance plaintiff had filed against him regarding the milk carton incident. Plaintiff complained that Deputy Davis stated to the inmates, "I can't believe Purkey filed that grievance and making trouble over that milk hitting him." Plaintiff complained that one of the inmates responded, "Let him out of his cell and we'll take care of this," to which Deputy Davis replied, "No, the hole is full now." Plaintiff requested a transfer to a different pod.
Plaintiff submitted an ICF the next day, alleging that he "was jammed up by four blacks tonight in front of [his] cell and threatened." Plaintiff stated that "[b]ased on the threats made tonight by 4 other inmates," he believed his life was in danger. Plaintiff related that two nights before an inmate had told him "they are waiting to get you." On December 4, 1998, plaintiff requested and was offered protective custody.
Placement in Segregation Without Due Process
In 1999 and 2000, inmates at the WCDC were assigned one of three custody levels — minimum, medium or maximum. The custody level depended primarily upon the severity of the offense charged, the inmate's history of serious offenses, and the inmate's escape history. An inmate's initial custody status was reviewed after 30 days and again after 60 days and thereafter every 90 days. After meeting with the inmate, a Classification Technician would recommend a custody level, which could include an override of the inmate's previous custody level to a lower or higher level if the inmate's behavior warranted. The decision to approve or disapprove a recommendation for an override of an inmate's custody level rested within the discretion of the Classification Supervisor. Inmates assigned to maximum custody were housed in F-pod.
Plaintiff was classified as maximum custody based on the serious charge against him, his history of felony convictions, and his previous attempt to escape from custody. During 1999, plaintiff was given overrides to medium and then to minimum custody based on his behavior.
On December 17, 1999, plaintiff was issued a staff ticket for creating a disturbance after he became verbally abusive with the doctor and nurses in the infirmary. Plaintiff stood to lose his eligibility for an override to minimum custody if convicted on the ticket. Later that day, plaintiff and defendant Harris had a conversation regarding the ticket wherein he offered to forego a civil suit against her if she would have the ticket dismissed. Harris explained to plaintiff that it was not possible for her to get the ticket dismissed and that he could receive another ticket for attempting to manipulate his housing assignment.
The next day, plaintiff sent Harris a letter regarding their conversation. Plaintiff referred to litigation being prepared against Harris for screening his legal materials which needed copying and offered to withdraw his civil suit in return for summary dismissal of the disciplinary ticket and a move to the minimum security G-pod. Harris spoke with plaintiff the next day and rejected his offer, which she considered to be a blatant attempt to manipulate his housing assignment. In the meeting, plaintiff indicated that he wanted to remain in minimum custody status and be moved to G-pod. Harris explained to plaintiff that if found guilty on the staff ticket, he would go to disciplinary segregation for a number of days and then to F-pod because he was in minimum custody on an override that was no longer applicable. Plaintiff pleaded guilty to the ticket at a disciplinary hearing held on December 31, 1999. As a sanction, plaintiff was required to spend several days in disciplinary segregation, and was subsequently moved to F-pod.
In an ICF to defendant Garner dated February 16, 2000, plaintiff complained that he was having "extreme problems from inmates who were involved in the incident stemming from November 31st 98 [sic] — and now [he was] having to deal with their gang banger bullies 14 or 15 of them." On February 17, 2000, Tammy Jeffries, a Classification Technician, performed a routine custody reassessment of plaintiff, and recommended that his maximum security classification be overridden to medium security. Jeffries' recommendation was disapproved by Classifications Supervisor Floyd Garner, who directed that plaintiff remain in maximum custody. That day, plaintiff was transferred from F-pod to the infirmary for observation, complaining of stress. When he was released from the infirmary on February 19, 2000, plaintiff refused to return to F-pod. As a consequence of his refusal, plaintiff was placed in administrative segregation in B-2, where he remained until March 24, 2000, when he was moved to A-pod (indoctrination). Plaintiff sent an ICF to Harris that day, questioning why he had been moved to A-pod. Defendant Garner responded to the ICF, stating, "You are classified as maximum custody. You will be assigned to F-pod. You will be reclassified in 90 days. If your behavior warrants, you may be stepped down in security level at that time."
On March 27, 2000, Garner advised the housing sergeant to move plaintiff to F-pod, but plaintiff refused to move. The Special Operations Response Team ("S.O.R.T.") was summoned, and plaintiff was handcuffed, shackled, and carried to F-pod by the S.O.R.T. team. Once in F-pod, a nurse checked plaintiff's physical condition.
On March 28, 2000, plaintiff reported in an ICF to defendants Green and Hopkins and Major Dewey Bond, the Operations Chief, that he was "just jumped by some of the same damn gang members in the gym that Davis incited against me months ago" and that he sustained knots on his head and bruises on his sides and back. In an ICF dated March 29, 2000, plaintiff stated that "[t]onight the pod officer let 3 gang bangers into my cell at supper." In his response to the Martinez report, plaintiff appended copies of two ICF's addressed to "Infirmary," in which he requested medical attention. Plaintiff also attached to his response a copy of an ICF dated April 1, 2000 in which he stated that he had sent medical requests for treatment without response, that he did not "know these gang banger's names — it is always different ones being ordered by their buddies," and that his ribs hurt and he had headaches. An ICF dated April 4, 2000, addressed to Hopkins, requested he be moved from F-pod. Plaintiff did not identify any individuals residing in F-pod who posed a legitimate threat to him, and defendants concluded that plaintiff's resistance to being housed in F-pod, like the deal he offered Harris in December 1999, was an attempt at manipulation.
On April 12, 2000, apparently after a guard observed injury to his face, plaintiff was moved from F-pod to protective custody in B-1. In a note received by defendant Dennis Davis on April 13, 2000, plaintiff complained that he was being harassed by fellow inmates. He specifically complained that "Fleetwood and Jason Fraiser has all the gangers on 1 2 putting on their harassment — keeping me up all night and day making noise on both sides of me, as well as up above — I had (2) confrontations today —." The note described the origin of the problem as follows:
I have another (3) weeks and I am out of your jail — this all started behind that J.M. dude in H who I use to live next to in F-Pod — he was in #10 and I was in #9. He told all his buddies that I gave Det. Howard a statement against him in his double murder proceedings — now it is all blown out of shape — I am not putting up with this B.S. —
Based on the specific allegations in the note, defendant Garner authorized plaintiff to remain in protective custody until his transfer to the custody of the Department of Corrections in May 2000. Conditions of Confinement
Plaintiff asserts that he was subjected to filthy conditions in his B-2 cell, the walls and floor of which were contaminated with urine and fecal matter, that the water in his cell was completely shut off, his toilet was not usable, he was not provided with toothpaste, tooth brush or a drinking cup, and he was forced to shower in handcuffs.
