Opinion
CIVIL ACTION No. 99-3325-KHV.
May 29, 2001.
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Rikki Leer, a former inmate at the Lansing Correctional Facility, brings suit under 42 U.S.C. § 1983 claiming that John M. Beckerjack, an officer for the Department of Corrections of the State of Kansas, used excessive force in violation of the Eighth Amendment and assaulted Leer during his incarceration. This matter is before the Court on defendant's Motion For Summary Judgment (Doc. #34) filed December 13, 2000, which plaintiff has not opposed. Pursuant to D. Kan. Rule 7.4, "[i]f a respondent fails to file a response within the time required by Rule 6.1(e), the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." When deciding whether to enter summary judgment against a non-responding party, however, Rule 56(e), Fed.R.Civ.P., requires the Court to determine whether summary judgment is appropriate. Thus the Court must decide whether the undisputed facts entitle defendant to summary judgment as a matter of law. See, e.g., Durant v. Husband, 28 F.3d 12, 17 (3d Cir. 1994); Glass v. Dachel 2 F.3d 733, 739 (7th Cir. 1993); Mullen v. St. Paul Fire Marine Ins. Co., 972 F.2d 446, 452 (1st Cir. 1992).
Facts
The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiff.
The facts set forth in this memorandum and order are derived from plaintiff's sworn Amended Complaint (Doc. #6) filed January 11, 2000. Where plaintiff and defendant essentially agree on the factual issues, the Court supplements plaintiff's sworn factual account with facts from the Martinez Report (Doc. #29) filed August 30, 2000 and defendant's factual statement in support of his motion for summary judgment.
In May of 1999, plaintiff was incarcerated at the Lansing Correctional Facility. On May 4, 1999 at approximately 12:30 a.m., defendant, a corrections officer for the State of Kansas, executed a "shakedown" or search of plaintiff's cell. During the shakedown, defendant handcuffed plaintiff behind his back. Plaintiff complained about the search and became agitated. Plaintiff made statements during the search that upset defendant. When defendant completed the search, he ordered plaintiff to put his hands through the "beanhole" of the cell. The beanhole is a rectangular slot in the cell door that is used to transfer food trays and other items to and from the cell. Plaintiff did not fully comply, but defendant grabbed and held on to the handcuffs through the beanhole. Plaintiff alleges that defendant tried to break his arms by pushing and pulling down on them through the beanhole. Plaintiff claims that this treatment lasted for 10 to 15 minutes. Kristen Ohlstein, a corrections supervisor, ordered defendant to release his grip on the handcuffs. Thereafter, plaintiff permitted Ohlstein to remove the cuffs. Plaintiff experienced pain in his wrists during the incident and pain, numbness and tingling for approximately ten days thereafter.
According to defendant, he ordered plaintiff back into his cell after the shakedown., but plaintiff refused to comply. Ohlstein then ordered plaintiff into the cell. Plaintiff complied but once in his cell, refused to cooperate with defendant's attempts to remove the handcuffs. Defendant ordered plaintiff to put his hands through the beanhole to facilitate removal of the handcuffs.
At 1:00 a.m., immediately after the incident, a registered nurse on the prison medical staff examined plaintiff's wrists. She observed redness and mild indentations but did not see any bruising, swelling or deformity. The nurse watched plaintiff rearrange his bedding with no visible signs of pain. Ultimately, the nurse diagnosed plaintiff as suffering from an "alteration in comfort." At 9:05 a.m., clinic staff examined plaintiff. They noted a knot on plaintiff's right hand and observed that he could not perform a full range of motion exercise. At 12:45 p.m., clinic staff x-rayed plaintiff's wrist and did not see any significant abnormalities. They concurred with the earlier diagnosis of "alteration in comfort." Six days later, on May 10, plaintiff sought medical evaluation and treatment. The clinic staff noted that his range of motion was "guarded" and that his right wrist was slightly swollen. The staff proscribed a four day regimen of Motrin and scheduled a follow-up appointment for May 11. For unexplained reasons, plaintiff did not take his medication on three days or appear for his appointment on May 11. On May 14, 1999, however, plaintiff again complained to clinic staff: They noted that plaintiff suffered tenderness in the radial area and diagnosed his condition as a sprain. After May 14, although he remained in custody for another nine months, plaintiff did not again complain of pain in his wrist.
