Opinion
Civil Action No. 19-cv-02134-DDD-MEH
11-20-2020
DONELL J. BLOUNT, SR., Plaintiff, v. JEREMIAH YOUNGER and CURTIS MURPHY, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendants' Motion for Summary Judgment. [ECF 40]. The motion was referred to this Court for recommendation. ECF 41. The motion is fully briefed, and the Court finds that oral argument will not materially assist in its adjudication. Based upon the record herein and for the reasons that follow, the Court RECOMMENDS that the motion be granted.
BACKGROUND
I. Overview of Claims
In his Complaint (ECF 1), Plaintiff alleges that he was a prisoner of the Colorado Department of Corrections at the Denver Reception and Diagnostic Center ("DRDC"). He arrived on August 24, 2018 and was in an intake holding cell. He was taken to a segregation cell and then, after being placed in restraints, ordered to sit on the floor in the hallway. Plaintiff asked to be returned to his cell, but instead he was taken into a multi-purpose room where he remained in restraints. Plaintiff alleges growing hostility by the guards over his intention to make a PREA (Prison Rape Elimination Act) complaint by calling the hotline. The guards made a final request that he not make one, but he refused. At that point, the guards removed him from the room under the pretense of returning him to his cell. The guards then yanked him off his feet (causing him to fall to the floor) and sprayed pepper spray into his eyes. Plaintiff brings a claim of excessive force for that incident as well as for deliberate indifference to medical needs.
Defendants move for summary judgment on the basis of affidavits from the involved prison staff, a Use of Force After Action Review report, and medical records. Plaintiff responds with his own sworn Declaration in which he adds information about events that preceded the use of force incident to show that it was unwarranted and retaliatory. Below are the basic facts on which both parties agree. It includes notations from the medical records that Plaintiff attaches to his Declaration.
II. Material Undisputed Facts
1. On August 24, 2018, at 8:50 p.m., Defendant Younger and another guard were called to take Plaintiff from the multi-purpose room back to his cell. Movant's Statement of Undisputed Material Facts ("MSUMF") ¶ 1; Plaintiff's Declaration ("Plf. Decl.") ¶¶ 6-7. 2. Plaintiff initially was compliant with the two guards' directives when they came to return him to his cell. MSUMF ¶ 2; Plf. Decl. ¶ 7. 3. The two guards caused Plaintiff to fall to the floor. MSUMF ¶ 4; Plf. Decl. ¶ 7. 4. The two guards then sprayed pepper spray into Plaintiff's face. MSUMF ¶ 6; Plf. Decl. ¶ 7; ECF 55-10. 5. The two guards took Plaintiff to the DRDC Transport Hub for decontamination. MSUMF ¶ 8; Plf. Decl. ¶ 12. 6. A nurse came to the decontamination shower after Plaintiff was reported as unresponsive. MSUMF ¶ 11; Plf. Decl. ¶ 12. The nurse described Plaintiff as having a patent (open) airway, no audible wheezing, and adequate breathing. Plaintiff was observed to speak in full sentences and was described as "argumentative" and "yelling." Plaintiff reported a history of asthma. Plaintiff's respiratory distress was rated as a "2" on a 0-10 scale. Vital signs were taken except for his temperature. MSUMF ¶ 11; ECF 55-4. 7. Plaintiff was taken from the decontamination shower to the clinic for a medical examination. MSUMF ¶ 12; Plf. Decl. ¶ 13; ECF 55-4. 8. Plaintiff attaches to his Declaration select pages from his treatment notes from the evening of August 24, 2018. One page has the conditions, "Tachypnea," "Dyspnea easily resolved," and "Sudden onset or rapid progression of symptoms" check-marked as the reasons "Requiring Immediate Practitioner Consultation." That same page adds the notations: "Vital signs WNL," "Sit patient upright and lean forward on support to ease breathing," and "Administer nebulized Albuterol." ECF 55-3 at 1. It was noted that Plaintiff "refused to comply with strip out instructions" and "refused to comment on any injuries." "No injuries" were noted. ECF 55-3 at 2. 9. His vital signs were noted as "stable with no signs or symptoms of breathing difficulty." ECF 55-12. 10. Plaintiff was admitted into the infirmary for further evaluation and observation, where he stayed for three days. MSUMF ¶ 16; Plf. Decl. ¶ 15; ECF 55-2 at 7. 11. On August 27, 2018, three days after the use of force incident, Plaintiff was transferred to the Virginia Department of Corrections. MSUMF ¶ 22; Plf. Decl. ¶ 15, 20. A Health Services Complaint and Treatment Form dated that day notes his complaint of "scabbing around both eyes due to being sprayed with gas." ECF 55-5. 12. An x-ray of Plaintiff's spine taken on May 18, 2020 shows mild degenerative disc disease in his mid thoracic spine and mild degenerative facet arthropathy in his lower lumbar spine. ECF 55-6.
