Opinion
Civil Action No. 01-3097-KHV
April 30, 2003.
MEMORANDUM AND ORDER
Floyd E. McNeal, an inmate at the El Dorado Correctional Facility ("EDCF") in El Dorado, Kansas, brings suit against Sgt. Michael P. W. Stone under 42 U.S.C. § 1983 for excessive force in violation of the Eighth Amendment to the United States Constitution. This matter comes before the Court on defendant's Motion For Summary Judgment (Doc. #55) filed December 13, 2002. For reasons stated below, the Court overrules defendant's 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 non-moving 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 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.
II. Facts
The following facts are either uncontroverted or construed in a light most favorable to plaintiff:
The memorandum in support of defendant's motion for summary judgment does not comply with D. Kan. Rule 56.1. In many of his fact paragraphs, defendant does not refer with particularity to those portions of the record upon which he relies. See Memorandum In Support Of Officer Stone's Motion For Summary Judgment ("Defendant's Memorandum") (Doc. #56) filed December 13, 2002 ¶¶ 2, 3, 4, 5, 9, 10, 12, 13. With respect to those facts, the Court accepts only the facts which plaintiff admits are uncontroverted. In addition, the Court does not consider factual assertions which defendant sets forth only in the argument section of his brief and not in his numbered fact paragraphs. See Defendant's Memorandum at 7-8 (discussing facts surrounding use of force and investigation thereof for first time in argument section). Because defendant did not file a reply brief, the Court accepts as true the additional facts set forth by plaintiff in opposition to defendant's motion. See D. Kan. Rule 56.1(c).
On December 15, 2000, Stone, a member of the EDCF special security team, assisted with transporting plaintiff and another inmate, Vondell Kelly, to a courthouse in Butler County, Kansas. While plaintiff was locked inside a holding cell at the courthouse, he was loud and disruptive and made argumentative comments toward Stone. Stone attempted to use an electronic control device to subdue plaintiff, but he accidentally shocked Kelly, the other inmate. Stone then shocked plaintiff twice. After the incident, a nurse at EDCF examined plaintiff and determined that although he had two "signature marks" on his arm, he required no medical treatment.
Although the record is not clear, it appears that Stone wore transmitters on his belt that could electronically shock the two inmates, who were in separate holding cells.
Four days later, on December 19, 2000, Staff Sgt. Kenneth L. McGuire, the officer in charge of the special security team, investigated the incident. McGuire determined that Stone had violated Kansas Department of Corrections ("KDOC") policy on the use of force. According to McGuire, KDOC policy states that an officer may activate an electronic control device only when it is apparent that a lesser degree of force will be ineffective, impractical or unsafe. McGuire found that under the policy, an officer should not use the device on an inmate who is locked in a cell unless the inmate is attempting to destroy property or tamper with the electronic device. McGuire concluded that Stone had used poor judgment because:
[f]irst, [he] did not give an audible tone on the device that would have indicated that he was about to activate the wrong device. Secondly, [he] should not have activated the device because [plaintiff] was not causing any problems besides being mouthy and loud while inside a cell. I feel that [plaintiff] may have gotten under [Stone's] skin and that this escalated the incident.
Exhibit 1 to Plaintiff's Memorandum In Opposition To Defendant's Motion For Summary Judgment ("Plaintiff's Memorandum") (Doc. #60) filed January 13, 2003.
Staff Sgt. T. J. Hermreck investigated the matter further. In a report dated February 16, 2001, Hermreck found that according to the electronic immobilization device use form — which the KDOC requires inmates to sign — an officer can activate the device only for the following actions:
A. Any outburst or quick movement.
B. Any hostile movement.
C. Any tampering with the device.
D. Any attempt to escape custody.
E. Any loss of vision of [the inmate's] hands by the control officer.
F. Failure to comply with verbal command for movement of [the inmate's] person.
G. Any overt act against any person within a fifty (50) feet vicinity.
Exhibit 2 to Plaintiff's Memorandum at 3. Hermreck determined that plaintiff (1) never attempted to tamper with the electronic control device; (2) never made a verbal threat of violence against anyone; (3) was behind a secured door at the time of activation; (3) never made a physical attempt to harm anyone, destroy property or escape; and (4) was in leg restraints, a waist chain with handcuffs and a black box at all times. Id. Hermreck concluded that in shocking plaintiff, Stone may have violated KDOC standards. Id. at 4.
The record does not explain what a black box is.
On March 1, 2001, Michael A. Nelson, EDCF warden, suspended Stone for three days. Nelson based the suspension on "gross misconduct or conduct grossly unbecoming a state officer or employee" in violation of K.S.A. § 75-2949f(a) and "exhibiting other personal conduct detrimental to state service which could cause undue disruption of work or endanger the safety of persons or property of others" in violation of K.S.A. § 95-2949(p). Exhibit 3 to Plaintiff's Memorandum at 1. Nelson noted that Stone had used the electronic control device when plaintiff (1) was confined in a secured room; (2) was not tampering with the device; (3) had not made any verbal threat of violence; (4) had not made any physical attempts to harm anyone, destroy property or escape; and (5) was in leg restraints, a waist chain with handcuffs and a black box. Id. at 2. Nelson concluded that Stone's use of the device violated Internal Management Policy and Procedure ("IMPP") 12-111, which states that the device "shall be used when it is necessary to temporarily immobilize a combative or unruly offender" or "when it is apparent that a lesser degree of force will be ineffective, impractical, or unsafe." Id. On March 7, 2001, after meeting with Stone, Nelson reduced the suspension to one day.
III. Analysis
Defendant asserts that he is entitled to summary judgment because under the circumstances, he used force which was necessary to restore and maintain order. Absolutely nothing in the record supports this assertion. Even the warden determined that defendant had used the electronic control device in violation of IMPP 12-111, at a time when plaintiff did not pose a physical or verbal threat to Stone or anyone else. On this record, defendant's motion for summary judgment is not only unfounded, it is frivolous. See Hudson v. McMillian, 503 U.S. 1, 7 (1992) (whether prison officers used excessive force depends on whether force was applied in good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm).
Defendant contends that he is entitled to qualified immunity because the record does not support a conclusion that he violated plaintiff's clearly established constitutional rights. "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). Here, the law has long been clearly established that prison officials cannot use excessive force against inmates. See Bafford v. Nelson, 241 F. Supp.2d 1192, 1204-05 (D.Kan. 2002). As discussed above, the record supports an inference that defendant did exactly that. Defendant is not entitled to qualified immunity on plaintiff's claim.
IT IS THEREFORE ORDERED that the defendant's Motion For Summary Judgment (Doc. #55) filed December 13, 2002 be and hereby is OVERRULED.