Opinion
CIVIL ACTION No. 97-3460-GTV
March 29, 2004
MEMORANDUM AND ORDER
Plaintiff Darren Eugene Perkins brings this action pursuant to 42 U.S.C. § 1983 against Defendants The Kansas Department of Corrections ("KDOC"), Les Derstein, Michael Nelson, William Cummings, Charles Simmons, Prison Health Services, Inc., and Dr. Ayeni, alleging several violations of his constitutional rights. Specifically, Plaintiff alleges that Defendants violated his Fourteenth Amendment equal protection and due process rights, his Eighth Amendment right to be free from cruel and unusual punishment, and the Ex Post Facto Clause of the United States Constitution.
This action is before the court on plaintiff's motions for summary judgment (Docs. 31, 41, 48), motion for entry of judgment (Doc. 60) and motion for hearing (Doc. 42), Defendants KDOC, Les Derstein, Michael Nelson, William Cummings and Charles Simmons's motion for summary judgment (Doc. 46), and Defendants Prison Health Services, Inc. and Dr. Ayeni's motion for summary judgment (Doc. 39) and motion to strike plaintiff's motions for summary judgment (Doc. 55). For the following reasons, plaintiff's motions are denied, Defendants KDOC, Les Derstein, Michael Nelson, William Cummings and Charles Simmons's motion is granted in part and denied in part, and Defendants Prison Health Services Inc. and Dr. Ayeni's summary judgment motion is granted and their motion to strike is denied as moot.
I. PROCEDURAL BACKGROUND
On November 11, 1997, Plaintiff filed two separate complaints. The complaints were combined in the same case. In his first complaint, Plaintiff claimed that Defendants KDOC, Les Derstein, Michael Nelson, William Cummings, and Charles Simmons (collectively "Prison Defendants") violated his Fourteenth Amendment equal protection and due process rights, his Eighth Amendment right to be free from cruel and unusual punishment, and the Ex Post Facto Clause of the United States Constitution. Specifically, Plaintiff alleged that Prison Defendants, for a period of thirteen consecutive months, forced him to wear a spit net over his head every time he left his prison cell and denied him exercise in the prison's recreational yard. In his second complaint, Plaintiff claimed that Defendants Prison Health Services, Inc. and Dr. Ayeni (collectively "Medical Defendants") viokted his Fourteenth Amendment equal protection and due process rights and his Eighth Amendment right to be free from cruel and unusual punishment. Specifically, Plaintiff alleged that Medical Defendants provided him inadequate medical care for his HIV virus because he was not treated with a particular drug.
On December 19, 1997, this court dismissed plaintiff's complaints sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). In the order, this court concluded that: (1) Prison Defendants did not violate plaintiff's due process rights because the restrictions imposed were reasonably related to the legitimate goal of maintaining order and security; (2) Prison Defendants did not violate plaintiff's right to be free from cruel and unusual punishment because no evidence suggested that the prison officials acted with deliberate indifference to his health or safety; and (3) Medical Defendants did not violate plaintiff's constitutional rights because a difference of opinion concerning the course of treatment for plaintiff's condition was insufficient to state a claim for relief.
Plaintiff appealed the dismissal of his complaints to the Tenth Circuit. See Perkins v. Kansas Dep't of Corr., 165 F.3d 803 (10th Cir. 1999). On appeal, the Tenth Circuit affirmed in part, reversed in part, and remanded plaintiff's case for further consideration. In its opinion, the Court of Appeals first directed this court to determine on remand whether plaintiff's request for damages and injunctive relief were barred by 42 U.S.C. § 1997e(e). Next, the Tenth Circuit held that this court erred in sua sponte dismissing plaintiff's due process claims against Prison Defendants. The Court concluded that this court did not have any evidence before it to engage in an analysis required by Sandin v. Conner, 515 U.S. 472, 484 (1995), to "determine whether the conditions of [his] confinement presented the type of atypical, significant deprivation that would implicate a liberty interest" under the Fourteenth Amendment's Due Process Clause. Perkins, 165 F.3d at 809. The Tenth Circuit also concluded that this court erred in sua sponte dismissing plaintiff's Eighth Amendment claims against Prison Defendants without at least ordering Prison Defendants to prepare a Martinez report. The Court of Appeals determined that Plaintiff presented sufficient allegations regarding his denial of outdoor exercise and face mask restrictions to state a claim. Id. at 810-11. The Tenth Circuit agreed with this court's determination that plaintiff's disagreement concerning the course of his medical treatment did not state a claim for relief against Medical Defendants under the Eighth Amendment. Finally, the Tenth Circuit directed to court to address plaintiff's equal protection and ex post facto claims.
