Opinion
Civil Action No. 99-3363-KHV
November 2, 2001
MEMORANDUM AND ORDER
Kenneth Jackson brings suit against various employees of the Kansas Department of Corrections ("KDOC"), alleging that they violated his constitutional rights by denying him adequate medical care and using excessive force. Plaintiff also asserts a state law claim for assault and battery. This matter is before the Court on Defendants' Motion For Reconsideration (Doc. #54) filed August 10, 2001. For reasons set forth below, the Court sustains defendants' motion in part.
Motions To Reconsider Standards
The Court has discretion whether to grant a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981); Burnett v. W. Res., Inc., 929 F. Supp. 1349, 1360 (D.Kan. 1996). A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed. See Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D.Kan.), aff'd, 43 F.3d 1484 (10th Cir. 1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992).
Factual Background
As noted in the Court's prior order on defendants' motion for summary judgment, see Memorandum And Order (Doc. #52) filed July 27, 2001 at 2-4, the following facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to plaintiff:
Plaintiff is an inmate at the El Dorado Correctional Facility ("EDCF") in El Dorado, Kansas. Charles E. Simmons is Secretary of the KDOC. Michael A. Nelson is Warden at EDCF. Leonard Moore, Brent Johnson, Heath Austin and Mahlon Boyer were correctional officers at the facility. All defendants were employees of the State of Kansas at the time of the relevant events.
After plaintiff sustained a knee injury, the medical staff at EDCF excused him from standing for "prolonged" periods of time. Whenever plaintiff went to the clinic to obtain medication from approximately June 5 through August 4, 1999, prison staff allowed him to sit in the waiting room until only a few inmates remained in the medication line. On August 5, 1999, plaintiff went to the clinic to obtain pain medication for his knee and medication for his stomach. He again sat down in the clinic waiting room. Boyer approached plaintiff and told him to stand in the medication line or leave. Plaintiff explained that he had chronic knee pain and showed Boyer a note which documented his medical restriction. Boyer took the note and asked the nurse on duty whether standing in the medication line constituted "prolonged" standing. The nurse responded that it did not. Shortly thereafter, after Boyer had returned the note to plaintiff, Johnson and Austin arrived. Johnson approached plaintiff and told him to stand in line or leave. Plaintiff stood up and tried to show Johnson the note which documented his medical restriction, but Johnson bumped plaintiff in the chest, grabbed him and put him on the floor. Austin then deliberately grabbed plaintiff's bad leg and folded it over his right leg and leaned his weight on it, causing excruciating pain. Johnson and Boyer then put handcuffs on plaintiff which were excessively tight and caused plaintiff severe pain. Johnson and Austin dragged plaintiff by his arms about 50 yards to the captain's office. A prison guard asked Moore to loosen plaintiff's handcuffs because they were too tight, but Moore refused.
Approximately ten minutes after the attack, a nurse at the EDCF clinic examined plaintiff. Plaintiff's wrists had swollen around the handcuffs, and the nurse and a prison guard again asked Moore to loosen them. Moore finally instructed the guard to loosen the handcuffs. The nurse noted that the handcuffs were tight on plaintiff's wrists and were cutting into the skin, but that the skin was still intact. The nurse also noted that plaintiff had a contusion on his left cheek and swelling on his left knee.
On August 11, 1999, the EDCF disciplinary board held a hearing on the alleged attack. The board found plaintiff guilty of refusing two direct orders and sentenced him to 21 days of disciplinary segregation.
Procedural Background
On November 19, 1999, plaintiff filed suit to recover damages for the attack. He alleges that by denying him adequate medical care and using excessive force, defendants violated his rights under the Eighth Amendment to be free from cruel and unusual punishment. See 42 U.S.C. § 1983. Plaintiff also asserts a state law claim for assault and battery against Johnson, Boyer and Austin.
On July 27, 2001, the Court sustained defendants' motion for summary judgment in part. See Memorandum And Order (Doc. #52). The Court sustained defendants' motion as to as to defendants Simmons and Nelson and as to plaintiff's claims for deliberate indifference to his medical needs and as to all of plaintiff's claims against defendants in their official capacities. The Court overruled defendants' motion as to plaintiff's claims of excessive force and assault and battery.