Defendants assert that the cells in B-2 were occasionally soiled by inmates, but were promptly cleaned and disinfected, and that jail trustees regularly picked up the trash that inmates would constantly throw from their cells to the common areas. Inmates in B-2 were not given cleaning supplies to clean their cells out of concern that they could use these supplies as weapons. Individual cells were cleaned by trustees each week. During the week, showers were cleaned daily.
To ensure officer safety and maintain security, inmates in B-2 segregation are required to shower in handcuffs. To give the inmate room to maneuver, two sets of handcuffs are joined together and fastened to the inmates wrists. Inmates are not chained to the ankles when showering. Inmates shower in a stall and are concealed from the view of the officer and other inmates by a white shower curtain. There is a six inch step at the entrance of each shower stall, and the stalls have safety strips and are lighted. Plaintiff asserts that this practice caused him to fall in the shower. Defendants assert that the officer who was present at the time plaintiff fell, observed what appeared to be plaintiff propelling himself out of the shower, rather than slipping and falling in the shower.
Beginning on March 3, 2000, after a rash of incidents of inmates flooding their cells by stopping up their toilets, defendant Hopkins ordered that water to the toilets in B-2 be shut off, except for two 30-minute periods a day. Water to the sinks in the cell was never shut off. On March 8, 2000, plaintiff submitted an ICF to defendants Green and Hopkins, complaining about the toilet water being shut off in B-2. Defendant Hopkins responded that plaintiff had refused to move out of B-2 and his complaint would be resolved if he would comply with instruction and move to F-pod.
On March 20, 2000, plaintiff submitted an ICF to defendants Hopkins and Green, complaining of being denied commissary privileges. Defendant Hopkins responded that inmates in B-2 do not receive commissary, and plaintiff had refused to be housed in another pod. Plaintiff subsequently submitted an ICF to defendant Harris, demanding that the policy governing access to commissary by inmates housed in segregation be changed. Harris responded to plaintiff's allegations, stating that plaintiff had placed himself in segregation by refusing to move to his assigned housing, and that the restrictions plaintiff complained of did not apply to inmates housed in general population.
Retaliation/Access to Courts
Plaintiff alleges an unidentified deputy tore up his first complaint. He attached to his November 9, 1999 complaint affidavits from two inmate witnesses, neither of whom states that he actually saw a Sheriff's deputy tear up plaintiff's complaint.
As programs director, defendant Cole was responsible for supervising all programming for inmates at the WCDC, which included furnishing legal materials from the law library, providing copies of case law when requested, making photocopies of legal documents, and notarizing papers for inmates. Cole supervised two programs assistants, one of whom was defendant Herring.
In 1999, requests by inmates for photocopies of case law were forwarded to the County Counselor's office, which would make the copies and return them to Programs for delivery to the inmate. During the first part of 1999, plaintiff requested numerous copies of cases. The County Counselor's Office considered plaintiff's requests excessive and recommended he be charged 15 cents per page for photocopies of case law. Plaintiff submitted five ICF's complaining of the decision to charge him for copies of cases, culminating in defendant Cole advising him that any further communications on the issue would be considered an abuse of the ICF system. Plaintiff continued to request and receive materials from the law library, as well as photocopies of legal documents and notary services, at no charge. At no time did defendants Hopkins or Garner tell defendant Herring that documents requested by plaintiff for photocopying had to be screened, reviewed and approved by them.
On February 22, 2000, defendant Herring attempted to deliver photocopies of documents to plaintiff, who frightened her by yelling and kicking his cell door. Defendant Elliott wrote a report documenting plaintiff's conduct, and also reported that he had become verbally upset with her and that, out of concern for her safety, she would leave plaintiff's requested legal items for a deputy to deliver to him in the future. Several days later, another inmate told Elliott that copies of cases he had requested were actually for plaintiff. Plaintiff was ultimately informed that effective March 2, 2000, the WCDC would not produce copies of legal documents or photocopy materials for him, and that plaintiff should make requests for copies through his attorney.
Plaintiff filed another series of ICF's relating to approximately 400 documents plaintiff gave Sergeant Pierce to send to the ABC news program 20/20 in a postage prepaid envelope that had been sent to him by the show's producer. Sergeant Pierce failed to mail the packet, which was left out on the property room table. At plaintiff's request, the documents were recopied and mailed to ABC 20/20 on or about March 6, 2000, a delay of approximately nine days.
As a classification technician, defendant Harris's responsibilities included evaluating the custody levels of incoming inmates at the WCDC, making recommendations to the classifications supervisor regarding custody levels and housing assignments of inmates, as well as conducting periodic reviews of inmates' custody levels. From October to December 1999, Harris was the acting classification supervisor in the absence of defendant Floyd Garner. In October 1999, a classification technician came to defendant Harris about a lawsuit that plaintiff wanted photocopied. Harris asked plaintiff what he needed done, and he told her that he had a federal civil rights complaint that he needed copied and that he had not been able to get anyone to do so. Plaintiff stated that he needed at least 20 copies of the 26-page complaint, and Harris told him she would see what she could do. After getting authorization from the jail administrator, defendant J.B. Hopkins, Harris made the copies and delivered them to plaintiff along with a large manila envelope. Harris made an additional copy of the complaint and placed it in plaintiff's classification file, to avoid future allegations that plaintiff's legal materials had been destroyed. Plaintiff was upset that Harris had placed a copy of the complaint in his file.
