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Lewis v. Carrell

United States District Court, D. Kansas

September 10, 2014

TROY J. CARRELL, Defendant.


DANIEL D. CRABTREE, District Judge.

This matter comes before the Court on defendant's Motion for Summary Judgment (Doc. 40), filed August 8, 2013. Having considered the submissions of the parties and the relevant authorities, the Court finds that the motion should be GRANTED IN PART and DENIED IN PART.

I. Procedural History

Plaintiff is an inmate in the custody of the Kansas Department of Corrections' El Dorado Correctional Facility. He is proceeding pro se and filed this lawsuit under 42 U.S.C. § 1983 against a variety of defendants, including Special Security Team Officers Troy J. Carrell and Steven C. Chastain. He sued Officers Carrell and Chastain in their official and individual capacities for allegedly violating his federal constitutional rights. Remaining before the Court is plaintiff's suit against defendant Carrell in his individual capacity.

Plaintiff filed his Complaint and 44 pages of exhibits, sworn under penalty of perjury, on May 7, 2012. On July 9, 2012, after plaintiff failed to comply with an order addressing other defendants, the Court dismissed the action and denied relief against any defendants other than Carrell and Chastain. Thereafter, the Kansas Department of Corrections filed a Martinez Report, and defendant Carrell filed a Motion to Dismiss on September 21, 2012. Carrell's Motion to Dismiss asked the Court to dismiss plaintiff's claims against him because, he asserted, the Eleventh Amendment and principles of qualified immunity bar plaintiff's suit. Initially, plaintiff failed to respond in the time allowed by our local rules, and the Court sustained defendant's motion. In addition, because plaintiff had failed to serve defendant Chastain with process and more than 120 days had passed since plaintiff filed his action, the Court ordered plaintiff to show cause explaining his failure to serve process on Chastain.

Plaintiff responded to this order by asserting he had not received Carrell's Motion to Dismiss and so he asked the Court to reconsider. The Court vacated its order and directed plaintiff to respond to the motion and also to serve defendant Chastain with process no later than January 28, 2013. Plaintiff responded to part of the Court's directive: he filed a response to the motion to dismiss but never served defendant Chastain. Because plaintiff did not seek injunctive relief, the Court held that the Eleventh Amendment barred plaintiff's claim against defendant Carrell in his official capacity. Further, finding that plaintiff's "complaint state[d] a plausible Eighth Amendment violation that was clearly established at the time, the Court overrule[d] Officer Carrell's request to dismiss plaintiff's individual capacity claim." (Doc. 25 at 1) Finally, the Court dismissed plaintiff's claim against Officer Chastain without prejudice because plaintiff never served him with process. In sum, Officer Carrell is the only defendant in this action and the last claim standing sues him in his individual capacity.

Defendant Carrell argues in his Motion for Summary Judgment that plaintiff failed to exhaust all available administrative remedies, as the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a) requires. As the Court noted in its order of January 17, 2014, defendant's motion presents 11 separately numbered fact paragraphs and several pages of supporting legal argument. Our local rules obligated plaintiff to file his response to this motion no later than August 29, 2013. See D. Kan. Rule 6.1. Five days after this deadline expired, plaintiff submitted 32 pages of exhibits. ( See Doc. 45) This filing never explicitly stated it was submitted in response to the pending summary judgment motion or the Court's order. Moreover, nothing about this submission complied with Fed.R.Civ.P. 56 or D. Kan. Rule 56.1.

In an order entered January 17, 2014, the Court advised plaintiff that his submission did not comply with the rules and awarded him even more time, until February 7, to file a response that conformed to the rules. (Doc. 47) Plaintiff did not respond before the February 7 deadline. On June 13, 2014, the Court ordered plaintiff to show cause in writing no later than June 27, 2014, why he had failed to respond to defendant's motion in a timely fashion. The Court also explained why plaintiff's submission of exhibits was an inadequate response to the Motion for Summary Judgment, pointed plaintiff to the relevant rules so he could file a rule-conforming responsive brief, and ordered plaintiff to file any Opposition he wished the Court to consider by June 27, 2014. (Doc. 49) The Court warned plaintiff that if he failed to respond, the Court would consider and rule on defendant's Motion for Summary Judgment as an uncontested one. Plaintiff never responded to this order.