Defendants Moore, Johnson, Austin and Boyer ask the Court to reconsider its ruling with regard to (1) whether plaintiff has stated a claim for excessive force under the Eighth Amendment and (2) whether defendants are entitled to qualified immunity.
Analysis I. Excessive Force
Plaintiff contends that, in tackling, cuffing and dragging him, defendants Johnson, Austin and Boyer violated plaintiff's rights by using force which was excessive under the circumstances. The Court previously rejected defendants' argument that plaintiff had failed to state a claim for excessive force. In their motion for reconsideration, defendants contend that (1) they were not acting "maliciously and sadistically" at the time of the confrontation with plaintiff and (2) their use of force was "de minimis."
Excessive use of force claims brought by inmates fall under the rubric of the Eighth Amendment's prohibition against cruel and unusual punishment. See Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). In order to recover, plaintiff must prove that defendants used excessive force resulting in the "unnecessary and wanton infliction of pain." Hudson v. McMillian, 503 U.S. 1, 5 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). While prison officials must occasionally resort to physical force to maintain or restore institutional order, they must also balance the institutional interest in order against the risk of harm to the inmate. See Hudson, 503 U.S. at 5. The core judicial inquiry is thus "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 6; see Mitchell v. Maynard, 80 F.3d 1433, 1440 (10th Cir. 1996).
To determine whether the use of force could plausibly have been thought necessary or was wanton and unnecessary in a particular situation, the Court should consider the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response. Id. The extent of a prisoner's injuries is also relevant. See Hudson, 503 U.S. at 9-11. The Supreme Court has noted:
When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. See Whitley, supra, 475 U.S., at 327, 106 S.Ct., at 1088. This is true whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury. Such a result would have been as unacceptable to the drafters of the Eighth Amendment as it is today. See Estelle, supra, 429 U.S., at 102, 97 S.Ct., at 290 (proscribing torture and barbarous punishment was "the primary concern of the drafters" of the Eighth Amendment); Wilkerson v. Utah, 99 U.S. 130, 136, 25 L.Ed. 345 (1879) ("[I]t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by [the Eighth Amendment]").
That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action. See Johnson v. Glick, 481 F.2d, at 1033 ("Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights"). The Eighth Amendment's prohibition of "cruel and unusual" punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort "`repugnant to the conscience of mankind.'" Whitley, 475 U.S., at 327, 106 S.Ct., at 1088 (quoting Estelle, supra, 429 U.S., at 106, 97 S.Ct., at 292) (internal quotation marks omitted).
Hudson, 503 U.S. at 9-10.
In ruling on defendants' motion for summary judgment, the Court stated:
Although defendants have posited a version of the facts under which their use of force might be reasonable, under plaintiff's version of the facts a reasonable jury could (and probably would) find otherwise. That is an issue of fact for the jury. See, e.g., Street v. Parham, 929 F.2d 537, 541 n. 2 (10th Cir. 1991) (in excessive force cases, fact finder determines if force was excessive under circumstances); Trujillo v. Goodman, 825 F.2d 1453, 1458-59 (10th Cir. 1987) (question of excessive force is factual inquiry properly reserved in most instances for jury). A jury will have to weigh the relative credibility of the witnesses in order to determine what happened and whether defendants' use of force was reasonable. Plaintiff's story and defendants' story directly contradict each other, and they cannot be reconciled without evaluating the truthfulness of each. On a motion for summary judgment, the Court cannot engage in that task. Therefore, summary judgment on the issue of the use of excessive force by Johnson, Boyer and Austin is inappropriate.
Memorandum And Order (Doc. #52) at 11.