In November 1999, plaintiff requested copies of another civil rights complaint. By then, a policy had been implemented by the Programs Department limiting the number of copies that an inmate could make at one time. Because plaintiff's request exceeded the limit, defendant Harris asked defendant Hopkins how to proceed, and was directed to talk to the Assistant County Counselor, defendant Dunlay. Dunlay advised Harris to have plaintiff submit the complaint with an ICF requesting the number of copies he required. Plaintiff did so, and his request was approved. Harris made the copies and delivered them to plaintiff along with manila envelopes. She did not place a copy of the complaint in his classification file, as it had previously upset him. As an Assistant Fiscal Accountant, defendant Sese's responsibilities included administering inmate accounts. Sometime in 1999, plaintiff requested certification of the balance in his inmate account. Sese forwarded the certification and a copy of the account receipt to plaintiff, who replied with an ICF disputing the balance. Sese sent plaintiff another inmate account balance receipt, along with an adding machine tape totaling the credits and debits on his account, and informed him that if he had any questions, he should speak with the lieutenant on duty. Sese did not refuse to respond or delay responding to plaintiff's request, nor did anyone instruct her to do so.
Finally, plaintiff alleges that "Sheriff Deputy York" called him out of his cell and threatened him for making allegations against Deputy Tyrone Davis. No person with the last name of York was employed as a deputy sheriff with the Wyandotte County Sheriff's Office in 1998 or 1999.
IV. Analysis
A. Issues Presented /Pretrial Order
Plaintiff was represented by counsel, who appeared at the Pretrial Conference and prepared the Pretrial Order. The Pretrial Order sets forth nine claims: (1) defendants Green, Hopkins, and Griffin were deliberately indifferent to serious medical needs of plaintiff in violation of the Eighth Amendment; (2) defendant Tyrone Davis acted maliciously and with intent to harm plaintiff in violation of the Eighth Amendment when he threw a milk carton and struck plaintiff in December 1998; (3) defendant Tyrone Davis violated plaintiff's rights under the Eighth Amendment by inciting others to violence against him; (4) defendants Green, Hopkins, Garner, Harris, and Dennis Davis were deliberately indifferent to the substantial risk of serious harm to plaintiff arising from Officer Davis's actions and such indifference violated the Eighth Amendment; (5) the placement of plaintiff in segregated confinement by defendants Green, Hopkins, Garner and Harris without due process constituted a significant and atypical hardship in violation of plaintiff's liberty interest under the Fourteenth Amendment; (6) the inhumane conditions of plaintiff's confinement in segregation constituted cruel and unusual punishment in violation of the Eighth Amendment and an atypical and significant deprivation of his due process rights by Green, Hopkins, Garner and Harris; (7) defendants Green, Hopkins, Herring, Elliott, Cole, Dunlay, Harris and Sese violated plaintiff's Sixth Amendment right to access to courts by denying him legal materials; (8) defendants retaliated against plaintiff for the exercise of his rights in violation of the First and Fourteenth Amendments by (a) denying him law library privileges and legal materials; (b) threatening to discipline him for further attempts to obtain legal materials; (c) tearing up his first complaint; (d) screening his subsequent civil rights actions and placing a copy in his file; (e) refusing him envelopes for mailing legal actions; (f) refusing to timely provide accounting statements required for filing his actions in forma pauperis; (g) calling him out of his cell late at night and threatening him for pursuing legal actions; (h) inciting other prisoners against him; (i) placing him in segregation; (j) assigning him to F-pod; and (k) interfering with his correspondence to ABC 20-20 ; and (9) restrictions on outgoing mail by defendants Dennis Davis, Green, Hopkins, Garner, Harris, and Dunlay were not necessary to protect an important government interest and violated his rights under the First Amendment.
In his response, plaintiff contends that he "ascribes to the substance of the matters before the court, as presented at the pretrial status, but others are clearly erroneous and contested to [sic]." Specifically, plaintiff contends that: (1) claim no. 3, the Eighth Amendment claim against Tyrone Davis for incitement to violence, fails to state a First Amendment claim that the incitement was in reprisal for filing a grievance against defendant Davis; (2) claim no. 4, the Eighth Amendment claim for deliberate indifference to substantial risk of serious harm to plaintiff arising from Tyrone Davis's action, fails to clarify that such deliberate indifference stems from defendants' forcible move of plaintiff back to F-pod on March 26, 2000; (3) claim no. 5, the Fourteenth Amendment claim for placing plaintiff in segregated confinement without due process, is not limited to the 1998 segregation, but also includes the February 19 through March 24, 2000 placement in B-2 segregation; (4) claim no. 6, the Eighth Amendment claim for conditions of confinement, also extends to the 2000 B-2 segregation; and (5) claim no. 8, the First and Fourteenth Amendment retaliation claims, also include the claims stemming from the 2000 placement in B-2 segregation.
The Court construes plaintiff's request that the pretrial order be modified because it "rest [sic] on erroneous facts . . ." as a motion to amend the pretrial order. The pretrial order "'measures the dimensions of the lawsuit, both in the trial court and on appeal.'" Its purpose is to "'insure the economical and efficient trial of every case on its merits without chance or surprise.'" "A pretrial order, . . . is the result of a process in which counsel define the issues of fact and law to be decided at trial, and binds counsel to that definition." A pretrial order may be amended only to prevent manifest injustice.
Hullman v. Board of Trustees of Pratt Community College, 950 F.2d 665, 668 (10th Cir. 1991) (quotations omitted).
Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1208 (10th Cir. 2002) (quotation omitted).
R.L. Clark Drilling Contractors, Inc. v. Schramm, Inc., 835 F.2d 1306, 1308 (10th Cir. 1987).
This circuit applies a four-factor analysis in determining whether to allow the amendment of a pretrial order: (1) the prejudice or surprise in fact to the party; (2) the ability of that party to cure such prejudice; (3) the extent to which the amendment would disrupt the orderly and efficient trial of the case; and (4) bad faith or willfulness by the moving party to comply with the court's pretrial order. In applying these factors, the paramount concern must be to assure "the full and fair litigation of claims." Modification should be allowed "when the danger of surprise is small and a failure to amend might result in an injustice to the moving party." Defendants do not object to plaintiff's request, and in fact, address all of the issues raised and/or clarified by plaintiff. Accordingly, plaintiff's motion to modify the Pretrial Order is granted.
See Koch v. Koch Industries, Inc., 203 F. 3d 1202, 1222 (10th Cir. 2000).
Joseph Manf'g Co., Inc. v. Olympic Fire Corp., 986 F.2d 416, 420 (10th Cir. 1993).
6A Wright, Miller Kane, Federal Practice and Procedure: Civil 2d § 1527, at 287 (1990).