II. FACTUAL BACKGROUND
The following facts are taken from the record and are either uncontroverted or viewed in a light most favorable to Plaintiff's case. Immaterial facts and facts not properly supported by the record are omitted.
During all relevant times in his complaints, Plaintiff Darren Eugene Perkins was a state prisoner housed in administrative segregation at the El Dorado Correctional Facility in El Dorado, Kansas. Plaintiff alleges that since September 1993, he has been infected with the Human Immunodeficiency Virus ("HIV"), the virus that causes AIDS.
In July 2003, plaintiff's sentence expired and he was released from incarceration without parole.
The Martinez report discloses that Plaintiff was involved in several spitting incidents during his incarceration at El Dorado since January 1994. On two occasions in 1994 and three occasions in 1995, Plaintiff spit on prison officials. In 1996, three separate disciplinary reports show that Plaintiff was charged with spitting on another inmate, spitting on a nurse who was passing out medication, and that he threatened to spit on a prison officer.
Plaintiff's claims stem from a spitting incident that occurred on January 21, 1997. On that day, Plaintiff spit on two officers while he was being escorted to the prison's recreational yard for outdoor exercise. At a disciplinary hearing, Plaintiff pleaded guilty to battery charges. An interdepartmental memorandum from Defendant Les Derstein to Defendant Warden Michael Nelson shows that due to the January 21 spitting incident, extra security measures were needed to regulate plaintiff's "Violent" and "disruptive" behavior. The memorandum indicated that Plaintiff would be restricted from out-of-cell exercise periods for one week, and that an extension of this restriction would require the warden's approval. The memorandum further provided that a therapist would prepare an in-cell exercise program for Plaintiff.
In addition to the exercise restriction, prison officials placed Plaintiff on "spit net status." This restriction required Plaintiff to wear a spit net over his head every time he left his prison cell. Prison officials did allow Plaintiff to remove the spit net to take showers. While on spit net status, prison officials reported that Plaintiff destroyed his spit net three times when they asked him to put it on. In November 1997, prison officials placed a security alert on plaintiff's cell because Plaintiff allegedly had been making an increasing number of threats against staff. Plaintiff remained on spit net status until March 11, 1998. Even after he was removed from this restriction, plaintiff's behavior continued. In 1999, Plaintiff was cited for spitting three times, and threatening to spit on an officer on one occasion.
During the thirteen months prison officials required Plaintiff to wear a spit net, Plaintiff was denied the opportunity for outdoor exercise in the recreation yard. Internal memoranda provided by Plaintiff, dated as late as August 1, 1997, show that Defendants Derstein and Nelson extended his outdoor exercise restriction on a weekly basis due to the January 21 spitting incident. Moreover, Defendants do not contest the duration of plaintiff's outdoor exercise restriction. An affidavit from a prison officer states that Plaintiff "has not been restricted from access to outdoor yard since March of 1998." The prison officer also explained that plaintiff's outdoor yard privileges were restricted because the January 21 spitting incident occurred in conjunction with his recreation time.
