Opinion
Case No. 01-3134-JAR
May 7, 2003.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING MOTION FOR APPOINTMENT OF COUNSEL
This matter is before the Court on Plaintiff Wesley I. Purkey's Motion for Summary Judgment (Doc. 53). Plaintiff also filed a Motion for Appointment of Counsel (Doc. 52). Plaintiff filed this action on April 11, 2001, against Leroy Green, the Sheriff of Wyandotte County, Kansas, as well as a number of other officials and personnel at the Wyandotte County Detention Center ("WCDC"). Plaintiff was incarcerated at the WCDC from October 30, 1998, when he was booked into the jail on charges of first degree murder and state parole violations, until May 4, 2000, when he was transferred to the custody of the Kansas Department of Corrections. He was initially in a pretrial detention status, but plead guilty to first degree murder on March 30, 2000; and was sentenced on April 28, 2000.
I. Plaintiff's Claims
In this action, filed under 42 U.S.C. § 1983, Plaintiff seeks declaratory relief and compensatory and punitive damages arising from Defendant's violation of his constitutional rights. Plaintiff specifically alleges that:
1) He was deprived of due process under the Fourteenth Amendment in being placed in solitary confinement without the requisite procedural protections, such as notice and hearing and written findings;
2) He was subjected to deprivations of basic human needs through degrading, unsanitary and oppressive conditions in the disciplinary segregation unit, in violation of the Eighth and Fourteenth Amendments;
3) He was required to shower while wearing handcuffs, in violation of the Eighth and Fourteenth Amendments;
4) His mail was screened, censored, not mailed and destroyed, in violation of the First and Fourteenth Amendments;
5) He was denied legal materials, and his legal materials were destroyed, in violation of the First and Fourteenth Amendments;
6) He was exposed to an obvious and substantial risk of serious harm, in violation of the Eighth and Fourteenth Amendments;
7) Defendants retaliated against him for filing administrative grievances and lawsuits by inciting other prisoners against him, placing him in solitary confinement, interfering with his correspondence to ABC 20/20 and screening, and denying him access to legal materials, all in violation of the First and Fourteenth Amendments.
Defendants answered, and on June 19, 2002, filed a Martinez report to which Plaintiff has responded. On July 11, 2002, this Court issued a Notice of Scheduling Order, directing that this case be set for a telephonic pretrial hearing, if no dispositive motion was filed within 90 days of that order. Defendants to date have not filed a dispositive motion. On January 8, 2003, Plaintiff filed this Motion for Summary Judgment.
II. 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 that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. 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."
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Plaintiff has wholly failed to meet this burden. He has not complied with D. Kan. Rule 56.1(a). Plaintiff has not supported his motion for summary judgment with a concise statement of uncontroverted material facts, nor has he provided a numbered statement of facts that references the portions of the records upon which he relies. Rather, in his motion for summary judgment, Plaintiff states that the reasons for granting the motion are as set forth in his response to the Defendants' Martinez report, noting that since the Martinez report can be considered as an affidavit in support of a defendant's motion for summary judgment, the prisoner's response to the Martinez report should be considered an affidavit in support of his motion for summary judgment. Plaintiff also asserts other facts in his motion, none of which are supported by a reference to the record.
The Court is mindful that Plaintiff proceeds pro se and it has abided by the general rule that the pleadings of a pro se litigant are construed liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But, Plaintiff's pro se status does not excuse him from complying with the rules of procedure. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
By merely referencing the Martinez report and his response to the report, Plaintiff has shown that there are many controverted facts that are material to his claims. The Martinez report and his response reveals that many facts are in dispute. A brief synopsis of controverted facts material to Plaintiff's claims justifies denial of his motion for summary judgment.