B. Section 1983
Pursuant to 42 U.S.C. § 1983, any person who "under color of . . . [law] . . . subjects or causes to be subjected, . . . any [person] . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." Section 1983 was enacted to provide protections to those persons wronged by the misuse of governmental power. While the statute itself creates no substantive civil rights, it does provide an avenue through which civil rights can be redeemed. To state a claim for relief in a section 1983 action, a plaintiff must establish that he was, (1) deprived of a right secured by the Constitution or laws of the United States, and (2) that the alleged deprivation was committed under color of state law. C. Qualified Immunity Defense
See Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995).
See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
Although plaintiff's complaints indicate he is seeking relief from each defendant in both their official and individual capacities, the Pretrial Order makes no mention of official capacity claims, nor do the parties address any such claims in their motions or memoranda. The Court notes in any event that plaintiff has not met the burden of showing: (1) that a local government employee committed a constitutional violation, and (2) that a government policy or custom was the moving force behind the constitutional deprivation. Plaintiff has failed to meet this burden. Further, any declaratory or injunctive relief initially sought by plaintiff is mooted by his transfer from WCDC to another detention facility. Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997).
Defendants allege that to the extent plaintiff is proceeding against them in their individual capacity, they are clothed with qualified immunity. Because qualified immunity will apply to each of the specific claims, the Court will first set forth the principles outlined by the Supreme Court and the Tenth Circuit.
When government officials abuse their power, section 1983 suits allow those wronged an effective method of redress. While permitting the possible vindication of a plaintiff's rights, non-meritorious suits exact a high cost upon society and those government officials charged with enforcing the law. "[T]o submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties."
See Anderson v. Creighton, 483 U.S. 635, 638 (1987) (citing Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982)).
Id. at 638.
Horstkoetter v. Department of Public Safety, 159 F.3d 1265, 1277 (10th Cir. 1998) (internal quotations omitted) (citing Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)).
In order to balance these competing interests, government officials performing discretionary duties are afforded qualified immunity shielding them from civil damages liability. Qualified immunity protects these officials unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.
See Anderson v. Creighton, 483 U.S. at 638.
See Wilson v. Layne, 526 U.S. 603, 609 (1999); Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998).
"The framework for analyzing claims of qualified immunity on summary judgment is well settled." When a defendant has pled qualified immunity, the plaintiff bears the burden of, (1) coming forward with sufficient facts to show that the defendants' actions violated a federal constitutional or statutory right and, (2) demonstrating the right allegedly violated was "clearly established" at the time the conduct occurred. The first step is "to determine . . . whether the plaintiff has alleged a deprivation of a constitutional right at all." "Only after determining that [the plaintiff] has alleged a deprivation of a constitutional right, does this court ask whether the right allegedly violated was clearly established at the time of the conduct at issue."
Baptiste, 147 F.3d at 1255.
See Horstkeotter, 159 F.3d at 1277-78; Baptiste, 147 F.3d at 1255.
County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998); Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995).
Baptiste, 147 F.3d at 1255 n. 6.
1. Violation of Constitutional Right
The Court must first determine whether each of plaintiff's allegations, if true, state a claim for a violation of a constitutional right. Determining whether a plaintiff has stated a claim for a constitutional violation is purely a legal question. "Despite the inevitable factual issues that become intertwined in the characterization of a plaintiff's precise constitutional claims, this court cannot avoid the legal issue by simply framing it as a factual question."
See Romero, 45 F.3d at 1475 (relying in part upon Siegert v. Gilley, 500 U.S. 226, 231-32 (1991)).
See id.
Keeling v. Schaefer, 181 F. Supp. 2d 1206, 1218 (D.Kan. 2001) (citing Archer v. Sanchez, 933 F.2d 1526, 1530, n. 7 (10th Cir. 1991).
2. Clearly Established
In the event a plaintiff states a violation of a constitutional right, the Tenth Circuit requires the contours of the right at issue to have been sufficiently clear that a reasonable official would have understood that what he was doing violated that right. This standard must be used in a particularized manner, which means that there must ordinarily be a Supreme Court or Tenth Circuit opinion on point or "clearly established authority" from other courts. A plaintiff's burden at this stage has been described as "quite heavy," as it is insufficient to merely allege a violation of a general legal principle. A plaintiff must do more than simply identify in the abstract a clearly established right and allege that the defendants have violated it. Rather, plaintiff must: (1) articulate the constitutional right, (2) state, with specificity, the defendants' conduct that has allegedly violated this right, and (3) demonstrate a substantial correspondence between the conduct in question and prior law establishing that the defendants' actions were clearly prohibited. If such a showing is not made, summary judgment is proper. D. Specific Claims
Watson v. University of Utah Med. Ctr., 75 F.3d 569, 577 (10th Cir. 1996).
Wilson v. Meeks, 52 F.3d at 1552.
Watson, 75 F.3d at 577.
Baptiste, 147 F.3d at 1255.
Romero, 45 F.3d at 1475.
Id.
The Pretrial Order specifically states that, because plaintiff was a state parolee who was being held for parole violations, the Eighth Amendment standards applicable to convicted prisoners govern his claims for denial of medical care, use of excessive force, incitement to violence, deliberate indifference, and inhumane conditions of confinement (Doc. 77, at 5-6). Plaintiff continues to assert that to the extent he was a pre-trial detainee at the time of the alleged incidents, his claims are for violation of his rights under the Fourteenth Amendment. Regardless, the standards to be applied are the same, whether plaintiff's claims are evaluated under the Eighth or Fourteenth Amendments. See Lopez v. LeMaster, 172 F.3d 756, 759 n. 2 (10th Cir. 1999); see also Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998); McClendon v. City of Albuquerque, 79 F.3d 1014, 1022 (10th Cir. 1996).
1. Indifference to Plaintiff's Medical Needs
Plaintiff claims that defendants Green and Hopkins violated his Eighth Amendment right to medical care by failing, (1) to allow him to wear tennis shoes after such shoes had been approved by the WCDC physician for treatment of blisters; (2) to ensure that the doctor examined his pinched nerve neck injury; and (3) to ensure that the doctor prescribed Feldene. He also claims that defendant Griffin violated the Eighth Amendment by failing to send him to a scheduled medical appointment in a timely manner. Plaintiff specifically abandons these claims in his response to defendants' motion for summary judgment (Doc. 90, at 6), and the Court grants summary judgment on these claims.