III. STANDARD OF REVIEW
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." Fed.R.Civ.P. 56(c). Lack of a genuine issue of material fact means that the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). 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."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.Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 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. Anderson, 477 U.S. at 256. "[A] party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial."Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider the record in the light most favorable to the nonmoving party. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
IV. DISCUSSION A. 42 U.S.C. § 1997e(e) as a Bar to plaintiff's Requests For Relief
At the direction of the Tenth Circuit, the court must initially determine whether § 1997e(e) of the Prison Litigation Reform Act (PLRA) prohibits plaintiff's claims for compensatory, punitive, and nominal damages, as well as his claims for injunctive relief.
The PLRA, in pertinent part, provides that "no Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). By its plain language, § 1997e(e) requires a prisoner to allege a physical injury to bring a claim for "mental or emotional injury." While this requirement clearly applies to claims for compensatory damages, the Tenth Circuit has held that § 1997e(e)'s physical injury limitation does not affect claims for nominal damages, punitive damages, and injunctive relief. See Searles v. Van Bebber, 251 F.3d 869, 879-81 (10th Cir. 2001) (nominal and punitive damages); Perkins, 165 F.3d at 808 (declaratory and injunctive relief). Accordingly, the court determines that plaintiff's claims for nominal damages, punitive damages, and injunctive relief are not barred by § 1997e(e).
The court must now determine whether plaintiff's allegations of physical injury are sufficient for him to pursue his claims for compensatory damages. To recover compensatory damages for mental and emotional injury, Plaintiff must prove that he suffered more than a de minimus physical injury. See Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002); Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). As the Tenth Circuit's opinion recognized, Plaintiff primarily alleges that he suffered mental and emotional harm as a result of the outdoor exercise and spit net restrictions. See Perkins, 165 F.3d at 807. The Tenth Circuit, however, also observed that "Plaintiff does allege physical harm as well, because he claims his mental anguish has been so severe that it has caused his physical condition to deteriorate and has hastened his death." Id.
At this stage of the litigation, the court believes that Plaintiff has provided sufficient evidence of physical injury to recover compensatory damages for his mental and emotional injuries. In an affidavit, Plaintiff states that Prison Defendants' actions have caused his HIV virus to progress rapidly, taking "years of health and life" from him The court notes, however, that this determination is tentative because plaintiff's allegations of physical injury are susceptible to several proximate cause issues.
The court observes that Prison Defendants' motion for summary judgment does not address whether plaintiff's allegations satisfy the physical injury requirement.
For instance, the facts that: (1) Plaintiff has a pre-existing condition (HIV); and (2) he alleges Medical Defendants provided him inadequate medical care provide other reasonable explanations for his deteriorating physical condition.
Finally, although plaintiff's claims for injunctive relief are not barred by § 1997e(e), the court determines that plaintiff's requests for injunctive relief are moot because he has been released from prison.See Green v. Branson, 108 F.3d 1296, 1299-1300 (10th Cir. 1997) (holding that a prisoner's claims for injunctive and declaratory relief were moot because the prisoner had been released from incarceration).
B. Eighth Amendment Claims Against Prison Defendants
Plaintiff next claims that Prison Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment when they denied him outdoor exercise for a period of thirteen months and forced him to wear a spit net over his head every time he left his cell."The Eighth Amendment, applied to the states through the Due Process Clause of the Fourteenth Amendment, prohibits infliction of cruel and unusual punishments on those convicted of crimes." Miller v. Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991). "It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject" to this prohibition. Helling v. McKinney, 509 U.S. 25, 31 (1993). "In order to hold prison officials liable for violating an inmate's right to humane conditions of confinement, two requirements must be met." Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998). These two requirements consist of an objective and subjective component.Id.
"The objective component requires that the alleged deprivation be `sufficiently serious.'" Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). "The subjective component requires the jail official to have a `sufficiently culpable state of mind.'" Id. (quotingWilson, 501 U.S. at 297). "In prison conditions cases that state of mind is one of `deliberate indifference' to inmate health or safety. . . ." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citation omitted). This standard requires the prison official to know of and disregard "an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837.
