Opinion
Case No. 02-3238-JAR.
August 3, 2005
MEMORANDUM ORDER AND OPINION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Gregory Hill, an inmate at Greenville FCI in Greenville, Illinois, brings this personal injury lawsuit against Corrections Corporation of America ("CCA") and two of its employees, Captain Theodore Dennis and Lieutenant Roger Moore. The matter is before the Court on defendants' Motion for Summary Judgment (Doc. 87). Plaintiff has responded with his own motion for summary judgment (Doc. 94). Also before the Court are plaintiff's Position as to Statement of Claims and Requests for Jury Trial and Appointment of Counsel (Doc. 81) and plaintiff's Motion for Sanction of Defendants (Doc. 83). For the reasons set forth below, the Court denies plaintiff's motions, including plaintiff's motion for summary judgment, and grants defendants' motion for summary judgment.
Plaintiff also filed a motion (Doc. 89) for extension of time to respond to defendants' motion for summary judgment, which the Court granted on July 19, 2005 (Doc. 92).
I. Motion to Amend Pretrial Order
The Pretrial Order entered on September 8, 2004 (Doc.78), provides that plaintiff's claims are all based in negligence and that the trial will be to the Court, rather than a jury. Plaintiff subsequently filed a motion to clarify his claims to assert that in addition to negligence, defendants were deliberately indifferent to his needs, failing in their duty to protect him and keep him safe from harm. Plaintiff also requests a jury trial. The Court construes plaintiff's request 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).
Plaintiff's claims against defendants are all based in negligence; he does not raise any claims that defendants violated his constitutional rights. While the "deliberately indifferent" standard is appropriate in the context of an Eighth Amendment failure to protect claim, it has no application to plaintiff's negligence claims. Thus, plaintiff's motion to modify to clarify his claim of deliberate indifference is denied. Further, because the Court grants defendants' motion for summary judgment, as discussed in detail below, plaintiff's request for jury trial is denied as moot.
Plaintiff's complaint initially appeared to assert a claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that defendants used excessive force against him while he was a pretrial detainee at CCA. The Pretrial Order (Doc. 78), however, sets forth six counts of negligence, with no assertion of federal question jurisdiction or claims of constitutional violations. The Court notes that plaintiff previously brought a Bivens action against CCA for an alleged attack by correctional officers, which was dismissed by Judge Rogers for failure to state a claim. Hill v. Corrections Corp. of America, 14 F.Supp.2d 1235, 1238 (D. Kan. 1998).
See Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003) (explaining to establish Eighth Amendment failure to protect claim, plaintiff must show, inter alia, that defendants were deliberately indifferent to plaintiff's safety).
II. Appointment of Counsel
Plaintiff requests that the Court appoint counsel to assist him in these summary judgment proceedings. In deciding this motion, the Court must "give careful consideration to all the circumstances with particular emphasis upon certain factors that are highly relevant to a request for counsel." These factors include: the merits of the plaintiff's claims; the nature of the factual issues raised in the claims, the plaintiff's ability to present his claims, and the complexity of the legal issues raised by the claims.
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985)).
Id. at 979 (citing Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)).
In this case, although Plaintiff has failed to follow the procedural rules required to state, support and establish what facts are uncontroverted, he has demonstrated his ability to frame facts and state claims for relief. In his response to defendants' summary judgment motion, Plaintiff demonstrates his understanding of what facts would be material to his claims, and he cites to statutory and case law for appropriate rules and principles. The legal issues in this case, and the factual assertions underlying the claims are not novel or difficult to state or analyze. Plaintiff's motion for appointment of counsel is denied.
As with his request for jury trial, plaintiff's motion for appointment of counsel, to the extent it requests counsel for trial, is also denied as moot.
III. Sanctions
Plaintiff filed a motion for sanctions against defendants for failure to make discovery disclosures (Doc. 83). Defendants have responded that they in fact complied with plaintiff's request and the Pretrial Order. Plaintiff has not indicated otherwise, and his motion is denied as moot.
IV. Summary Judgment
A. 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 local 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.
B. 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).
C. Uncontroverted Facts
CCA is a private Maryland corporation that houses federal pretrial detainees and prisoners under a contract with the United States Marshal's Service. Plaintiff, a federal prisoner, was confined at the Leavenworth facility of CCA on May 10, 2001, and was a pretrial detainee at the time of the alleged incident on July 1, 2001. Individual defendants Roger D. Moore, Jr. and Theodore Dennis are shift supervisors at the CCA facility in Leavenworth and held their respective positions when plaintiff was confined there in 2001. Fred Lawrence is Warden at CCA, and held that post when plaintiff was confined there in 2001.
