United States District Court, D. Kansas
CHRISTOPHER M. DALE, Plaintiff,
(fnu) HARRIS, et al., Defendants.
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
On December 8, 2010, Overland Park police arrested plaintiff for aggravated assault in Johnson County. Plaintiff was convicted on the following charges in various Johnson County cases: two counts of felony aggravated robbery, misdemeanor theft, aggravated assault, and felony identity fraud. Plaintiff has remained in custody since his arrest, living in a segregation module at his own request because he believed he would get into a fight in general housing.
On December 3, 2011, plaintiff struck Deputy Provenzano in the collarbone during a dispute regarding whether plaintiff's cell window should remain closed. Prior to the altercation, plaintiff had kicked a trash can lid and refused officers' orders not to touch his cell window. Deputy Provenzano issued three citations to plaintiff for his behavior. Deputy Berry conducted an investigation of the incident, but plaintiff failed to participate. On December 6, 2011, Lieutenant Tompkins ("Lt. Tompkins") reviewed the relevant reports and determined that plaintiff should be subject to enhanced sanctions. These sanctions were implemented due to plaintiff's actions during the Provenzano incident, plaintiff's disciplinary history since December 8, 2010, his consistent classification as a maximum custody inmate, and plaintiff's living situation in administrative segregation at that time. Lt. Tompkins prepared the forms for plaintiff's hearing on December 6, 2011, but he was unable to conduct the hearing that day.
On December 9, 2011, plaintiff had a scheduling conference hearing for one of his criminal cases. During the transport to the court, plaintiff misbehaved in the parking garage by making a veiled threat that he had pliers in his possesion and engaging in behavior that appeared to be a refusal to cooperate. As a result, defendants decided plaintiff would not go to court and would instead go back to the detention center. On the way back, plaintiff spat on one official, physically resisted restraint, and slipped his hand out of handcuffs while officials restrained him. Defendants eventually re-handcuffed plaintiff while plaintiff continued to resist the handcuffs, tried to grab an officer's pepper spray, and grabbed an officer's hand. For safety, defendants placed plaintiff in a restraint chair. While plaintiff was in the restraint chair, medical staff inspected plaintiff's restraints and medical condition. The staff determined plaintiff suffered only minor injuries, his circulation was fine, and his verbal, motor, and eye-opening responses were normal.
Lt. Tompkins completed the forms from the Provenzano Incident and explained the sanctions to plaintiff on December 9, 2011. At that time, Lt. Tompkins gave plaintiff a copy of the December 6, 2011 Notice of Disciplinary Rights Form and the December 9, 2011 Disciplinary Board Report form. Sanctions lasted for thirteen days. Officers captured the December 3, 2011 and the December 9, 2011 incidents on video, which is included in the evidence.
On November 27, 2012, plaintiff brought this action against defendants alleging multiple constitutional violations stemming from the December 3, 2011 and the December 9, 2011 incidents. On November 4, 2013, defendants filed this motion for summary judgment against plaintiff (Doc. 42). Plaintiff failed to timely file a response. On November 27, 2013, the court issued a show cause order to plaintiff requiring him to explain why he failed to timely respond and to respond to the motion for summary judgment. (Doc. 46.) The show cause order notified plaintiff that his failure to comply with the order would likely result in the court considering defendants' motion as uncontested and granting it without further notice to plaintiff. The court gave plaintiff until December 11, 2013, to respond, but plaintiff failed to do so.
On December 6, 2013, the order was returned as undeliverable. (Doc. 47.) Although plaintiff was in custody at the time of the filings and may have been transferred to another facility, D. Kan. Rule 5.1(c)(3) imposes on all parties the duty to update their contact information. Each party must notify the clerk of a change of address. The court mailed notice to plaintiff's last address of record, which is sufficient notice pursuant to D. Kan. Rule 5.1(c)(3). Plaintiff has had sufficient time to notify the court of any change of address.
I. Legal Standard
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986)). Although the court construes pro se pleadings liberally, pro se plaintiffs still must come forward with specific factual support for their claims. Mumford v. Klingele , 08-3079-CM, 2009 WL 1360110, at *2 (D. Kan. May 14, 2009).
Plaintiff did not respond to defendants' motion for summary judgment. Under D. Kan. Rule 7.4(b), "a party or attorney who fails to file a responsive brief or memorandum within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such brief or memorandum." D. Kan. Rule 7.4(b). The court will consider and decide the motion as uncontested if the party fails to timely file a responsive brief. Id.
The court, however, will not grant a motion for summary judgment merely because it is unopposed. Bank Midwest, N.A. v. Millard , No. 10-2387-JAR, 2012 WL 4359060, at *1 (D. Kan. Sept. 24, 2012). The court must still analyze the motion under Fed.R.Civ.P. 56 to determine whether summary judgment is appropriate. Andy's Towing, Inc. v. Bulldog Bldg. Sys., Inc. , 10-2354-JTM, 2011 WL 2433679, at *2 (D. Kan. June 14, 2011) (citing Reed v. Bennett , 312 F.3d 1190, 1194 (10th Cir. 2002)). Fed.R.Civ.P. 56(e) allows the court to grant summary judgment when a party fails to respond to a motion only if the motion and supporting materials show the movant is entitled to it. Therefore, the court analyzes defendants' motion for summary judgment and grants it for the following reasons.
Defendants successfully invoke qualified immunity to defend against plaintiff's claims for excessive force and violation of due process rights. Qualified immunity protects government officials from individual liability under 42 U.S.C. § 1983 unless their conduct "violates clearly established statutory or constitutional rights of which a reasonable person would have known.'" Schroeder v. ...