LEGAL STANDARDS
A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). A court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The moving party bears the initial responsibility of providing to the court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the moving party has the burden of proof—the plaintiff on a claim for relief or the defendant on an affirmative defense—the showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Leone v. Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015) (quoting Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986)). "In other words, the evidence in the movant's favor must be so powerful that no reasonable jury would be free to disbelieve it. Anything less should result in denial of summary judgment." Id. at 1154 (quoting 11 Moore's Federal Practice, § 56.40[1][c] (Matthew Bender 3d Ed. 2015)). Only evidence for which the content and substance are admissible may be considered when ruling on a motion for summary judgment. Johnson v. Weld Cty., Colo., 594 F.3d 1202, 1210 (10th Cir. 2010).
If the movant properly supports a motion for summary judgment, the non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, the opposing party may not rest on the allegations contained in its complaint but must respond with specific facts showing a genuine factual issue for trial. Fed. R. Civ. P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007) ("The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact."); see also Hysten v. Burlington N. & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown "'by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.'" Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324); see also Mountain Highlands, LLC v. Hendricks, 616 F.3d 1167, 1170 (10th Cir. 2010) ("On those issues for which it bears the burden of proof at trial, the nonmovant "must go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence of an element essential to [its] case in order to survive summary judgment.") (quoting Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007)). "The court views the record and draws all inferences in the light most favorable to the non-moving party." Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).
ANALYSIS
I. Excessive Force
A claim of excessive force by a prison guard consists of two prongs. A subjective prong requires Plaintiff to show that the guard acted with a sufficiently culpable state of mind. An objective prong that requires a showing of harm of a sufficient degree. See Marshall v. Milyard, 415 F. App'x 850, 852 (10th Cir. 2011). Plaintiff does not show a genuine dispute of material fact from which a reasonable jury could find in his favor on either.
The Subjective Inquiry
The subjective inquiry turns on whether the alleged force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. See id. at 852. Plaintiff alleges that Defendant Younger had no justification to use force. In his Declaration (ECF 55-2) he says that force was used against him solely in retaliation for his intention to make a PREA complaint. He denies any disorderly or non-compliant behavior. However, his Declaration alone is insufficient to create a dispute of fact on this issue. At the summary judgment stage, a party's version of the facts must find support in the record. See Pierson v. Bassett, 534 F. App'x 768, 771 (10th Cir. 2013) (citing York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)). A plaintiff may not rely on an affidavit that is conclusory or self-serving. See Oates v. Englund, 194 F.3d 1321, 1321 (10th Cir. 1999). Plaintiff submits no evidence that corroborates his version of what precipitated the use of force. For example, despite identifying several witnesses, he attaches no statements from them. This includes the inmate who he initially was advising how to file a PREA complaint; the prisoners who called for help after a guard threatened him; the nurse who talked to him while he sat on the floor in restraints; the mental health worker who talked to him after that; or the patient in the infirmary who relayed a message for him. His Declaration alone, without some evidence to corroborate it, is insufficient to create a dispute with the Defendants' evidence that Plaintiff was being disorderly and non-compliant.