1. Lackof Outdoor Exercise Claim
Plaintiff first claims that Prison Defendants violated the Eighth Amendment by denying him outdoor exercise for a period of thirteen consecutive months."[T]here can be no doubt that total denial of exercise for an extended period of time would constitute cruel and unusual punishment prohibited by the Eighth Amendment." Housley v. Dodson, 41 F.3d 597, 599 (10th Cir. 1994) (citing Mitchell v. Rice, 954 F.2d 187, 191 (4th Cir. 1992)); see also Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) ("Deprivation of outdoor exercise violates the Eighth Amendment rights of inmates confined to continuous and long-term segregation."); Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996) ("Lack of exercise may rise to a constitutional violation in extreme and prolonged situations where movement is denied to the point that the inmate's health is threatened."); Anderson v. Romero, 72 F.3d 518, 527 (7th Cir. 1995) ("To deny a prisoner all opportunity for exercise outside his cell would, the cases suggest, violate the Eighth Amendment unless the prisoner posed an acute security risk if allowed out of his cell for even a short time.")
Prison Defendants argue that they are entitled to summary judgment as to this claim because: (1) legitimate security reasons justified plaintiff's restriction from outdoor exercise; and (2) they are entitled to qualified immunity. The court disagrees.
The court first concludes that Plaintiff has satisfied the objective element of the Eighth Amendment analysis because he has alleged the deprivation of a basic human need. See Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) ("[S]ome form of regular outdoor exercise is extremely important to the psychological and physical well being of inmates. . . ."); LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) ("[O]rdinarily the lack of outside exercise for extended periods is a sufficiently serious deprivation . . . to satisfy [the] objective test.").
The court next concludes that there is a genuine issue of material fact as to whether Prison Defendants were deliberately indifferent to plaintiff's need for outdoor exercise. Prison Defendants argue that exceptional circumstances justified plaintiff's restriction for outdoor exercise. Specifically, Prison Defendants assert that Plaintiff posed an acute security risk because he threatened to infect prison officials with the HIV virus. The nature of this threat, Prison Defendants claim, made outdoor exercise impossible for Plaintiff. Prison Defendants note that the recreational yard is surrounded by chain link fences, which would allow Plaintiff to spit on prison officers or inmates walking by.
The court determines that Defendants have not sufficiently explained why Plaintiff was not given some opportunity for outdoor exercise. Prison Defendants state that because the January 21 spitting incident occurred in conjunction with plaintiff's outdoor recreation time, they denied him his outdoor exercise privileges. Prison Defendants, however, did not just temporarily deny Plaintiff his outdoor exercise privileges. Prison Defendants denied Plaintiff all outdoor exercise for a lengthy period of time, providing Plaintiff with only an in-cell exercise program prepared by an activity therapist. An internal memorandum provided by Plaintiff shows that Defendants Derstein and Nelson initially restricted plaintiff's outdoor exercise privileges for only one week and that any extensions of this restriction required Defendant Nelson's approval. Plaintiff further provided this court with a series of memoranda, dated as late as August 1, 1997, indicating that Defendants Derstein and Nelson extended plaintiff's outdoor exercise restriction on a weekly basis, expressly citing the January 21 spitting incident as the reason for the extension. This documentation, in addition to several administrative grievances filed by Plaintiff regarding his outdoor exercise restriction, establishes that Prison Defendants knew of the outdoor exercise restrictions and provides evidence from which a jury could infer that Prison Defendants were aware of a substantial risk to plaintiff's health and they disregarded that risk. Prison Defendants' penological justifications for their actions are insufficient to entitle them to summary judgment.
