Opinion
Case No. 01-3280-KHV
February 6, 2004
MEMORANDUM AND ORDER
Willie Simkins, who is currently an inmate at the Hutchinson Correctional Facility ("HCF"), brings pro se suit against Louis E. Bruce, Warden of HCF, Sam Cline, Deputy Warden of HCF, the HCF mail room staff and six unknown defendants. Under 42 U.S.C. § 1983, plaintiff claims that defendants violated his constitutional rights to due process and access to the courts. Specifically, plaintiff complains that while he was "out to court" in another jail in Boulder, Colorado, defendants did not forward his legal mail relating to Case Number 99-3283, and that he therefore lost that case. Plaintiff seeks compensatory damages for the loss of Case Number 99-3283 plus punitive damages and attorney fees. This matter comes before the Court onDefendants' Motion For Summary Judgment (Doc. #58) filed September 2, 2003. For reasons stated below, the Court sustains defendants' motion.
I. Summary Judgment Standard
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; accord Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law."Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, Okla, 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l. Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990):see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. See Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing the motion for summary judgment. See Deepwater Invs., Ltd, v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turnup at trial." Conaway v. Smith 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
II. Facts
The following facts are either uncontroverted or construed in a light most favorable to plaintiff.
Plaintiff's response to defendants' motion does not comply with D. Kan. Rule 56.1(b). The Court, however, recognizes that pro se litigants should not succumb to summary judgment merely because they fail to comply with the technical requirements involved in defending such a motion. See Woods v. Roberts, No. 94-3159, 1995 WL 65457, at *2 (10th Cir. Feb. 17, 1995); Hass v. United States Air Force, 848 F. Supp. 926, 929 (D. Kan. 1994). The Court has therefore diligently searched plaintiff's brief and sworn complaint to determine whether genuine issues of material fact preclude the entry of summary judgment for defendants.
On August 23, 1999, plaintiff filed an action against the Saline County sheriff's department and the Saline County jail, alleging violation of constitutional rights. See Complaint (Doc. #1) filed in Simpkins v. Saline County Sheriff, et al., No. 99-3283. Specifically, plaintiff alleged that defendants denied him adequate medical care, provided unsanitary and overcrowded living conditions, and denied him access to a law library.
On January 10, 2000, plaintiff was admitted to Kansas Department of Corrections ("KDOC") to serve a sentence of 105 months for aggravated indecent liberties with a child. On February 1, 2000, KDOC assigned plaintiff to HFC. Four weeks later, on February 29, 2000, defendants filed their answer and Martinez report in Case No. 99-3283. Plaintiff received copies on March 3, 2000, but he filed no response to either the answer or the Martinez report.
Plaintiff is currently in custody of the KDOC, and is scheduled for release on March 23, 2006.
In pro se prisoner litigation, the Tenth Circuit endorses the completion and filing of a "Martinez report" where the prison constructs an administrative record which details the factual investigation of the events at issue. See Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978). The Martinez report "is treated like an affidavit, and the court is not authorized to accept the factual findings of the prison investigation when the plaintiffhas presented conflicting evidence." Greeny. Bransoa, 108 F.3d 1296, 1302 (10th Cir. 1997) (citations omitted). The pro se prisoner's complaint, when sworn and made under penalty of perjury, is also treated as an affidavit; like the Martinez report, it serves as evidence for a summary judgment determination. See id.
Defendants assert that plaintiff was somehow at fault for not responding to the answer and Martinez report. See Memorandum In Support Of Defendants' Motion For Summary Judgment ("Defendants' Memorandum") (Doc. #59) filed September 2, 2003 at 2, 11. Federal procedural rules, however, do not require or permit plaintiff to file a response to the answer or Martinez report.See Rule 7(a), Fed.R.Civ.P.; Jackson v. Simmons, No. 98-3230-KHV, 2000 WL 1760982, *3 (D. Kan. Nov. 17, 2000).
On March 3, 2000, plaintiff was transferred from HFC to another jail in Boulder, Colorado, for a court appearance. More than a year later, on March 20, 2001, plaintiff returned to HFC. While plaintiff was in Colorado, he remained under KDOC custody.
Although the record is not clear, it appears that plaintiff was transferred to Colorado so that he could serve as a trial witness.
When plaintiff transferred to Colorado, he did not give the HFC mail room a forwarding address. General KDOC orders for HFC require that when an inmate is transferred "out to court" and does not provide a forwarding address, the mail room shall forward his mail "to the county jail in which the court resides, unless some other address is supplied by the court of jurisdiction." Exhibit 7 to Report In "Martinez v. Aaron" Investigation Civil Rights Complaint ("Martinez Report") (Doc. #32) filed October 21, 2002 at 10.
The orders apparently refer to the court to which the inmate has been sent for his appearance.