II. Legal Standards

Pursuant to D. Kan. Rule 7.4(b), if a non-movant fails to file a timely response to a motion, it "will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." By failing to file a response that comports with our Court's rules of practice, plaintiff has "waived the right to file a response or to controvert the facts asserted in the summary judgment motion." Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002). But mindful that courts liberally construe a pro se litigant's pleadings, see Haines v. Kerner, 404 U.S. 519, 520-21 (U.S. 1972), the Court must "make the additional determination that judgment for [defendant] is appropriate' under Rule 56." Reed, 312 F.3d at 1195.

"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 as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005) (quoting Fed.R.Civ.P. 56(c)); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The Court must "view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Garrison, 428 F.3d at 935. A "genuine" issue exists where sufficient evidence exists on either side of the issue such "that a rational trier of fact could resolve the issue either way. An issue of fact is material' if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson, 477 U.S. at 248).

The movant initially carries the burden "to point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The movant need only demonstrate "a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Adler, 144 F.3d at 671 (citing Celotex, 477 U.S. at 323). If the movant carriers this burden, the nonmovant must "go beyond the pleadings" and show admissible evidence "from which a rational trier of fact could find for the nonmovant." Id. (citing Fed.R.Civ.P. 56(e); Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 248). The essential question 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." Anderson, 477 U.S. at 251-52.

Our Court of Appeals also encourages use of additional procedures in cases like this one. "In pro se prisoner litigation, the Tenth Circuit endorses the filing of a Martinez report' where the prison constructs an administrative record detailing the factual investigation of the events at issue." Spurlock v. Simmons, 88 F.Supp.2d 1189, 1191 (D. Kan. 2000) (citing 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.'" Id. (quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991))). "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 [to be used in] a summary judgment determination." Id. (citing Green, 108 F.3d at 1302).

Here, plaintiff has submitted a Complaint (Doc. 1) and 44 pages of exhibits, sworn and made under a penalty of perjury. ( See Doc. 1) He also has submitted another 32 pages of exhibits (Doc. 45), presumably meant as a response to defendant's summary judgment motion. Consistent with the practice in our Circuit, defendant has submitted a Martinez report. The Court will consider the Martinez report and all of plaintiff's submissions as part of the summary judgment record.

III. Factual Background[1]

Plaintiff is an inmate in the custody of the Kansas Department of Corrections ("KDOC") and is incarcerated at the El Dorado Correctional Facility ("EDCF") in El Dorado, Kansas. Defendant Troy J. Carrell is and at all times relevant to this suit was employed by the KDOC as a Correctional Officer on EDCF's Special Security Team. On January 20, 2012, defendant Carrell conducted a pat-down search of plaintiff. During this search, plaintiff asserts, defendant grabbed his penis, applied pressure to it, and asked plaintiff, "How does that feel?" Plaintiff also asserts that defendant smiled and laughed while he did so. Plaintiff asserts that this humiliated and embarrassed him, and that he experienced pain, swelling, and blood in his urine as a result of the pressure defendant applied to his penis.