The court also rejects Prison Defendants' argument that they are entitled to qualified immunity. Qualified immunity shields an individual government official performing discretionary functions from liability for civil damages insofar as his or her 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); Butler v. City of Prairie Village, 172 F.3d 736, 745 (10th Cir. 1999). The relevant inquiry is whether plaintiff's asserted Eighth Amendment rights were clearly established such that a reasonable person in Prison Defendants' position would have known that his or her conduct violated those rights. Moore v. City of Wynnewood, 57 F.3d 924, 931 (10th Cir. 1995). "In showing that the law was clearly established, the plaintiff does not have to show that the specific action at issue had been held unlawful, but the alleged unlawfulness of the defendant's conduct must be apparent in light of preexisting law." Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1260 (10th Cir. 1998) (citation omitted). "The plaintiff may satisfy his or her burden by showing that there is a Supreme Court or Tenth Circuit opinion on point, or that his or her proposition is supported by the weight of authority from other courts." Id. (citation omitted). The court determines that the relevant law was clearly established in this case. See Housley, 41 F.3d at 599.
2. Spit Net Restriction Claim
Prison Defendants argue that they are entitled to summary judgment on plaintiff's Eighth Amendment claim concerning his spit net status because they had a legitimate penological interest in forcing Plaintiff to wear the spit net. The court agrees.
The Martinez report reflects that Plaintiff had a history of spitting on prison staff prior to the January 21, 1997 spitting incident. Prison Defendants also cite several threats made by Plaintiff toward prison staff concerning his intentions to infect them with the HIV virus by spitting on them. Because of plaintiff's repeated behavior and concerns for the safety of prison staff and other inmates, Prison Defendants required Plaintiff to wear a spit net over his head every time he left his cell for a period of thirteen months.
The court concludes that Prison Defendants' conduct does not rise to the level of an Eighth Amendment violation. The spit net restriction is reasonably related to the legitimate goal of maintaining safety and security of the prison. Accordingly, plaintiff's Eighth Amendment claims pertaining to the spit net restriction are dismissed.
C. Fourteenth Amendment Due Process Claims Against Prison Defendants
Plaintiff next claims that the spit net and outdoor exercise restrictions imposed by Prison Defendants violated his Fourteenth Amendment due process rights.
States may create liberty interests that are protected under the Due Process Clause of the Fourteenth Amendment, but those interests are generally limited to freedom from restraint which imposes "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. InSandin, the Supreme Court held that a prisoner did not have a liberty interest protected under the Due Process Clause despite the fact that prison officials violated mandatory prison regulations when they transferred Sandin to segregation. Id. at 487. In its analysis, the Court compared the conditions imposed on inmates in disciplinary segregation with the conditions in administrative segregation and protective custody. Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir. 2002) (citing Sandin, 515 U.S. at 486). A court therefore must have evidence of the degree and duration of plaintiff's restrictions, as compared to typical inmates, to adequately determine whether confinement has created an "atypical, significant" hardship.Id. at 1226.
The court concludes that Prison Defendants are not entitled to summary judgment on plaintiff's due process claim concerning the outdoor exercise restriction. The record shows that Prison Defendants confined Plaintiff to his cell without outdoor exercise for thirteen months. In support of his allegations that his punishment was "atypical," Plaintiff provided affidavits from two other inmates, Richard Harrison and Larry Milburn. Mr. Harrison's affidavit stated that when prison officials have placed him on spit net status, he was still allowed to exercise outside. Mr. Milburn's affidavit stated that he has spat on prison officers on several occasions and that prison officials never forced him to wear a spit net or denied him outdoor exercise.
For the reasons stated in the court's analysis of plaintiff's Eighth Amendment spit net restriction claim, the court concludes that plaintiff's spit net restriction does not violate the due process clause of the Fourteenth Amendment.
Prison Defendants have not provided evidence to this court addressing the degree and duration of plaintiff's outdoor exercise restriction as compared to other inmates. Id. In a conclusory fashion, Prison Defendants argue that "an inmate may be restricted from [the] outdoor yard while on a spit net restriction if the spitting incident occurs in connection with his outdoor yard exercise." Despite Prison Defendants' contention that plaintiff's outdoor exercise restriction is reasonably related to legitimate penological interests, the court concludes that genuine issues of material fact exist as to whether plaintiff's outdoor exercise restriction rises to the level of an "atypical and significant hardship."