Prison officials held a prison disciplinary hearing regarding plaintiff's conduct during the incident on May 4, 1999.Martinez Report (Doc. #29) filed August 30, 2000 at 5. They convicted plaintiff of Disobeying Orders and Insubordination or Disrespect, but acquitted him of Threatening or Intimidating Any Person. Id.
On October 6, 1999, plaintiff filed suit under 42 U.S.C. § 1983, asserting claims of (1) battery, (2) abuse of power, (3) cruel and unusual punishment, (4) state law conversion and (5) violation of unspecified constitutional rights. See Complaint (Doc. #1). On January 11, 2000, plaintiff filed an amended complaint which reduced his allegations to (1) excessive use of force in violation of the Eighth Amendment and (2) state law tort claims of assault and battery. See Amended Complaint (Doc. #6). On August 30, 2000, defendant filed an answer and Martinez report. See Answer To Plaintiff's Amended Complaint (Doc. #28) and Martinez Report (Doc. #29);see Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978). On December 13, 2000, defendant filed the motion for summary judgment which is now before the Court. See Motion For Summary Judgment (Doc. #34). Defendant did not mail a copy of the motion to plaintiff's address of record in the Court file. Therefore, on January 19, 2001, the Court issued an Order To Show Cause (Doc. #36) why defendant's motion for summary judgment should not be dismissed for failure to comply with Fed.R.Civ. R. 5(a) and (b) and D. Kan. Rule 5.1(c). In response to the show cause order, defendant mailed a copy of the motion to plaintiff's last address of record with the Court. See Defendant's Response To Show Cause Order (Doc. #37) filed January 30, 2001.
The Court last heard from plaintiff on May 15, 2000, when it received a change of address letter from him. Plaintiff did not respond to defendant's summary judgment motion, and defendant states that plaintiff has been on absconder status since November 6, 2000. See Defendant's Response To Show Cause Order (Doc. #37) filed January 30, 2001 at 2. The last two orders which the Court has sent to plaintiff's most recent address of record have been returned with a notation that plaintiff no longer lives at that address. Plaintiff's current whereabouts are unknown.
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 no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); 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. 3 17 (1986); Hicks v. City of Watonga, 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 Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co., Ltd. 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. "[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment maybe granted if the non-moving party's evidence is merely colorable or is not significantly probative. 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 turn up 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.
In pro se prisoner litigation, the Tenth Circuit endorses the completion and filing of a "Martinez report" where the prison constructs an administrative record detailing 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 plaintiff has presented conflicting evidence." Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (citations omitted). The pro se prisoner's complaint, when sworn and made under a penalty of perjury, is also treated as an affidavit and, like the Martinez report, serves as evidence for a summary judgment determination. See id.
Analysis
I. Excessive Use Of ForcePlaintiff's first claim is that defendant used excessive force against him and that such force constituted cruel and unusual punishment in violation of the Eighth Amendment. Plaintiff contends that defendant tried to break his arms and used excessive, unnecessary, malicious and sadistic force. Defendant argues that plaintiff failed to comply with legitimate orders, that he applied an appropriate level of force in light of the situation and that the resulting injury was de minimis. Defendant also asserts that qualified immunity protects him from liability.
The Eighth Amendment prohibits prison officials from imposing "cruel and unusual punishments" on inmates. Inmate claims of excessive use of force fall under the rubric of the Eighth Amendment prohibition of cruel and unusual punishment. See Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). To recover on his claim, plaintiff must prove that defendant used excessive force resulting in "unnecessary and wanton infliction of pain." Hudson v. McMillian, 503 U.S. 1, 5 (1992) (quoting Whitley v. Albers, 475 U.S. 312 (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. Id. The "core judicial inquiry" is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm."Id. at 7; see MacKay v. Farnsworth, 48 F.3d 491, 492-93 (10th Cir. 1995). Relevant factors to consider include "the need for the application of force, the relationship between the need and the amount of force that was used, [and] the extent of injury inflicted." Whitley, 475 U.S. at 321. The prohibition on cruel and unusual punishment does not include "de minimis uses of physical force, provided that the use of force is not . . . repugnant to the conscience of mankind." Hudson v. McMillian, 503 U.S. at 9.