While plaintiff was in Colorado, he did not inform the Court or opposing counsel of his change of address. Consequently, the Court and counsel sent correspondence regarding Case No. 99-3283 to plaintiff's address at HFC.
The HFC mail room did not forward plaintiff's mail to Colorado, but held his mail for more than a year until his return. Patricia Keen, mail room supervisor at HCF, was trained to hold legal mail for inmates who were sent "out to court" until they returned to HCF. Keen did not understand that under KDOC orders, she was suppose to forward plaintiff's mail to the Colorado jail. Had plaintiff left a forwarding address, Keen would have forwarded his mail at no cost to him.
On April 10, 2000, defendants in Case No. 99-3283 filed a motion for summary judgment and mailed a copy to plaintiff at HFC. Plaintiff did not receive a copy or file a response to the motion.
On July 21, 2000 the Court sustained defendants' motion for summary judgment in Case No. 99-3283, noting that plaintiff had not filed a response. See Memorandum And Order (Doc. #20) filed July 20, 2000 at 3. Under D. Kan. Rule 56.1, the Court deemed admitted defendants' fact allegations. Id. The Court also "glean[ed] further relevant facts from plaintiff's sworn complaint." Id. Having done so, it concluded as a matter of law that (1) the Saline County sheriff's department was not a proper party to the lawsuit; (2) plaintiff had not shown that the Saline County jail had a policy or custom of delaying medical care, providing unsanitary living conditions or denying law library materials to inmates; and (3) plaintiff's allegations did not rise to the level of a constitutional violation. See id. at 5-10.
On July 11, 2001, plaintiff filed his complaint in this case. Plaintiff has not filed an administrative grievance regarding his claims in this case.
III. Analysis
Defendants assert that they are entitled to summary judgment because (1) plaintiff has not exhausted administrative remedies; (2) plaintiff failed to provide his new address to the Court in Case No. 99-3283; (3) plaintiff cannot show actual injury, i.e. that he likely would have succeeded on the merits in Case No. 99-3283; and (4) defendants are entitled to qualified immunity because they did not act with malicious intent.
A. Failure To Exhaust Administrative Remedies
Defendants argue that plaintiff has not exhausted administrative remedies. The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), imposes a mandatory exhaustion requirement for inmates who bring Section 1983 claims regarding prison conditions. Specifically, Section 1997e(a) provides that:
[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e. The Supreme Court has interpreted the language of Section 1997e(a) broadly, holding that "prison conditions" encompass "all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). The statute applies whenever the prison administrative process could provide some relief, even if it could not provide the money damages which plaintiff demands. See Booth v. Churner, 532 U.S. 731, 734 (2001). The exhaustion requirement is mandatory; the Court is not authorized to dispense with it. See Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1167 n. 5 (10th Cir. 2003) (citing Beharry v. Ashcroft, No. 02-2171, 2003 WL 1989608, at *5 (2d Cir. May 1, 2003) and Perez v. Wis. Dep't of Corr., 182 F.3d 532, 536 (7th Cir. 1999)).
Kansas Administrative Regulations ("K.A.R."), § 44-15-101 to 44-15-106, provide a four-step administrative grievance procedure for inmates in Kansas prisons. The procedure applies to "a broad range of matters that directly affect the inmate," including complaints regarding prison policies and conditions, actions by employees and inmates, and incidents within the facility. K.A.R. § 44-15-101a(d)(1). Under the regulations, an inmate must first attempt to informally resolve the grievance. If the inmate is unsuccessful, he or she may submit a grievance report to an appropriate unit team leader, followed by a grievance report to the warden of the facility and a grievance report to the Kansas secretary of corrections. See K.A.R. § 44-15-101. Under K.A.R. § 44-15-101b, an inmate must file a grievance within 15 days from the date of discovery. Regardless of the date of discovery, an inmate may not file a grievance more than one year after the event. See K.A.R. § 44-15-101b.
The parties do not dispute that plaintiff did not utilize the prison grievance procedure. Thus the issue is whether the administrative process could have afforded plaintiff some relief. In Booth, the Supreme Court ruled that under Section 1997e, inmates who seek money damages must complete a prison administrative process that can provide some sort of relief, even if no money. See Booth, 532 U.S. at 734. In so holding, the Supreme Court found that Congress used the phrase "such administrative remedies as are available" to require procedural exhaustion "regardless of the fit between a prisoner's prayer for relief and the administrative remedies possible." Id. at 740. The Supreme Court reasoned that Congress could have imposed the exhaustion requirement to allow prison officials an opportunity to take some type corrective action that might preclude litigation, even if they could not pay damages to the inmate. Id. at 737. The Supreme Court also noted that such a requirement could produce "administrative results that would satisfy at least some inmates who start out asking for nothing but money, since the very fact of being heard and prompting administrative change can mollify passions even when nothing ends up in the pocket." Id. It further noted that the requirement could potentially "filter out some frivolous claims and foster better-prepared litigation." Id.