III. Discussion
A. Deprivation of Due Process in placing him in solitary confinement.
Generally, to prove a violation of procedural due process under the Fourteenth Amendment, Plaintiff must show that he was not provided with notice, an opportunity to respond or a hearing before the adverse action was taken. Plaintiff asserts that he was placed in disciplinary segregation without any of the "Wolff v. McDonnell requirements being satisfied." This unsupported assertion is controverted by the affidavit of Dewey Bond which states that after being issued a staff ticket on December 17, 1999 for creating a disturbance, Plaintiff had a disciplinary hearing on December 21, 1999. Plaintiff pleaded guilty to the charge on December 21, 1999. An incident ticket, incident report and disciplinary hearing report support Bond's affidavit.
See Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974).
B. Subjected to degrading, unsanitary and oppressive conditions in the disciplinary segregation unit, in violation of the Eighth and Fourteenth Amendments
To the extent Plaintiff was a pre-trial detainee at the time of the alleged incidents, his claims are for violation of his substantive due process rights under the Fourteenth Amendment, but the analysis is identical to the analysis of Eighth Amendment claims under § 1983. Lopez v. LeMaster, 172 F.3d 756, 759 n. 2 (10th Cir. 1999).
Plaintiff asserts that he was subjected to filthy conditions in his cell, the walls and floor of which were contaminated with urine and fecal matter, the water in his cell was completely shut off, his toilet was not usable, he was not provided with toothpaste, tooth brush or a drinking cup, and he was forced to shower in handcuffs. To prevail on an Eighth Amendment claim based on conditions of confinement, a prisoner must show that the condition complained of is "sufficiently serious" to implicate constitutional protection, and that prison officials acted with "`deliberate indifference' to inmate health or safety." A condition is sufficiently serious if it poses a substantial risk of serious harm to inmate health or safety. And, deliberate indifference means more than mere negligence; the prisoner must show reckless behavior, in which "a person disregards a risk of harm of which he is aware."
DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
Farmer, 511 U.S. at 834.
Id.
Defendants assert, and offer affidavits, that the cells were occasionally soiled by inmates, but were promptly cleaned and disinfected; and that jail trustees regularly picked up the trash that inmates would constantly throw from their cells to the common areas. Plaintiff asserts that the trustees did not adequately clean or disinfect soiled or trashed areas. The parties dispute whether inmates were placed in cells soiled by the human waste of other inmates. They dispute whether and how quickly Defendants repaired clogged toilets in the cells. They dispute how frequently and adequately the cells, common areas and showers were cleaned. The parties also dispute material facts concerning the water being shut off in the cells. Defendants assert that beginning on March 3, 2000, after a rash of incidents of inmates flooding their cells, Defendants shut off the water to toilets in the cells, except for two 30-minute periods twice a day; and that water to the sinks in the cell was never shut off. Plaintiff asserts that all of the water supply in the cells were shut off and that some days the water supply was only turned on once a day.
An inquiry into conditions of confinement necessarily relies on the particular facts of each situation; the "circumstances, nature, and duration" of the challenged conditions must be carefully considered. DeSpain, 264 F.3d 974) (citing Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)); and, "the length of time required before a constitutional violation is made out decreases as the level of filthiness endured increases." DeSpain, 264 F.3d 974 (quoting Whitnack v. Douglas County, 16 F.3d 954, 958 (8th Cir. 1994)).
There are also material issues of fact concerning Plaintiff's claim that Defendants deprived him of personal hygiene. Defendants assert that Plaintiff had no commissary privileges while he was in segregation, but that the reason that Plaintiff was in segregation was that he refused to move back to the maximum level pod after a brief stay in the infirmary. Furthermore, Defendants assert that although Plaintiff was required to shower in handcuffs, for purposes of officer safety, he had sufficient room to maneuver in the shower because they used two sets of handcuffs joined together. Plaintiff asserts that this practice caused him to fall in the shower. Defendants assert that there is adequate supervision of inmates while showering, as well as lighting and other safety precautions in the shower area. Moreover, Defendants assert that the officer who was present at the time Plaintiff fell, observed what appeared to be Plaintiff propelling himself out of the shower, rather than slipping and falling in the shower.
All of these disputed facts prevent the Court from determining, as a matter of law, whether Plaintiff was subjected to serious conditions and whether Defendants acted with deliberate indifference to inmate health and safety.