Sometime between January 20 and 27, 2012, plaintiff submitted an Inmate Grievance Form (later numbered Grievance # 17960) reporting the incident to his unit team at EDCF. The summary judgment record contains three different versions of plaintiff's grievance form. ( See Doc. 1-1 at 2-4; Doc. 1-1 at 12-13; Doc. 41-1 at 5-7) Defendant contends that the version he has submitted constitutes the original grievance form and that it contains plaintiff's handwritten account of the incident. ( See Doc. 41 at 6 (citing Doc. 41-1 at 6-7)) The two versions submitted by plaintiff differ from the one submitted by defendant. The most obvious differences are found in plaintiff's handwritten narrative of the circumstances constituting his grievance. In plaintiff's version he claims that Officer Carrell caressed his inner thigh, then grabbed his penis, applied pressure and asked, "How does that feel?" (Doc. 1-1 at 3) Plaintiff also asserts that later in the day, he experienced pain, swelling, and blood in his urine. ( Id. at 4) Conversely, in the version of plaintiff's narrative submitted by defendant, plaintiff asserts that Officer Carrell applied a "little pressure" to his genitalia. (Doc. 41-1 at 5-6) It appears plaintiff's two versions of the narrative, though purportedly prepared on or before January 27, 2012, refer to events occurring 12 days later on February 8, 2012. ( See Doc. 1-1 at 3; Doc. 1-1 at 12)

In addition to the three versions of plaintiff's narrative of his grievance, the summary judgment record also contains evidence that plaintiff submitted an "Inmate Request to Staff Member" form dated January 25, 2012, and someone identified only as "COI J. Fred" signed it on the same date. (Doc. 1-1 at 33) In this Inmate Request form, plaintiff asked for medical treatment because he had blood in his urine and swelling around his penis.[2] ( Id. at 33-34) The record contains no evidence that plaintiff submitted a "Property Damage/Loss or Personal Injury Claim Form" under KDOC Internal Management Policy and Procedure Section Number 01-118. ( See Doc. 45 at 24-26)

On January 27, 2012, plaintiff's Unit Manager, M. Bos, responded to plaintiff's grievance. (Doc. 1-1 at 5) Bos informed plaintiff that EDCF trains members of its security staff how to conduct pat searches properly, and such a search includes a search of the groin area. Plaintiff reacted to M. Bos's response to his grievance by appealing to EDCF's Warden, Warden Heimgartner, on January 30, 2012. The Warden responded to plaintiff's appeal by explaining that his review led him to conclude that no further action was necessary. (Doc. 1-1 at 1) This response by the Warden is dated February 7, 2012, but both defendant and plaintiff's submissions of the Inmate Grievance Form show that plaintiff received the Warden's response eight days later on February 15, 2012. (Doc. 41-1 at 4; Doc. 1-1 at 2)

Defendant asserts that plaintiff failed to appeal the Warden's rejection of plaintiff's Grievance # 17960 to the Secretary of Corrections. Defendant supports this assertion by relying on an affidavit from Trudi Temple, a Senior Administrative Assistant at EDCF who serves as custodian of the inmate grievance records. (Doc. 41-1 at 1-2) Ms. Temple testified in her Affidavit that she had reviewed the grievance appeal records pertaining to plaintiff and she did not find any indication among those records that plaintiff had appealed Grievance # 17960 to the Secretary of Corrections. Defendant also submitted an affidavit from Doug Burris, Corrections Manager in the Division of Facilities Management. (Doc. 41-1 at 9-10) Mr. Burris serves as the Secretary of Corrections' designee for reviewing and deciding inmate grievance appeals. ( Id. ) Mr. Burris testified in his Affidavit that he had reviewed grievance appeal records for the period January 1, 2012 to May 7, 2012, and those records show plaintiff took no appeal of a grievance to the Secretary of Corrections. ( Id. )

Plaintiff responds to defendant's assertions by EDCF's Warden by furnishing evidence that on February 15, 2012, he submitted an "Account Withdrawal Request" seeking $0.45 in postage so he could send legal mail to the Secretary of Corrections, Landon State Office Building, 900 Jackson, 4th Floor, Topeka, Kansas 66612. (Doc. 1-1 at 6) The withdrawal request contains the signature of someone named "Perkins, " and is dated February 15, 2012. ( Id. ) Plaintiff also has submitted an "Appeal of Grievance to Secretary of Corrections" form, along with a handwritten note he completed on or around February 15, 2012. ( Id. at 8-13) Plaintiff's exhibits include an "Inmate ...

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