Defendants argue that they were not acting "maliciously and sadistically" at the time of the incident involving plaintiff. In particular, defendants argue that their use of force was simply a response to an "unruly, disobedient and defiant inmate" who refused to obey two direct orders from prison security staff. Memorandum In Support Of Defendants' Motion For Reconsideration (Doc. #55) at 4, 7. Plaintiff concedes that he refused a direct order, but he argues that he attempted to show officers Johnson and Austin his written medical excuse to explain his noncompliance. Plaintiff states that when he attempted to show the officers his paperwork, they refused to look at it and attacked him. Complaint (Doc. #1) at 2b; see Declaration In Opposition To Defendant's Motion For Summary Judgment (Doc. #40) filed April 12, 2001 ¶¶ 11-14. Based on plaintiff's version of the events, the officers' use of force was unprovoked and unnecessary. Accordingly, a reasonable jury could find that the officers acted "maliciously and sadistically." Hudson, 503 U.S. at 9; see Fry v. Simmons, 1997 WL 51376, at *5 (D.Kan. Jan. 9, 1997); cf. Miller, 948 F.2d 1562, 1567 (because plaintiff admitted that he "wrestled" with officer, his allegations were insufficient to show that officer acted "maliciously and sadistically with the very purpose of causing harm").
Defendants also argue that their use of force cannot constitute an Eighth Amendment violation because such force was "de minimis." Plaintiff has offered his own affidavit which states:
Johnson placed the hand cuffs on my wrist, done so with all his strength, causing me severe pain. . . . Austin after my [sic] being placed on the ground twisted my bad left knee over my right leg and applied all his weight to the joint of my left knee. This caused me even more severe pain. I was then taken to the captains office, in which I was practically dragged by no more than my wrists and my body weight was placed on my shoulders, and shoulder blades.
Complaint (Doc. #1) at 2b; see Declaration In Opposition To Defendant's Motion For Summary Judgment (Doc. #40) filed April 12, 2001 ¶¶ 11-14; see also Affidavit of Herbert Proffitt #63100 dated July 17, 2000, attached to plaintiff's declaration (Doc. #40); Prison Health Services Emergency Report, attached as part of Exhibit A to Report in "Martinez v. Aaron" Investigation (Doc. #25). Although the injury to plaintiff's wrists from the handcuffs may be insufficient by itself to constitute an Eighth Amendment violation, a reasonable jury could find that plaintiff's injuries taken together were more than "de minimis." See Hudson, 503 U.S. 1, 9-10 (blows which caused bruises, swelling, loosened teeth, and a cracked dental plate, were not de minimis for Eighth Amendment purposes); Mitchell v. Maynard, 80 F.3d 1433, 1440 (10th Cir. 1996) (plaintiff sustained cuts, bruises, swollen hand, and possible broken fingers from beating by guards); see also Despain v. Uphoff, 264 F.3d 965, 978 (10th Cir. 2001) (if the infliction of pain is both "unnecessary and wanton," plaintiff need not allege "significant and lasting injuries"); Northington, 973 F.2d at 1523 (significant physical injury not required because constitutional inquiry focuses on whether there was infliction of pain that was unnecessary and wanton). The Court therefore overrules defendants' motion for reconsideration as to plaintiff's excessive force claim.
Plaintiff also alleges that Moore is liable because he failed to intervene after the fact and loosen plaintiff's handcuffs. Defendants did not specifically address this claim in their motion for summary judgment or in their motion for reconsideration. In its prior order, the Court reviewed this claim sua sponte and found that Moore may be liable if he knew of and disregarded "an excessive risk to inmate health or safety." Memorandum And Order (Doc. #53) at 11 n. 3 (quoting Farmer, 511 U.S. at 837).
II. Qualified Immunity
Defendants ask for reconsideration of the Court's ruling which rejected their assertion of qualified immunity regarding plaintiff's excessive force claim. "Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The affirmative defense of qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Gross v. Pirtle, 245 F.3d 1151, 1155 (10th Cir. 2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). The Tenth Circuit has set forth the following method of analysis when the qualified immunity defense is raised on summary judgment: once the defense has been raised, plaintiff has the burden to establish both that defendant's actions violated a constitutional or statutory right and that the right was "clearly established" at the time of the relevant conduct. See Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). Ordinarily, in order for plaintiff to demonstrate that a law is clearly established, "there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Medina v. City County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992); see Anderson v. Creighton, 483 U.S. 635, 640 (1987) (right is clearly established if the contours of right are sufficiently clear so that reasonable official would understand that what he is doing violates that right). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001). If plaintiff satisfies this two-part burden, defendant must then demonstrate that no material issues of fact remain as to whether his actions were objectively reasonable in light of the law and the information he possessed at the time. See Martin v. Bd. of County Comm'rs, 909 F.2d 402, 405 (10th Cir. 1990). If defendant makes such a showing of objective reasonableness, he is entitled to summary judgment unless plaintiff can demonstrate a factual dispute which is relevant to defendant's immunity claim. See id.In the excessive force context, the qualified immunity defense protects officers from "reasonable mistakes as to the legality of their actions." Saucier, 121 S.Ct. at 2159. The Supreme Court has noted:
The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.