C. Mail was screened, censored, not mailed or destroyed, in violation of the First and Fourteenth Amendments
There are material disputed issues of fact about Defendants' handling of Plaintiff's mail. Plaintiff contends that the Defendants violated his First Amendment rights in their handling of mail he wanted sent to a producer of the 20/20 show on ABC television. Plaintiff claims that the Defendants censored this mail, refused to mail some of it, and tore up some of the items. Defendants claim, and attach affidavits and other documents in support of their claim, that on February 25, 2000, Plaintiff gave them approximately 400 documents to mail to the 20/20 producer, that personnel then began photocopying a number of these documents on Plaintiff's behalf in order to mail them in the postage-prepaid envelope provided by ABC. Because several individuals were involved in copying the documents, some documents were lost or misplaced and not immediately mailed. When the Defendants became aware of the situation, they accomplished photocopying all of the documents, and all of the documents were mailed to ABC by March 6, 2000, about nine days after Plaintiff requested that they be mailed. The volume of the documents exceeded the prepaid postage, so Defendants paid an additional $4.41 to mail the items to ABC.
While the First and Fourteenth Amendments are implicated when jail officials censor or interfere with a prisoner's correspondence to an outsider, there are material issues of fact that preclude a determination of this issue at this time. The parties dispute the scope of the interference or censorship. The Defendants contend it was a minor delay in mailing the materials; Plaintiff contends some of the materials were destroyed or never mailed.
Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996).
D. Exposure to an obvious and substantial risk of serious harm, in violation of the Eighth and Fourteenth Amendments
Plaintiff claims that the Defendants failed to protect him and wilfully and intentionally subjected him to a risk of serious harm. Plaintiff claims that the Defendants, with knowledge of prior assaults on Plaintiff by certain gang members, incited these gang members to take action against Plaintiff, and ignored his requests to not be placed in the same pod with them.
Defendants controvert these factual assertions, noting that Plaintiff, while repeatedly refusing to comply with Defendants' assignment of him to F-pod, gave no reason for refusing to go. Plaintiff did not identify any individuals who posed a risk of harm to him. In any event, when Plaintiff made specific allegations of problem inmates, Defendant was moved to the protective custody pod where he remained until he was transferred to the custody of the Kansas Department of Corrections.
These material issues of fact preclude a determination of whether the Defendants violated the Eighth and Fourteenth Amendments by subjecting Plaintiff to conditions posing a substantial risk of serious harm to his health or safety. There are material issues of fact concerning the Defendants' knowledge and deliberate indifference to Plaintiff's claimed risks. And, there are material issues of fact concerning the timeliness and adequacy of Defendants' response in moving Plaintiff into protective custody.
See Farmer, 511 U.S. at 834.
MacKay v. Farnsworth, 48 F.3d 491, 493 (10th Cir. 1995) (If an official is aware of the potential for harm but takes reasonable efforts to avoid or alleviate that harm, he bears no liability (citing Farmer, 511 U.S. at 844)).
E. Denial of access and destruction of legal materials, in violation of the First and Fourteenth Amendments.
Plaintiff contends that he was denied access to "meaningful legal research," law books, and his personal legal materials. This caused him to be "limited to the defendant's ambiguous paging system, also known as the `exact cite system,'" rendering him unable to cite pertinent cases in his briefs. Plaintiff further claims that the denial of access of legal materials forced him to omit pertinent allegations out of his civil rights complaint and made him unable to pursue legal theories.