2. Excessive Force
Plaintiff claims that when Deputy Davis struck him in the neck with a tossed milk carton, he used excessive force, which violated his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff specifically abandons this claim in his response to defendants' motion for summary judgment (Doc. 90, at 6), and the Court grants summary judgment on the excessive force claim.
3. Incitement to Violence
Plaintiff claims that Deputy Davis intentionally incited inmates to harm him in retaliation for his having filed a grievance over the tossed milk carton incident. In reversing Judge Van Bebber's dismissal of this claim, the Tenth Circuit set forth the elements of an Eighth Amendment incitement-to-violence claim:
A prisoner states an Eighth Amendment violation by alleging that a prison official intended to cause him serious harm by inciting other inmates to do violence against him. Northington v. Jackson, 973 F.2d 1518, 1525 (10th Cir. 1992). While an 'idle threat' of impending physical harm that is not carried out will not suffice to state an Eighth Amendment claim, an imminent threat of serious harm, even though injury never actually occurs, will suffice. See id. at 1524; Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir. 1980); see also Benefield v. McDowall, 241 F.3d 1267, 1269-70 (10th Cir. 2001) (holding that an Eight Amendment claim had been slated that survived a defense of qualified immunity when a prisoner alleged he had been labeled a 'snitch' by a correctional officer).
Purkey v. Green, 2001 WL 998057 at *7.
"[P]rison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners." "A prison official's deliberate indifference to a substantial risk of serious harm to an inmate violates the Eight Amendment." The Supreme Court has clarified the "deliberate indifference" standard, explicitly rejecting a purely objective test and holding that the Eighth Amendment deliberate indifference standard has a subjective component. A prison official who "knows of and disregards an excessive risk to inmate health or safety" is deliberately indifferent for these purposes. Thus, in order to establish a cognizable Eighth Amendment claim for incitement-to-violence, a plaintiff "must show that he is incarcerated under conditions posing a substantial risk of serious harm," the objective component, and that the prison official was deliberately indifferent to his safety, the subjective component.
Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citation omitted, alteration in original).
Id. at 828 (internal quotations omitted).
Id. at 837.
Id.
Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001) (citing Farmer, 511 U.S. at 834).
The law in this circuit addressing this issue was well-established at the time of defendant Davis's conduct. In Northington, the court specifically held that labeling an inmate a "snitch" satisfies the Farmer standard, and constitutes deliberate indifference to that inmate. Other circuits have also recognized that labeling an inmate a snitch has the potential for great harm and may violate constitutional guarantees.
102 F.3d at 1567.
See Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989) (reversing grant of summary judgment for defendants where inmate produced evidence tending to show prison officials called him a snitch in order to subject him to life-threatening retaliation by other inmates); Harmon v. Berry, 728 F.2d 1407, 1409 (11th Cir. 1984) (per curiam) (holding that claim that prison officials labeled inmate a snitch, thereby exposing him to inmate retaliation, could not be dismissed before service); Gullatte v. Potts, 654 F.2d 1007, 1012 (5th Cir. 1981) (remanding Eighth Amendment snitch claim to determine whether defendant knew or should have known danger associated with snitch label and whether defendant took reasonable steps to protect inmate from that danger).
Accepting as true plaintiff's allegations, Deputy Davis remarked to a couple of inmates, "I can't believe Purkey filed that grievance and making trouble over that milk hitting him." When one of the inmates responded to Davis's comment by stating, "Let him out of his cell and we'll take care of this," and Davis replied, "No, the hole is full now." The Court finds that this evidence falls short of that needed to establish an Eighth Amendment claim for incitement-to-violence. It is uncontroverted that Davis replied "no" when the inmates offered to "take care of" plaintiff. Moreover, Davis's statement is distinguishable in that he commented that plaintiff had filed a grievance against him, a corrections officer. By contrast, in cases finding violations of the Eighth amendment, the defendant prison official told other inmates that the plaintiff was a "snitch," that is, that he informed on other inmates. The Court would surmise that many inmates have grievances against corrections officers.
Similarly, assuming, arguendo, that plaintiff has established an incitement-to-violence claim under the Eighth Amendment, he has failed to demonstrate that a reasonable person in Davis's position would have known that his conduct was unlawful in the situation he confronted. The law in this circuit addressing this issue was well-established at the time of defendant Davis's conduct. In each of the "snitch" cases reviewed by the Court, the inmate was informing on other inmates, not against prison officials. Accordingly, a reasonable officer in Deputy Davis's position would not have known that his conduct violated plaintiff's constitutional rights, as there is no obvious danger associated with a reputation as a prisoner who complained about prison guards.
Northington, 102 F.3d at 1567.
Plaintiff also claims that defendants violated his First Amendment rights by placing him in segregation in retaliation for exercising his right to free speech. This claim also fails. First, as discussed below, plaintiff's placement in segregation in February 2000 did not implicate a liberty interest. Second, to prevail on his claim for retaliation, plaintiff "'must prove that "but for" the retaliatory motive, the incidents to which he refers . . . would not have taken place.'" It is uncontroverted that plaintiff was placed in segregation because he refused to return to F-pod after being released from the infirmary.
Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998).
4. Failure-to-protect
Plaintiff claims that defendants Green, Hopkins, Garner, Harris and Dennis Davis were deliberately indifferent to the substantial risk of serious harm to him arising from Deputy Davis's actions and that such indifference violated the Eighth Amendment. This claim relates to defendants' forcibly moving him back to F-pod after he refused to return. Plaintiff specifically abandons this claim against defendants Harris and Dennis Davis in his response to defendants' motion for summary judgment (Doc. 90, at 6), and the Court grants summary judgment on the failure-to-protect claim with respect to these defendants.
Defendant also asserts this claim against "defendant Bond," who was never served. In any event, the analysis relative to summary judgment would be appropriate with respect to Bond as well.
In its opinion on appeal of Judge Van Bebber's decision dismissing Case No. 99-3356, the Tenth Circuit noted that plaintiff's placement in protective custody on December 4, 1998, after he complained of being threatened by other inmates, precluded a failure to protect claim against jail officials other than defendant Tyrone Davis. The court stated that "the fact that other officials ultimately took steps to protect the plaintiff from violence by other inmates would bar a claim against them in their individual or official capacities for allowing unconstitutional prison conditions to continue . . ." Plaintiff claims in Case No. 01-3134 that defendants Green, Hopkins and Garner exhibited deliberate indifference to the threat he faced from other inmates, as a result of Deputy Davis's actions in December 1998, when they forcibly returned him to F-pod on March 27, 2000.