See 18 U.S.C. §§ 4013, 4002.
At the time plaintiff was detained, it was the policy and procedure at CCA to require an inmate to submit to handcuffs prior to opening a cell to remove an inmate who is physically and/or verbally abusive or violent. If unsuccessful, this step is followed by an attempt to subdue the inmate with OC pepper spray prior to using force, then to form an extraction team of several corrections officers properly equipped and suited up to enter the cell. CCA policy and procedure does not allow officers to open a cell where there is a violent inmate to extract an inmate occupying the same cell. This information is submitted by affidavit; the record does not include a copy of CCA's policy or procedures in effect at the time of the incident.
On July 1, 2001, plaintiff was placed in a segregation cell. The reason for plaintiff's placement is disputed: plaintiff contends that he was placed in segregation to recuperate from a beating at the hands of a fellow inmate in C pod; CCA contends he was placed in segregation for fighting in the recreation yard. The characteristics of the segregation cell are also in dispute: plaintiff contends that he was placed in a "single man" cell; CCA avers that there are no single man cells at CCA, and the cell where plaintiff was placed on July 1, 2001, is not a single man cell. In support of this contention, CCA attaches photographs of cell 104, which show two bunks, one upper and one lower. However, the video taken of the incident on July 1, 2001, indicates that the upper bunk had been removed from cell 104, and in fact, it only had one bunk.
Officer Dennis placed inmate Speakman in the cell occupied by plaintiff in the segregation unit. Upon being shut into the cell, inmate Speakman began yelling that he wanted out and kicking the door. Speakman demanded to see the shift supervisor and stated that he wanted plaintiff out of the cell, and if he wasn't moved, he was "going to count to twenty and then I am going to hurt him." Officer Dennis told Speakman he was not going to be let out. Officer Dennis then ordered Speakman to submit his hands to be cuffed up. Speakman refused the order several times and became increasingly hostile. Officer Dennis administered OC pepper spray directly toward and onto inmate Speakman. Officer Dennis told plaintiff to go to the corner of the cell out of the direct spray, and plaintiff complied. After inmate Speakman's noncompliance, CCA policy prohibited the officers to open the cell in order to allow plaintiff to be removed. Officer Dennis left the unit to gather several corrections officers to suit up in special gear as an extraction team. Officer Dennis and the team returned to the unit approximately 25 minutes after the pepper spray had been administered, and Speakman complied with the order to allow cuffs to be applied.
While Officer Dennis was away, Officer Moore continued to videotape the incident, where plaintiff can be seen coughing and asking to be let out of the cell. Moore was available to contact officers via radio if an emergency arose that endangered plaintiff. Moore did not perceive any immediate threat to plaintiff's health or safety while the cell extraction team was being formed. Once inmate Speakman was cuffed, Hill was released from the cell and treated by medical personnel.
Plaintiff submits an internal memo written by Warden Lawrence on July 25, 2001, which indicates that policy may not have been followed because Officer Dennis left the scene after administering the pepper spray, in order to form the extraction team. The memorandum states that during Officer Dennis's 25 minute absence, it appears from the video that inmate Speakman was in a state of surrender, but since Dennis was not present, both inmates remained in the cell during the prime effective period of the OC pepper spray, and the opportunity to gain compliance was lost. In response to the July 1, 2001 incident, Warden Lawrence ordered an internal investigation; the Shift Supervisor assigned to the investigation failed to follow through with the Warden's instructions and was terminated. There is no copy of the investigation report or results in the record, although Lawrence avers that the investigation concludes that proper procedure was followed.
CCA records disclose no information that indicated antagonism against plaintiff by other inmates, nor did plaintiff inform CCA staff prior to any assault or altercation that plaintiff was threatened or fearful of particular inmates at CCA.
A few days prior to the July 1, 2001 incident, plaintiff made a sick call request to see a doctor about eye surgery. He made no further complaints about problems with his eyes until approximately nine months later. After the July 1, 2001 incident, plaintiff did not complain of injuries to his eyes, but rather was treated by CCA clinic staff for a laceration above his right eye, a human bite with an open wound on the bridge of his nose, and abrasions to his knee, injuries apparently sustained in the attack/fight that landed him in segregation. Plaintiff's medical records do not reflect any injury or complaints about his eyes or lungs at the time of the OC pepper spray incident. Despite a number of sick call visits, no complaints were made by plaintiff about problems with his eyes until April 2, 2002. On April 8, 2002, plaintiff complained that his eyes were "always red," and indicated that he had the problem for a year.