Defendants dispute Plaintiff's assertions of fact. Defendants paint a very different picture, of their providing Plaintiff with legal materials and/or photocopying on numerous occasions in the year 2000. On three occasions in January 2000, on 10 occasions in February and on one occasion in March 2000, Plaintiff requested legal materials. On each occasion, the Defendants promptly, within a matter of hours and not more than 3 days, provided Plaintiff with the materials requested. These materials included Federal Rules of Civil Procedure, Black's Law Dictionary, a "1999 Sentencing Book," which were provided through the jail library, as well as numerous photocopies of case law and other legal materials. Defendants repeatedly complied with Plaintiff's requests for notary service, and mailing of documents to various government agencies. Defendants deny refusing to provide Plaintiff with requested materials. Defendants admit that beginning on March 2, 2000, they refused to produce further copies of legal documents or photocopy materials directly to him; but told Plaintiff that he could make such requests through his attorney. Defendants' refusal to continue to provide photocopying services to Plaintiff was caused by Plaintiff's verbal abuse of the staff person who was photocopying and delivering to Plaintiff the numerous items he requested.
While an inmate is to have access to legal materials and resources, in Lewis v. Casey, the Supreme Court held a claim for denial of access to the courts, requires the inmate to show that his restricted access to legal materials caused him actual injury, by hindering his "efforts to pursue a legal claim." Moreover, with respect to Plaintiff's claim that the jail's case citation system was inadequate, as the Supreme Court explained in Lewis, although the Fourteenth Amendment guarantees the right of access to the courts, which can be effectuated by providing an inmate with access to a prison law library.
518 U.S. 343, 351 (1996).
Id.
Because Bounds did not create an abstract, free-standing right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is sub-par in some theoretical sense.
Lewis, 518 U.S. at 351 (citing Bounds v. Smith, 430 U.S. 817, 823 (1977)).
To the extent that Plaintiff has attempted to show actual injury and prejudice, there are material issues concerning whether he was denied access at all.
F. Retaliation for filing administrative grievances and lawsuits
Plaintiff contends that in retaliation for his filing of administrative grievances and lawsuits, Defendants committed acts that form the basis of his other § 1983 claims: inciting other prisoners against him; placing him in solitary confinement; interfering with his correspondence to ABC 20/20 and screening; and denying him access to legal materials. As previously discussed, there are material issues of fact with respect to all of these claims of constitutional violations. For these reasons, the Court must deny summary judgment on Plaintiff's retaliation claim, as well.
G. Motion to Appoint Counsel
Plaintiff requests that the Court appoint counsel to represent him in this proceeding. In deciding this motion, the Court must "give careful consideration to all the circumstances with particular emphasis upon certain factors that are highly relevant to a request for counsel." These factors include: the merits of the plaintiff's claims; the nature of the factual issues raised in the claims, the plaintiff's ability to present his claims, and the complexity of the legal issues raised by the claims.
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985)).
Rucks, 57 F.3d 978, 979 (citing Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)).
In this case, although Plaintiff has failed to follow the procedural rules required to state, support and establish what facts are uncontroverted, he has demonstrated his ability to frame facts and state claims for relief under various constitutional provisions. His complaint well pleads facts and claims, and prays for declaratory, compensatory and punitive relief. He attached to his complaint a number of inmate communication forms, signifying his many complaints to the Defendants about jail conditions and other alleged constitutional violations. In his response to the Martinez report, as well as the instant summary judgment motion, Plaintiff demonstrates his understanding of what facts would be material to his claims, and he cites to statutory and case law for appropriate rules and principles.
While there are a number of claims in this case, Plaintiff demonstrates his understanding of what types of claims can be brought under the various constitutional provisions, Fourteenth Amendment, First, Fourth and Eighth Amendments. Perhaps Plaintiff's competency in stating claims and focusing on pertinent facts explains why defendants have not to date, filed a motion to dismiss or a summary judgment motion in this case. Plaintiff also has some experience in prosecuting a § 1983 action based on conditions and incidents in the jail. The legal issues in this case, and the factual assertions underlying the claims are not novel or difficult to state or analyze.
See Purkey v. Green, 28 Fed.Appx. 736, 2001 WL 998057 (10th Cir. 2001).
Therefore, Plaintiff's request for counsel is denied.
IT IS THEREFORE ORDERED that Plaintiff's Motion for Summary Judgment (Doc. 53) is DENIED.
IT IS FURTHER ORDERED that Plaintiff's Motion for Appointment of Counsel (Doc. 52) is DENIED.
IT IS SO ORDERED.