Purkey v. Green, 2001 WL 998057, at *9.
In the Pretrial Order, plaintiff also asserts this claim against defendants Harris and Dennis Davis. Defendant Harris is not a party to Case No. 01-3134. Plaintiff did not make a failure-to-protect claim against defendant Dennis Davis in Case no. 01-3134.
To establish a failure to protect claim under the Eighth Amendment, plaintiff must allege specific facts showing he was incarcerated under conditions posing a substantial risk of serious harm, the objective component of the claim, and that defendants were deliberately indifferent to plaintiff's safety, the subjective component of the claim. The Supreme Court has defined the deliberate indifference standard as equating to "'recklessness,' in which 'a person disregards a risk of harm of which he is aware.'" Deliberate indifference requires more than a showing of simple, or even heightened, negligence. In addition, "prison officials who actually knew of a substantial risk to inmate health and safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted."
Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003).
Id. (quoting Farmer, 511 U.S. 825, 836-37 (1994)).
Id.
Farmer, 511 U.S. at 844.
The Court finds that plaintiff's generalized concern regarding his fear of "gang banger bullies" and returning to F-pod was insufficient to establish the substantial risk of serious harm necessary to support his claim. The facts alleged by plaintiff fail to demonstrate the existence of a known or obvious risk except in the most conclusory of terms. While plaintiff stated that he feared someone would attack him if he returned to F-pod, he did not provide prison officials with the names of any of his would-be attackers. Thus, there is no evidence that defendants were aware of facts from which the inference could be drawn that he would face a substantial risk of harm in a move back to F-pod. Rather, the evidence demonstrates that plaintiff's refusal to move to F-pod appeared to be an attempt to manipulate his housing assignment. Moreover, once plaintiff made specific allegations identifying the inmates who had threatened him, he was placed in protective custody, where he was permitted to remain until his transfer to the Department of Corrections. By placing plaintiff in protective custody, defendants responded reasonably to the risk to plaintiff's safety.
See Jones v. Bernard, 2003 WL 22301219 (10th Cir. Oct. 8, 2003) (allegation by black inmate, who was attacked by member of Aryan Brothers, that "it is well known" at the prison that if an Aryan Brother is placed in a confined space with a black inmate, a violent confrontation will ensue, failed to demonstrate the existence of a known or obvious risk); Whiteman v. Ortiz, 1999 WL 1268342 (10th Cir. Dec. 30, 1999) (inmate's generalized concern regarding his fear of "Mexican gang members" was insufficient to establish substantial risk of harm).
Farmer, 511 U.S. at 844-45.
Assuming, arguendo, that plaintiff has established a constitutional violation, defendants are entitled to qualified immunity because it would not have been clear to a reasonable person in their position that moving plaintiff to F-pod on March 27, 2000 violated his Eighth Amendment rights. This is not a case in which it was obvious that plaintiff would be subjected to a substantial risk of harm if returned to F-pod. Instead, the Court finds that defendants reasonably questioned the credibility of plaintiff's claims that moving him to F-pod would place him at serious risk. Defendants' reasonableness is supported by the fact that, (1) plaintiff never specifically identified any of the inmates who allegedly threatened or attacked him or whom he feared; (2) plaintiff claimed that the threat was related to the alleged incitement of other inmates by Deputy Davis over a year before; and (3) plaintiff's previous attempt to manipulate his housing assignment. Moreover, the Court observes that plaintiff himself has claimed that threats to plaintiff from other inmates stemmed not from the grievance over the milk carton incident, but rather, plaintiff giving information to authorities on an inmate's involvement in a double murder.
Defendants' motion for summary judgment on the failure to protect claim is granted.
5. Placement in Segregation Without Due Process
Plaintiff claims that defendants Green, Hopkins, Garner and Harris placed him in segregated confinement without due process of law. Specifically, plaintiff claims that he was placed in segregated confinement without due process in December 1998 after he complained that Deputy Davis had incited inmates against him and again in February 2000 after he was transferred to the infirmary for observation and subsequently refused to return to F-pod. Plaintiff also claims that defendants violated the First Amendment by placing him in segregation without due process in retaliation for exercising his right to free speech. Plaintiff specifically abandons this claim against defendant Harris in his response to defendants' motion for summary judgment (Doc. 90, at 6) and the Court grants summary judgment on the due process/retaliation claim with respect to this defendant.
Defendant also asserts this claim against "defendant Bond," who was never served. In any event, the analysis relative to summary judgment would be appropriate with respect to Bond as well.
The Tenth Circuit rejected plaintiff's claim that his 1998 placement in segregated confinement violated his constitutional rights. The court construed plaintiff's claim as one for retaliation, rather than deprivation of due process, and affirmed the dismissal of the claim because plaintiff could not show that filing a grievance was the "but for" cause of his segregation. The court stated, "[c]ertainly it was necessary to remove Mr. Purkey from the dangerous condition in which other inmates were threatening to beat him, and it was not unreasonable per se to place him in segregation instead of the four or five inmates who threatened him." Extending the same reasoning, the Court finds that plaintiff has failed to demonstrate that "but for" the retaliatory motive, he would not have been placed in segregation. It is uncontroverted that plaintiff was placed in segregation because he refused to return to F-pod after he was released from the infirmary.
Purkey v. Green, 2001 WL 998057 at *9.
Id. (citing Peterson v. Shanks, 149 F.3d at 1144).
Id.
The court further finds that plaintiff's placement in administrative segregation in February 2000 did not violate due process. Prison disciplinary proceedings are not part of a criminal prosecution procedure and therefore the "full panoply of rights due a defendant" does not apply." Due process, nonetheless, requires a certain degree of procedural protections before a prison inmate can be deprived of a protected interest.
See Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
See id.; Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996) (in order to provide adequate due process in a prison disciplinary setting, the prisoner must receive, (1) advance written notice of the disciplinary charges, (2) an opportunity to call witnesses and present documentary evidence in his defense, and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action).