Id. at 2158.
In their motion for summary judgment, defendants offered no analysis of any of the individuals or facts involved in the instant action. Based on the limited record and absent explanation of the qualified immunity defense, the Court rejected defendants' assertion of qualified immunity. In their motion for reconsideration, defendants argue that based on the discretionary nature of the decision to handcuff and restrain an inmate, plaintiff cannot show that they violated a clearly established right. As to Johnson, Austin and Boyer, plaintiff has presented sufficient evidence to defeat defendants' claim of qualified immunity. First, for the reasons set forth above, plaintiff has established that defendant's alleged actions violated a constitutional right, i.e. the right to be free from cruel and unusual punishment under the Eighth Amendment. See supra part I at 6-7; cf. Sheth v. Webster, 145 F.3d 1231, 1238 (11th Cir. 1998) (qualified immunity denied on excessive force claim under Fourth Amendment; plaintiff alleged that officer pushed her against soda machine, handcuffed her, and dragged her to police car; no evidence that plaintiff posed danger). Second, at the time of the incident, based on Whitley, supra, which was decided in 1986, the law was clearly established that an officer could not attack a prisoner simply because he or she attempted to show a written medical excuse to the officer in an effort to explain non-compliance with an order of the officer (here, the order by Johnson to stand in line or leave). A reasonable officer would have understood that such conduct violates an inmate's rights under the Eighth Amendment. In sum, the decision to use force in such circumstances does not lie in the "hazy border between excessive and acceptable force." Saucier, 121 S.Ct. at 2158 (quoting Priester v. Riviera Beach, 208 F.3d 919, 926-27 (11th Cir. 2000)). Because plaintiff has satisfied these two requirements, the burden shifts to defendants to demonstrate that no material issues of fact remain as to whether their actions were objectively reasonable in light of the law and the information they possessed at the time. See Martin, 909 F.2d at 405. Defendants have not offered any affidavits or otherwise explained how they have satisfied their burden. Accordingly, the Court overrules defendants' motion for reconsideration as to Johnson, Austin and Boyer.
For purposes of the instant motion and based on a liberal construction of plaintiff's complaint, the Court assumes that Boyer participated in the "attack" on plaintiff. See Complaint (Doc. #1) at 2b (alleging generally that Johnson, Boyer and Austin participated in attack). Plaintiff's various sworn statements do not shed light on Boyer's specific involvement in the attack. In one affidavit, plaintiff states that Boyer and Johnson put the handcuffs on him. See Declaration In Opposition To Defendant's Motion For Summary Judgment (Doc. #40) filed April 12, 2001 at 13. In his sworn complaint, plaintiff states that only Johnson placed the handcuffs on him. See Complaint (Doc. #1) at 2b. Nowhere does plaintiff state that Boyer participated in the takedown, the infliction of pain on his knee or the dragging to the captain's office. Based on the uncertain nature of Boyer's involvement, on or before November 23, 2001, plaintiff shall show cause why the Court should not dismiss his excessive force claim as to Boyer for failure to state a claim and under the doctrine of qualified immunity. On or before December 7, 2001, Boyer may file an opposition brief. On or before December 21, 2001, plaintiff may file a reply brief.