Plaintiff's latest medical evaluation, dated August 27, 2004, attached to his response, states the reason for the evaluation was an optometrist's diagnosis of hyperemia (red eyes) and burning of an unknown cause. The 2004 doctor's evaluation stated that plaintiff suffers from "mild changes of allergic conjunctivitis," "didn't see any corneal pathology;" and the doctor prescribed Alrex and Alamast (allergy eye drops).
On July 8, 2001, plaintiff was moved to D pod. Plaintiff contends that he was housed in the same cell with the "individual who has assaulted the plaintiff in the segregation cell on July 1, 2001,"apparently referring to inmate Speakman, which "resulted in further physical injury to the plaintiff." CCA avers that plaintiff was not placed in a cell with inmate Speakman. Plaintiff submits his own affidavit; CCA submits the affidavit of the Warden.
D. Discussion
Plaintiff alleges various acts of negligence by defendants concerning his care and custody while he was housed at CCA. To recover for negligence, a plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law.
Washington v. State, 17 Kan. App. 2d 518, 557, 839 P.2d 555 (1992) (citation omitted).
Id. (citation omitted).
1. Were defendants negligent in the housing assignment of plaintiff prior to the July 1, 2001 incident?
Plaintiff contends that on July 1, 2001, while housed in C pod, he was attacked by inmate Gerald Thorpe, who was to testify in plaintiff's upcoming trial. Plaintiff argues that CCA and the individual defendants had a duty to inquire of the U.S. Marshal's Service whether plaintiff was "involved in any way with the other inmates being housed at CCA." CCA counters that it had no knowledge and its records contained no information about antagonism between plaintiff and other inmates housed in C pod.
Kansas courts have held that prison officials owe a duty of ordinary or reasonable care to safeguard a prisoner in their custody or control from attack by other prisoners. This duty to provide reasonable care to protect an inmate from violence is not violated in the absence of a determination that the danger was known, or in the exercise of ordinary care, should have been known by a prison official. In this case, plaintiff does not allege or provide any evidence that the defendants knew or should have known any danger existed. Plaintiff does not claim that he requested protective custody or that he notified CCA or any officer of any threat from inmate Thorpe. Even if defendants were aware that Thorpe was involved in plaintiff's case, plaintiff does not allege that CCA or any officer had any knowledge of animosity between that inmate and plaintiff prior to the attack. Accordingly, CCA and its officers could not have foreseen the physical confrontation with ordinary care and reasonable diligence. Summary judgment is granted in favor of defendants on this claim.
Id. at 523, 839 P.2d at 559.
Id. (citations omitted).
2. Were defendants negligent with respect to the July 1, 2001 incident in segregation?
Plaintiff contends that defendants were negligent both in placing inmate Speakman in the same cell as plaintiff and in the manner in which they administered the OC pepper spray. As with inmate Thorpe, the Court finds that there is no evidence that CCA or any officer had any knowledge of animosity between inmate Speakman and plaintiff prior to placing them in the same cell. Moreover, there is no evidence that Speakman's threat to harm plaintiff ever materialized; in his affidavit, plaintiff does not allege that Speakman attacked him.
The Court questions the wisdom of placing inmate Speakman in the same cell as plaintiff, when the video clearly shows that there was only one bunk, the top bunk having apparently been removed. While it may be true that CCA does not have any "single man" cells, on July 1, 2001, cell 104 was effectively rendered a one-man cell. The evidence is not clear as to whether placing inmate Speakman in the cell with plaintiff caused Speakman's outburst leading Officer Dennis to administer the pepper spray. Inmate Speakman told Officer Dennis he wanted plaintiff out of his cell and was going to count to twenty, then hurt him. Inmate Speakman's statement after the incident, which is submitted by plaintiff in his response to defendants' motion for summary judgment, indicated that Speakman was angry because he felt he was unjustly placed in segregation and because Officer Dennis refused to let him speak to the shift supervisor. While the evidence does not show that Speakman's anger or outburst was caused by being placed in the cell with plaintiff, it was certainly a contributing factor.
Plaintiff also contends that spraying the cell with OC pepper spray prior to removing plaintiff from the cell was a breach of the "duty to provide a safe and secure environment." The parties fail to cite, nor was the Court able to find, case law dealing with a negligence claim brought under similar facts; the majority of the cases involving use of pepper spray are brought in the context of an Eighth Amendment violation. Defendants do not dispute that they owed plaintiff a duty of care, however, and the Court will assume for purposes of this summary judgment motion that defendants have a duty to provide a safe and secure environment for inmates.
See, e.g., Gargan v. Gabriel, 2002 WL 3158577 (10th Cir. Nov. 5, 2002); DeSpain v. Uphoff, 264 F.3d 965 (10th Cir. 2001).