In Sandin v. United States, the Supreme Court held that the plaintiff's discipline in segregated confinement was not the sort of atypical, significant deprivation that would give rise to a liberty interest entitled to due process protection. The Court further held that because the disciplinary action would not inevitably affect the duration of plaintiff's sentence under state parole regulations, procedural due process protection was not required. In this case, plaintiff was placed in segregation on February 19, 2000 because he refused to return to F-pod, his assigned housing. It is uncontroverted that plaintiff could have returned to the general population, but refused to do so. Because plaintiff was free to return to the general population, his placement in segregation did not "impose atypical and significant hardship on [him] in relation to the ordinary incidents of prison life." Even if plaintiff was not free to return to the general population, Sandin makes clear that placement in administrative segregation, such as occurred here, does not give rise to a liberty interest. Because no liberty interest was infringed, no due process hearing was required. In the absence of a demonstrated liberty interest and, therefore, a constitutional violation, plaintiff's due process claims are foreclosed.
Id. at 486.
Id.
Id. at 484 (1995).
Plaintiff continues to argue that he was a pretrial detainee and thus Bell v. Wolfish rather than Sandin governs his due process claim. Even if the Court were to analyze plaintiff's claim under this standard, it would still find no violation. The central inquiry of such a claim is whether the challenged condition of confinement amounts to a "punishment." "[I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to 'punishment.'" Maintaining jail security and effectively managing a detention facility are valid objectives which may justify the imposition of certain restrictions. "Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these conditions, courts should ordinarily defer to their expert judgment in such matters."
441 U.S. 520 (1979).
Id. at 535.
Id. at 539.
Id. at 540.
Id. at 540 n. 23 (quotation omitted).
For purposes of this motion, the Court accepts the veracity of plaintiff's factual statements. His conclusory allegations are another matter. Despite his allegations to the contrary, there is no evidence of an expressed intent by the defendants to punish or discipline plaintiff. The Court finds no reason to second guess the defendants' expert judgment in this matter. Placing plaintiff in segregation after he refused to return to his assigned housing clearly served a legitimate governmental purpose.
Finally, assuming, arguendo, that plaintiff's right to due process was violated, it would not have been clear to a reasonable person in defendants' position that plaintiff was entitled to a due process hearing when he was free to leave segregated confinement, but refused to do so. As discussed above, once plaintiff specifically identified his would-be attackers in F-pod, he was permitted to remain in protective custody. Defendants' motion for summary judgment on this claim is granted.
6. Conditions of Confinement
Plaintiff claims that he was subjected to unconstitutional conditions while confined in the segregation unit at WCDC between February 19 and March 24, 2000. Plaintiff complains that the segregation unit contained trash and human waste that was not cleaned on a regular basis; that, for a period of time, water to the cells was turned off except for two 30-minute periods a day; that he was denied cleaning supplies; and that the unconstitutional conditions threatened his health and that of others in the unit. Plaintiff also complains about the policy of requiring inmates in segregation to shower while in restraints. Plaintiff specifically abandons this claim against defendant Harris in his response to defendants' motion for summary judgment (Doc. 90, at 6), and the Court grants summary judgment on the conditions of confinement claim with respect to this defendant.
Plaintiff did not assert a conditions of confinement claim in Case No. 99-3356 and, presumably, had no complaint about the conditions of his confinement in segregation prior to January 24, 2000, when his complaint was last amended.
Defendant also asserts this claim against "defendant Bond," who was never served. In any event, the analysis relative to summary judgment would be appropriate with respect to Bond as well.
To prevail on a conditions of confinement claim under the Eighth Amendment, an inmate must establish that, (1) the condition complained of is "'sufficiently serious'" to implicate constitutional protection, and (2) prison officials acted with "'deliberate indifference' to inmate health or safety." In order to satisfy the first requirement, "the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." With regard to the second requirement, the Supreme Court has explained that "deliberate indifference entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with the knowledge that harm will result." Sufficiently Serious Conditions
Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
Id.
Id. at 836-37.
The first requirement is that the conditions complained of must be "sufficiently serious" to implicate constitutional rights. The Eighth Amendment's prohibition on cruel and unusual punishment "'does not mandate comfortable prisons,' and conditions imposed may be 'restrictive and even harsh.'"
Id. at 834.
DeSpain v. Uphoff, 264 F.3d 965, 973 (10th Cir. 2001) (citations and quotations omitted).
"The standard described [by the Supreme Court] reflects a balance between judicial respect for the exigencies of running a prison, and the 'broad and realistic concepts of dignity, civilized standards, humanity and decency' embodied in the Eighth Amendment." The analysis should not be based on "a court's idea of how best to operate a detention facility." At the same time, Eighth Amendment protections "draw [their] meaning from the evolving standards of decency that mark the progress of a maturing society," a lofty standard. This requires that prison officials "provide humane conditions of confinement by ensuring inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and by taking reasonable measures to guarantee the inmates' safety."
Id. (citations omitted).
Rhodes v. Chapman, 452 U.S. 337, 351 (1981).
Id. at 346.
Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (quoting Barney Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998)).
"An inquiry into conditions of confinement by necessity relies on the particular facts of each situation; the 'circumstances, nature, and duration' of the challenged conditions must be carefully considered. While no single factor controls the outcome of these cases, the length of exposure to the conditions is often of prime importance.
DeSpain, 264 F.3d at 974 (quotation omitted).
Not surprisingly, human waste has been considered particularly offensive so that "courts have been especially cautious about condoning conditions that include an inmate's proximity to [it]." However, the Court does not find that plaintiff's complaints concern sufficiently serious conditions to implicate constitutional protection. The Tenth Circuit has held that a situation involving filthy cells, poor lighting, inadequate ventilation or air cooling, and unappetizing food "simply [did] not rise to the level of a constitutional violation" where prisoners were exposed to the conditions for only forty-eight hours. In general, the severity and duration of deprivations are inversely proportional. Here, plaintiff alleges that he was subjected to trash and fecal matter in the commons area of the segregated unit. Trustees would regularly pick up the trash. As for the fecal matter, it is unlikely that plaintiff was often exposed in the commons area because inmates were confined to their cells most of the day and did not have unsupervised access to this area. Further, turning off the water to the toilets twice a day was temporary, and plaintiff's exposure to his own feces was limited in duration.
McBride v. Deer, 240 F.3d 1287, 1292 (10th Cir. 2001) (citation omitted).
Barney, 143 F.3d at 1312 (listing cases in which a few days spent in unsanitary conditions did not violate the Eighth Amendment).
DeSpain, 264 F.3d at 974.