On appeal, the Tenth Circuit noted Prison Defendants' argument "that the conditions of plaintiff's confinement do not represent an atypical and significant hardship because `it is ordinary for prisoners to be locked down in segregation for various offenses and to be isolated from others due to extreme behavior.'" Perkins, 165 F.3d at 809. Prison Defendants' summary judgment brief contains this argument verbatim. The Tenth Circuit concluded that this argument did "not fully address both the duration and degree of plaintiff's restrictions as compared with other inmates." This court agrees.
Finally, Prison Defendants' argument that they are entitled to qualified immunity as to plaintiff's due process claim is denied.See e.g., Hanrahan v. Doling, 331 F.3d 93, 99 (2d Cir. 2003) (stating that "[w]hatever confusion Sandin may have left in its wake, defendants do not argue, nor could a credible argument be made, that it was not clearly established at the time of the alleged violations. . . .").
D. Ex Post Facto Claims Against Prison Defendants
Plaintiff also claims that Prison Defendants violated the Ex Post Facto Clause of the United States Constitution because the outdoor exercise and spit net restrictions have increased his punishment beyond what is contemplated by the law. plaintiff's claim is without merit.
"The ex post facto prohibition forbids the Congress and the States to enact any law `which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.'" Weaver v. Graham 450 U.S. 24, 28 (1981) (citations omitted) (italics in original). Thus, ex post facto analysis "is concerned only with whether a statute assigns more disadvantageous criminal or penal consequences to an act than did the law in place when the act occurred. . . ." Id. at 31 n. 13;see also Smith v. Scott, 223 F.3d 1191, 1193-94 (10th Cir. 2000) (noting that the ex post facto prohibition extends to regulations adopted by agencies to whom the legislature has delegated its lawmaking power). Plaintiff has not identified any law or regulation that has retroactively increased his punishment. Prison Defendants' decisions to place outdoor exercise and spit net restrictions on Plaintiff do not fall within the boundaries of the Ex Post Facto Clause. Accordingly, plaintiff's ex post facto claims are dismissed.
E. Equal Protection Claims Against Prison Defendants
Plaintiff's complaint against Prison Defendants also alleges that they violated his Fourteenth Amendment equal protection rights. Specifically, Plaintiff claims that Prison Defendants punished him more severely than other inmates for spitting on prison staff. Again, Plaintiff supports his allegations with the affidavits of inmates Richard Harrison and Larry Milburn.
In order for Plaintiff to state an equal protection claim, he must allege that Defendants "treated him differently because of [a] suspect classification," and "prove that the distinction between himself and other inmates was not reasonably related to some legitimate penological purpose." Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994) (citations omitted); see Gwinn v. Awmiller, 354 F.3d 1211, 1228 (10th Cir. 2004) ("absent an allegation of a suspect classification, our review of prison officials' differing treatment of various inmates is quite deferential");Pierpoint v. Muckenthaler, No. 94-3141-GTV, 1997 WL 94258, at *3 (D. Kan. Jan. 28, 1997) (citations omitted) (stating that if a prisoner does not allege either a suspect classification or the violation of a fundamental right, he must show that the defendants' actions were not rationally related to a legitimate penological interest).
Plaintiff appears to claim that he is being subjected to harsher punishment because of his HIV status. Other district courts, however, have held that persons suffering from AIDS are not members of a suspect class for equal protection analysis purposes. See e.g., Spence v. Miles Lab., 810 F. Supp. 952, 962 (E.D. Tenn. 1992) (citations omitted). The alleged distinction, therefore, is subject to rational basis review, which presumes constitutionality and under which Plaintiff bears the burden of establishing irrationality or arbitrariness. United States v. Phelps, 17 F.3d 1334, 1344-45 (10th Cir. 1994).