The parties do not dispute that plaintiff made comments about the shakedown that upset defendant. According to plaintiff, defendant had no other reason to try to break his arms by applying pressure to them through the beanhole in the cell door for 10 to 1 5 minutes. Defendant contends that plaintiff continually disobeyed orders to enter his cell and let defendant remove his handcuffs. Defendant applied pressure to plaintiff's wrists in an attempt to remove his handcuffs. The record reveals that the incident caused plaintiff's wrists to become red, and that they bore indentation s where the handcuffs had been. Medical personnel attended to plaintiff's concerns about his wrists on at least three occasions. They diagnosed plaintiff's injury as an alteration in comfort and/or a sprained wrist. Medical personnel also prescribed four days of Motrin for plaintiff's discomfort. The parties dispute the amount of force used and whether plaintiff's actions warranted the use of force at all. Based on this factual dispute, the Court cannot find as a matter of law that plaintiff will be unable to prove defendant used excessive force. See Laury v. Greenfield. 87 F. Supp.2d 1210, 1220 (Kan. 2000) (summary judgment not appropriate when Court could not determine if guard's use of force served legitimate penal interest). Defendant's summary judgment motion on plaintiff's Eighth Amendment claim is therefore overruled.
Defendant also argues that he is entitled to qualified immunity because the evidence does not support a finding that he violated plaintiff's clearly established constitutional rights. Qualified immunity shields defendant from pecuniary liability unless he violated "clearly established" constitutional norms.Anderson v. Creighton, 483 U.S. 625, 639-40 (1987). Qualified immunity has three principle components. First, "[p]laintiff has the burden to show with particularity facts and law establishing the inference that defendant violated a constitutional right."Laury, 87 F. Supp.2d at 1219 (citing Hollingsworth v. Hill, 110 F.3d 733, 737 (10th Cir. 1997) (citations omitted)). Second, plaintiff must show that the constitutional right at issue is clearly established at the time of the conduct. Third, if plaintiff satisfies these burdens, the burden shifts to defendant to demonstrate that "no material issues of fact remain as to whether the defendant's actions were objectively reasonable in light of the law and information the defendant possessed at the time of [his or her] actions." Id. (citations omitted).
The parties essentially agree that defendant applied such pressure to plaintiff's arms that he later sought medical attention. Inmates have a clearly established constitutional right to be free from malicious and sadistic assaults by prison guards. See id. at 1220 ("It has long been established that convicted prisoners subjected to malicious and sadistic assaults by prison officials are entitled to at least the protection of the Eighth Amendment."). The only issue in dispute is whether plaintiff's actions justified defendant's use of force. As the Court discussed above, this is a factual issue on which defendant is not entitled to summary judgment. If defendant's use of force was not justified, he is not entitled to qualified immunity since he violated plaintiff's clearly established constitutional right. See id. (If "a reasonable jury could conclude on the evidence presented that officer used unnecessary force against plaintiff for no legitimate penal purpose" then qualified immunity is not warranted.). Therefore the Court cannot at this time rule that qualified immunity will shield defendant from liability. Defendant's motion for summary judgment based on qualified immunity is therefore overruled.
Plaintiff's second claim is for assault and battery.Amended Complaint (Doc. #6) filed January 11, 2000. In his motion for summary judgment, defendant does not address plaintiff's assault and battery claim. The Court therefore need not address this claim at this time.
II. Lack Of Prosecution
As noted above, the Court last heard from plaintiff on May 15, 2000, when it received a change of address letter which plaintiff had written the Department of Corrections. Plaintiff, who is on parole, has been on absconder status since November 6, 2000. Plaintiff did not respond to defendant's summary judgment motion and the past two orders which the Court has mailed to plaintiff have been returned. Under D. Kan. Rule 41.1, the Court "may at any time issue an order to show cause why a case should not be dismissed for lack of prosecution, and if good cause is not shown within the time prescribed by the show cause order, the court may enter an order of dismissal which shall be with prejudice unless the court otherwise specifies." D. Kan. Rule 41.1 (2001). The Court therefore orders plaintiff to show cause in writing on or before June 12, 2001 why this case should not be dismissed without prejudice for lack of prosecution.
IT IS THEREFORE ORDERED that defendants' Motion For Summary Judgment (Doc. #34) filed December 13, 2000 be and hereby is OVERRULED. IT IS HEREBY FURTHER ORDERED that plaintiff show cause in writing on or before June 12, 2001 why this case should not be dismissed without prejudice for lack of prosecution.