Official Knowledge of Conditions
The second, subjective portion of the Farmer test requires that prison officials show "deliberate indifference" to the existence of any risk inherent in exposure to the challenged conditions. As the Supreme Court explained this requirement:
[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
Farmer, 511 U.S. at 837.
This awareness requirement exists because "prison officials who lacked knowledge of a risk cannot be said to have inflicted punishment" in a manner that violates the Eighth Amendment. On the other hand, a plaintiff "need not show that a prison official acted or failed to act believing that harm actually would befall an inmate," as long as the official should have understood the possibility that harm might ensue. The test requires both knowledge and disregard of possible risks, a mens rea on par with criminal recklessness. If an official is aware of the potential for harm but takes reasonable efforts to avoid or alleviate that harm, he bears no liability under this standard.
Id. at 844.
Id. at 842.
Id. at 836.
Id. at 844; DeSpain, 264 F.3d at 975.
Assuming, arguendo that plaintiff has established that the conditions in the WCDC posed a substantial risk of serious harm to his health, there is no evidence that defendants were deliberately indifferent to it. To the contrary, the evidence is that trustees regularly picked up the trash in the commons area and cleaned the individual cells on a routine basis. The restrictions on water to the toilets was a temporary measure enacted in an effort to stop the flooding by inmates. Finally, as noted previously, plaintiff was given the opportunity to return to the general population and avoid exposure posed by the conditions in B-2.
Finally, the Tenth Circuit previously addressed in an unpublished decision the WCDC's policy of requiring inmates in segregation to shower in restraints, finding that it did not evidence deliberate indifference to an inmate's health or safety. The Court agrees with the Circuit's analysis, and finds the policy constitutional.
Sanders v. Hopkins, 131 F.3d 152, 1997 WL 755276, *2 (10th Cir. Dec. 5, 1997).
7. Access to Courts
Plaintiff claims that defendants Green, Hopkins, Herring, Elliott, Cole, Dunlay, Harris and Sese violated his Sixth Amendment right of access to the courts. In Case No. 99-3356, the Tenth Circuit upheld the dismissal of denial of access claims brought by plaintiff against these defendants, concluding that plaintiff had failed to show actual injury. Thus, plaintiff's claims for denial of access are precluded to the extent they are based on conduct occurring prior to January 24, 2000, the date of plaintiff's amended complaint. Further, plaintiff specifically abandons this claim against defendants in his response to defendants' motion for summary judgment (Doc. 90, at 6), and the Court grants summary judgment on the denial of access claim respect to these defendants.
Purkey v. Green, 2001 WL 998057 at *6.
8. Restrictions on Outgoing Mail
Plaintiff claims that defendants Dennis Davis, Green, Hopkins, Garner, Harris and Dunlay unconstitutionally placed restrictions on his outgoing mail. While it is not clear from the Pretrial Order what restrictions plaintiff claims are unconstitutional, it appears to concern 400 pages of documents intended for the television news program, 20/20. Plaintiff specifically abandoned this claim in his response to defendants' motion for summary judgment (Doc. 90, at 6), and the Court grants summary judgment on the restriction on outgoing mail claim.
9. Retaliation/First Amendment
Plaintiff claims that defendants violated the First and Fourteenth Amendments by retaliating against him for filing complaints and grievances. Specifically, plaintiff claims that defendants retaliated against him by (1) denying him law library privileges and materials; (2) threatening discipline for further attempts to obtain materials; (3) tearing up his first complaint; (4) screening his subsequent civil rights actions and placing a copy in his file; (5) refusing him envelopes for mailing legal actions; (6) refusing to timely provide accounting statements required for filing his action in forma pauperis; (7) calling him out of his cell late at night ant threatening him for pursuing legal actions; (8) inciting other prisoners against him; (9) placing him in segregation (other than February 19 through March 24, 2000); (10) assigning him to F-pod (other than March 27, 2000); and (11) interfering with correspondence to ABC 20/20. Plaintiff specifically abandons nine of these claims in his response to defendants' motion for summary judgment (Doc. 90, at 5), and the Court grants summary judgment on these retaliation claims.
Plaintiff continues to assert a claim for, (1) screening his lawsuits prior to photocopying them, and (2) placing a copy of plaintiff's lawsuit in his jail file. "Prison officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights." On the other hand, "[o]bviously, an inmate is not inoculated from the normal conditions of confinement experienced by convicted felons serving time in prison merely because he has engaged in protected activity." Thus, to prevail on his claims of retaliation, plaintiff "'must prove that "but for" the retaliatory motive, the incidents to which he refers . . . would not have taken place.'"
Peterson v. Shanks, 149 F.3d at 1144 (quoting Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990)).
Id.
Id. (quoting Smith, 899 F.2d at 949-50).
Plaintiff cannot show that filing a complaint and/or grievance against jail officials was the "but for" cause of the alleged adverse actions. The evidence is uncontroverted that defendants did not "screen" or censor plaintiff's lawsuits, deny him access to the courts, or otherwise prejudice him by their actions. Rather, defendant Harris sought authorization from defendants Hopkins and Dunlay to make the numerous photocopies plaintiff had requested, and authorization was granted. Certainly, it was reasonable for WCDC officials to inspect plaintiff's documents prior to photocopying them. Moreover, plaintiff cannot assert a privacy interest in a complaint he intended to file with the court and, presumably, intended for defendants to read at some point when he named them as parties. Further, the evidence is uncontroverted that defendant Harris placed a copy of the lawsuit in plaintiff's file because he previously had complained that his legal materials had been destroyed, and she wanted to ensure that she had a copy in the event he made such an allegation again. Simply placing a copy of the complaint in plaintiff's file was not an adverse action sufficient to sustain a retaliation claim.
Defendants' motion for summary judgment is granted on these claims.
V. Plaintiff's Counter-motion for Summary Judgment
Plaintiff seeks summary judgment on his condition of confinement claims and his claims relative to placement in segregation. For the reasons set forth above, plaintiff's motion is denied.
IT IS THEREFORE ORDERED BY THE COURT that defendants' Motion for Summary Judgment (Doc. 90) is GRANTED and plaintiff's Motion for Summary Judgment (Doc. 101) is DENIED.
IT IS FURTHER ORDERED THAT plaintiff's Motion for Order of Transportation for Trial (Doc. 109) is DENIED as moot.
IT IS SO ORDERED.