At this time, the court will not dismiss plaintiff's equal protection claim against Prison Defendants. The court notes that Prison Defendants' summary judgment motion does not seek summary judgment on this claim. Furthermore, the court determines that sua sponte dismissal is not warranted because the court has already ruled that genuine issues of material fact exist as to plaintiff's Eighth Amendment lack of outdoor exercise claim and Fourteenth Amendment due process claim, despite Prison Defendants' proffered penological justifications for their actions. The court, however, will entertain a future motion by Prison Defendants regarding this claim.
F. Personal Participation
Prison Defendants argue that they are entitled to summary judgment on all of plaintiff's claims because he has failed to allege that they personally participated in the alleged misconduct. Liability pursuant to § 1983 requires direct, personal participation. See Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988) (stating that before liability may be imposed, a supervisor must have "participated or acquiesced" in the conduct which constitutes a constitutional deprivation); Bennet v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (explaining that "personal participation is an essential allegation in a section 1983 claim").The court concludes that Plaintiff has provided sufficient evidence of personal participation as to Defendants Derstein and Nelson. The documentation Plaintiff supplied to the court clearly establishes that Defendants Derstein and Nelson authorized plaintiff's outdoor exercise restrictions. The court, however, also concludes that Plaintiff has not provided any evidence of personal participation as to Defendants Charles Simmons and William Cummings, and he has not identified a policy or custom of KDOC to expose it to municipal liability. See Jarrett v. Schubert, No. 97-2686-GTV, 1998 WL 471992, at *7 (D. Kan. July 31, 1998) (citations omitted) (stating that a plaintiff seeking to expose a municipality to liability under § 1983 must identify an official policy or custom that caused the alleged injury because municipalities may not be held liable under § 1983 on a respondeat superior theory). Accordingly, the court grants summary judgment regarding plaintiff's remaining claims in favor of Defendants KDOC, Charles Simmons and William Cummings. These defendants are dismissed from this action.
G. Claims Against Prison Defendants in their "Official Capacity"
Prison Defendants argue that to the extent that Plaintiff is attempting to advance his claims against them in their "official capacity" (as opposed to "individual capacity"), such claims must be dismissed because: (1) they do not qualify as a "person" under § 1983; and (2) they are entitled to Eleventh Amendment immunity. The court agrees that Plaintiff may not maintain such claims against the remaining Prison Defendants in their official capacities. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) ("[N]either a State nor its officials acting in their official capacities are `persons' under § 1983.");Quern v. Jordan, 440 U.S. 332, 345 (1979) (holding that Congress did not abrogate states' Eleventh Amendment immunity when it enacted § 1983). Therefore, to the extent that Plaintiff advances any "official capacity" claims against the remaining Prison Defendants, the court dismisses those claims.H. Due Process and Equal Protection Claims Against Medical Defendants
Medical Defendants filed a motion for summary judgment to seek clarification from this court that no outstanding claims remain against them after the Tenth Circuit affirmed this court's dismissal of Plaintiff's inadequate medical care claims.
Plaintiff's complaint against Defendants Prison Health Services, Inc. and Dr. Ayeni asserted violations of his Fourteenth Amendment equal protection and due process rights and his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff specifically claimed that he was receiving inadequate medical treatment for his HIV virus because he received only two medications for his condition, AZT and 3TC, which only slowed down the reproduction of his virus. Plaintiff alleged that he will become immune to those two drugs unless he also received a protease inhibitor, which he claims would reduce the virus to non-detective levels.
This court's initial order sua sponte dismissing plaintiff's complaints addressed his inadequate medical care claims under the Eighth Amendment. This court held, and the Tenth Circuit affirmed, that plaintiff's disagreement about the course of his medical treatment did not amount to a deliberate indifference to his medical needs in violation of the Eighth Amendment. The court now concludes that Plainitff's allegations that he received inadequate medical care based on the denial of a protease inhibitor do not establish a due process or equal protection violation.