While the Court agrees that defendants had a duty to provide a safe environment for inmates, it disagrees that the use of pepper spray, in and of itself, is a breach of that duty. CCA's policy and procedures authorized and directed the use of pepper spray on an inmate who refused to be "cuffed up" in order to prevent or quell a disturbance and maintain orderly operation of the institution. Moreover, removing plaintiff from the cell prior to cuffing inmate Speakman is against that policy and would appear to place him in greater danger, as Speakman was unrestrained and acting in a threatening and volatile manner. Defendant's policy is reasonable, given the obvious risks of harm to both the guard and the cellmate.
The issue is not so clear with respect to what occurred after the pepper spray was administered — Officer Dennis left the scene to assemble an extraction team, and was gone for over 25 minutes. According to the internal memorandum prepared by Warden Lawrence, this potentially violated CCA policy and procedure, as the officer should have been there in the event inmate Speakman surrendered and an opportunity for compliance was presented. Instead, both plaintiff and inmate Speakman remained in the sprayed cell for over 25 minutes while the extraction team was assembled, without any medical staff present or consulted. Officer Moore states that there was no apparent immediate threat to plaintiff's health or safety during this time and that the cell was ventilated. Nevertheless, the Court finds that this apparent violation of CCA policy and procedure raises the question of whether CCA breached its duty to provide a safe environment to plaintiff.
This does not resolve the issue, however, as there is no evidence that plaintiff was injured and that the use of OC pepper spray caused injury. A plaintiff in a personal injury negligence action must offer proof of damages and that the defendant's negligence caused that injury; recovery may not be had where alleged damages are too conjectural or speculative to form a basis for measurement. Plaintiff contends that he suffers permanent injury to his eyes as well as his emotional well being. Plaintiff has provided no medical records that reveal any injuries to his eyes when he was examined immediately after the July 1, 2001 incident. In fact, the record indicates that plaintiff sought medical treatment for eye complaints prior to the July 1, 2001 incident. Dr. Scott Bowlin, who treated plaintiff after the incident and who has examined plaintiff's medical records for the period following the incident, states that his medical opinion is that plaintiff did not suffer any physical harm or any medical effects from the use of OC pepper spray on July 1, 2001. Plaintiff's latest medical evaluation, dated August 27, 2004, found no injury to the eyes, and concluded that plaintiff had allergies to be treated with prescribed eye drops. As to emotional injury, plaintiff makes the conclusory claim that he suffers from depression, anxiety, and distrust as a result of the July 1, 2001 incident. Plaintiff does not produce any medical records supporting his claim for emotional injury. His conclusory statements that he was injured and that his injuries were caused by the OC pepper spray are not adequate to state a negligence claim. Accordingly, summary judgment in favor of defendants is granted on this claim.
Bridges v. Bentley by Bentley, 244 Kan. 434, 769 P.2d 635 (1989).
3. Alleged Assault in D pod.
Plaintiff avers that after he was released from segregation on July 8, 2001, he was placed in the same pod and cell as inmate Speakman, where he was subjected to more abuse. Plaintiff's affidavit also states that when it was discovered that plaintiff was assigned to a cell with Speakman, he was moved to H pod. Plaintiff does not specify how Speakman harassed or abused him. In response, CCA states that plaintiff was not placed in the same cell with inmate Speakman on July 8, 2001. In support, CCA files the affidavit of Warden Lawrence; there are no records regarding plaintiff's housing assignment in the record.
Viewing the record in the light most favorable to plaintiff, and accepting that he was housed with inmate Speakman, there is no evidence that he suffered any harm as a result. There is no record of any reports of threats or abuse by Speakman towards plaintiff. By plaintiff's own admission, after it was discovered that he was in the same cell as Speakman, he was moved to H pod. "While it is true . . . that the court may not resolve disputed facts on summary judgment, it is not required to accept the non-movant's self-serving and conclusory assertions. Summary judgment is granted in favor of defendants on this claim.
See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
V. Plaintiff's Counter-motion for Summary Judgment
Plaintiff seeks summary judgment on his negligence claims. For the reasons set forth above, plaintiff's motion is denied.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff's motion to amend pretrial order and for appointment of counsel (Doc. 81) is DENIED;
IT IS FURTHER ORDERED that plaintiff's motion for sanctions (Doc. 83) is DENIED as moot;
IT IS FURTHER ORDERED that defendants' motion for summary judgment (Doc. 87) is GRANTED and plaintiff's counter-motion for summary judgment (Doc. 94) is DENIED.
IT IS SO ORDERED.