According to plaintiff's own complaint, he has not sought administrative relief with respect to his claims. See [Second Amended] Civil Rights Complaint Pursuant To 42 U.S.C. § 1983 (Doc. #49) filed May 20, 2003 at 5. Moreover, plaintiff presents no evidence which controverts defendants' affidavit that he has not filed an administrative grievance regarding his claims. See Exhibit 5 toMartinez Report (Doc. #32).
In Booth, the parties agreed that the grievance system authorized some responsive action with respect to plaintiff's complaint. Here, defendants provide no evidence that under the grievance procedure, they could have provided relief or taken action in response to plaintiff's claims. The moving party on summary judgment bears the initial burden of showing the absence of any genuine issue of material fact. See Celotex, 477 U.S. at 323; Hicks, 942 F.2d at 743; see also Casanova v. Dubois, 304 F.3d 75, 78 n. 3 (1st Cir. 2002) (PLRA exhaustion is affirmative defense which defendant must prove). The burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial only after the moving party meets its burden. See Applied Genetics, 912 F.2d at 1241; see also Matsushita Elec., 475 U.S. at 586-87; Bacchus Indus., 939 F.2d at 891. Because defendants have not shown that the administrative process could have afforded plaintiff some relief, they are not entitled to summary judgment based on plaintiff's failure to exhaust administrative remedies.
With respect to available relief, the regulations state:
The remedies available to the inmate may include action by the warden of the facility to correct the problem or action by the secretary of corrections to cause the problem to be corrected. Relief may include an agreement by facility officials to remedy an objectionable condition within a reasonable, specified time, or to change a facility policy or practice.
K.A.R. § 44-15-101a(e).
B. Plaintiff's Failure To Provide Court New Address
Defendants assert that plaintiff is at fault for not informing the Court of his change in address. Under D. Kan. Rule 5.1(c), "[e]ach attorney or party appearing pro se is under a continuing duty to notify the clerk in writing of any change of address or telephone number." In one paragraph, defendants argue that plaintiff's failure to comply with D. Kan. Rule 5.1(c) should preclude his constitutional claims against them. Defendants do not identify any legal theory or cite any legal authority to support their assertion. See Defendants' Memorandum at 6. The Court will not construct legal arguments or theories for defendants. See Schunk v. United Fin. Mortg. Corp., No. 00-2137-KHV, 2001 WL 474299, at *4 n. 12 (D. Kan. Apr. 11, 2002) (citing Scott v. Hern, 216 F.3d 897, 910 n. 7 (10th Cir. 2000)). Defendants are not entitled to summary judgment on this ground.
C. Plaintiff Cannot Show Actual Injury
Defendants assert that plaintiff cannot recover because he cannot show actual injury. The Court agrees. In order to show that defendants violated his constitutional right to access the courts, plaintiff must show actual injury. See Lewis v. Casey, 518 U.S. 343.351 (1996). In other words, plaintiff must show that defendants' failure to forward his mail caused him to lose Case No. 99-3283. See id. Plaintiff provides no evidence that had he received a copy of defendants' motion for summary judgment in Case No. 99-3283, he would have filed a meritorious response. Accordingly, defendants are entitled to summary judgment on this ground.
D. Qualified Immunity
Alternatively, defendants are entitled to qualified immunity because plaintiff has not shown that they acted with malicious intent. In analyzing qualified immunity, the Court applies a two-part framework.See Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 516 (10th Cir. 1998). First, the Court decides whether plaintiff has shown that defendants violated a statutory or constitutional right. See id. at 516. If so, the Court determines whether "the right was clearly established such that a reasonable person in [defendants'] position would have known that his or her conduct violated that right." Id.
In order to show that defendants violated his constitutional right to access the courts, plaintiff must show that defendants acted intentionally, not negligently. See Richardson v. McDonnell, 841 F.2d 120, 122 (5th Cir. 1988); Guffey v. Trago, 572 F. Supp. 782, 786 (N.D. Ind. 1983). Plaintiff provides no such evidence. Accordingly, defendants are entitled to qualified immunity. See Florence v. Booker, No. 013152, 2001 WL 1592703, at *1 (10th Cir. Dec. 14, 2001).
IT IS THEREFORE ORDERED that Defendants' Motion For Summary Judgment (Doc. #58) filed September 2, 2003 be and hereby is SUSTAINED. The Court grants summary judgment in favor of defendants.
IT IS FURTHER ORDERED that plaintiff's Motion For Restraining Order (Doc. #74) filed December 16, 2003 be and hereby is OVERRULED as moot.
IT IS FURTHER ORDERED that plaintiff's Motion To Compel The Production Of Witnesses (Doc. #75) filed December 16, 2003 be and hereby is OVERRULED as moot.