As discussed previously, for a prisoner's due process rights to be implicated, there must be an "atypical, significant deprivation [of rights] in which the state might conceivably create a liberty interest."Sandin, 515 U.S. at 486. plaintiff's allegations of inadequate medical care do not articulate the type of atypical, significant deprivation that would encompass a liberty interest protected by the due process clause. The materials submitted by Plaintiff demonstrate that prison staff recognized his condition as serious and that he received ongoing medical care while in prison.
Second, the court determines that plaintiff's equal protection claim is without merit. First, plaintiff's complaint vaguely alleges that one or two other inmates with the AIDS virus received a protease inhibitor. plaintiff's allegations do not implicate a suspect classification and are therefore subject to rational basis review. Based on the fact that Plaintiff merely disagrees with the course of his medical care, the court concludes that Plaintiff cannot make a colorable argument to satisfy his burden of showing that Medical Defendants' decisions regarding his treatment were irrational or arbitrary.
Accordingly, Defendants Prison Health Services, Inc. and Dr. Ayeni's motion for summary judgment is granted and they are dismissed from this action. Their motion to strike plaintiff's motion for summary judgment is denied as moot.
I. plaintiff's Motions
The court concludes that plaintiff's motions for summary judgment and entry of judgment are denied because genuine issues of material fact exist as to plaintiff's remaining claims in this case. The court also denies plaintiff's motion for a hearing because the court determines that a hearing is unnecessary at this time.
V. CONCLUSION
In summary, the court makes the following rulings: (1) § 1997e(e) does not bar plaintiff's claims for punitive or nominal damages; (2) plaintiff's requests for compensatory damages are not barred by § 1997e(e), but this ruling is subject to Plaintiff proving that Prison Defendants' outdoor exercise restriction was the proximate cause of his physical injuries; (3) plaintiff's requests for injunctive relief are denied because he has been released from prison; (4) plaintiff's Eighth Amendment and Fourteenth Amendment due process claims against Prison Defendants regarding his outdoor exercise restriction remain in the case because genuine issues of material fact exist; (5) plaintiff's Eighth Amendment and Fourteenth Amendment due process claims against Prison Defendants regarding his spit net restriction are dismissed because no genuine issues of material fact exist; (6) plaintiff's Fourteenth Amendment equal protection claim against Prison Defendants remains in the case, but the court will entertain a future motion for summary judgment on this claim; (7) Prison Defendants KDOC, Charles Simmons and William Cummings are dismissed from this action, but Prison Defendants Les Derstein and Michael Nelson remain; (8) plaintiff's claims against the remaining Prison Defendants in their official capacities are dismissed; (9) all outstanding claims against Medical Defendants are dismissed, and Medical Defendants are dismissed from this action; (10) plaintiff's motions for summary judgment, motion for entry of judgment, and motion for hearing are denied.
IT IS, THEREFORE, BY THE COURT ORDERED that: (1) plaintiff's motions for summary judgment (Docs. 31, 41, 48), motion for entry of judgment (Doc. 60) and motion for hearing (Doc. 42) are denied; (2) Defendants KDOC, Les Derstein, Michael Nelson, William Cummings and Charles Simmon's motion for summary judgment (Doc. 46) is granted in part and denied in part; (3) Defendants KDOC, William Cummings and Charles Simmons are dismissed as parties to this action; (4) Defendants Prison Health Services, Inc. and Dr. Ayeni's motion for summary judgment (Doc. 39) is granted and their motion to strike plaintiff's motions for summary judgment (Doc. 55) is denied as moot; and (5) Defendants Prison Health Services, Inc. and Dr. Ayeni are dismissed as parties to this action.
Copies of this order shall be transmitted to pro se plaintiff Darren Perkins and counsel of record.
IT IS SO ORDERED.