As to Moore, plaintiff has not satisfied either prong of his two-part burden. First, he has not shown that defendant's alleged actions violated his rights under the Eighth Amendment. The undisputed evidence shows that the handcuffs were cutting into (i.e. making an indentation or mark) plaintiff's wrists, but that his skin was intact. Such de minimis force does not support an Eighth Amendment claim. See Malik v. Mack, 15 F. Supp.2d 1047, 1050 (D.Kan. 1998) (placement of hand and feet restraints which caused slight wrist injury insufficient to support Eighth Amendment claim); see also Swanson v. Fields, 13 F.3d 407, 1993 WL 537708, at *6 (10th Cir. 1993) (placing suspect in "tight" handcuffs does not rise to level of constitutional violation under Fourth Amendment). Second, even if such force constitutes an Eighth Amendment violation, such a right was not "clearly established" at the time of the alleged incident. Moore refused another officer's request to loosen the handcuffs but shortly thereafter, he removed the handcuffs at the request of the nurse. "[W]hile loosening tight handcuffs [immediately] may [have been] the most compassionate action, the failure to do so does not rise to a clearly established constitutional violation." Hannula v. City of Lakewood, 907 F.2d 129, 132 (10th Cir. 1990) (excessive force claim under Fourth Amendment); see id. (cases do not "clearly establish" that handcuffing detainee too tightly constitutes excessive force under Fourth Amendment, at least absent apparent physical damage to plaintiff's wrists); Alm v. Moreth, 694 F. Supp. 1322, 1324 (N.D.Ill. 1988) (no constitutional violation under Fourth Amendment where officer ordered that plaintiff be handcuffed despite the fact that plaintiff informed him that his wrist had not completely healed and would cause him pain; "while this may not have been the most compassionate course of action, it was not cruel or barbaric"). Just as the initial decision to handcuff is discretionary, so too is the decision to remove handcuffs — particularly where medical attention for the inmate is imminent. See Ospina v. Dep't of Corr., State of Del., 769 F. Supp. 154, 156 (D.Del. 1991) ("There can be no doubt, then, that when handcuffing involves the making of the decision to handcuff and the consideration of the method to accomplish the handcuffing, that act is discretionary."). Plaintiff does not specifically dispute this point, but he maintains that his case "involve[s] more than handcuffing." Plaintiff's Response In Opposition To Defendants' Motion For Reconsideration (Doc. #60) at 6 n. 3. With regard to the other three defendants discussed above, the Court agrees. But plaintiff's case against Moore is essentially a question whether he acted "maliciously and sadistically" by refusing the request of another officer to loosen the handcuffs. Such a decision was a judgment call "inevitably influenced by the decisionmaker's experiences, values and emotions." Harlow, 457 U.S. at 816. In light of the Tenth Circuit authority on the issue in the Fourth Amendment context, see Hannula, supra, a reasonable officer in Moore's position would not have recognized that a decision to delay loosening the handcuffs for several minutes until the nurse examined the inmate arises to a violation of the inmate's Eighth Amendment rights. For these reasons, defendants' motion for reconsideration is sustained as to Moore.
"The standard for judging a Fourth Amendment excessive force claim is hardly as rigorous as the Eighth Amendment standard." Boisture v. Service, 96 F.3d 1448, 1996 WL 499096, at *4 (Sept. 3, 1996).
In Hannula, the Tenth Circuit analyzed a Fourth Amendment excessive force claim under a substantive due process standard. See id. at 131. Although such claims now are evaluated under a Fourth Amendment standard of reasonableness, see Graham v. Connor, 490 U.S. 386, 396-97 (1989), the Hannula holding that, without more, allegations that handcuffs were applied too tightly fail to state a constitutional violation has not been altered in any significant way. See Palmer v. Unified Gov't of Wyandotte County/Kan. City, Kan., 72 F. Supp.2d 1237, 1248 n. 8 (D.Kan. 1999).
IT IS THEREFORE ORDERED that Defendants' Motion For Reconsideration (Doc. #54) filed August 10, 2001 be and hereby is SUSTAINED in part. Defendants' motion is sustained as to Moore who is entitled to qualified immunity on plaintiff's excessive force claim. Defendants' motion is otherwise overruled.
IT IS FURTHER ORDERED that on or before November 23, 2001, plaintiff shall show cause why the Court should not dismiss his excessive force claim as to Boyer for failure to state a claim and under the doctrine of qualified immunity. On or before December 7, 2001, Boyer may file an opposition brief. On or before December 21, 2001, plaintiff may file a reply brief.