The Objective Inquiry
Plaintiff also must show harm sufficient to establish a constitutional violation. The harm must be "both de minimus and not of a sort repugnant to the conscience of mankind." See Marshall, 415 F. App'x at 852-53. The extent of any alleged injury is relevant to whether "unnecessary and wanton infliction of pain" occurred. See Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). The inquiry also is guided by consideration of the surrounding circumstances such as "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." Hudson v. McMillian, 503 U.S. 1, 7 (1992) (internal citations omitted).
Plaintiff does not demonstrate a dispute of fact over the severity of his injuries. The medical records upon which he relies are inconsistent with the extreme degree of injury that he asserts in his Declaration. In comparison to what he describes, the treatment records show relatively mild effects. There are notations of respiratory issues: tachypnea, dyspnea easily resolved, sudden onset or rapid progression of symptoms; a 2 on a 0-10 respiratory distress scale; sitting Plaintiff in a position for easier breathing; use of nebulizer; and a later complaint of scabbing around the eyes. Those same records also suggest normal respiratory functioning and the absence of any observable injury. The additional medical records that Defendants provide likewise show an overall normal condition. Plaintiff's x-ray was taken almost two years after the incident and shows only mild conditions in his thoracic and lumbar spine. Because the description of his injuries in his Declaration "is blatantly contradicted by the record," the Court should not adopt it on summary judgment review. See Pierson, 534 F. App'x at 771 (citing York, 523 F.3d at 1210).
II. Deliberate Indifference to Serious Medical Needs
Plaintiff also alleges that the guards "refused him needed medical care for [ ] serious medical needs" and "left gas soaked clothes in [his] cell causing him to suffer for an additional three days." ECF 1 at 12. A prison official violates the Eighth Amendment if he is deliberately indifferent to an inmate's serious medical need. See Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). Plaintiff shows no dispute of fact over whether he was denied medical care following the use of force incident. To the contrary, his own Declaration and the treatment notes that he attaches to it show that he did receive treatment, not only after the incident but that for the three days thereafter he stayed in the infirmary until his transfer to a different facility.
III. Defendant Curtis Murphy
Plaintiff does not show a dispute of fact that Defendant Murphy used any force against him. Instead, Plaintiff's Declaration shows that the second guard was named Gigliotti, and that Defendant Murphy was in fact a nurse who treated him after the use of force incident. Therefore, the excessive force claim against Defendant Murphy should be dismissed. Nor does Plaintiff show a dispute of fact over whether Defendant Murphy refused him medical care. Plaintiff's own Declaration and selected treatment notes show that Defendant Murphy did treat him after the use of force incident.
CONCLUSION
"Summary judgment is not a disfavored procedural shortcut. Instead, it is an important procedure designed to secure the just, speedy and inexpensive determination of every action." Evans v. Cawthorn, No. 16-3095-DDC-ADM, 2019 WL 5787952, at *3 (D. Kan. 2019) (citing Celotex, 477 U.S. at 327). Summary judgment is warranted here because Plaintiff provides insufficient facts by which he could prevail on his causes of action at trial. Although Plaintiff is pro se, he has extensive litigation experience. ECF 1 at 13. Despite that experience, he offers only his own sworn Declaration as factual support for his version of what happened, a version that lacks any corroborating evidence. Consequently, he does not show a genuine dispute of fact whether Defendant Younger lacked a legitimate penological interest to use force against him; whether he suffered the claimed physical injuries; or whether he was denied medical care.
Accordingly, based upon the foregoing and the entire record herein, this Court respectfully RECOMMENDS that Defendants' Motion for Summary Judgment [filed July 15, 2020; ECF 40] be granted.
Entered this 20th day of November, 2020, at Denver, Colorado.
BY THE COURT:
/s/
Michael E. Hegarty
United States Magistrate Judge