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Cox v. Denning

United States District Court, D. Kansas

September 29, 2014

NICOLAS A. COX, Plaintiff,
v.
SHERIFF FRANK DENNING, DEPUTY CORTRIGHT, DEPUTY MAHANEY, DEPUTY PROTHE, and DEPUTY MARRIOTT, Defendants.

MEMORANDUM AND ORDER

DAVID J. WAXSE, Magistrate Judge.

In this removal action, pro se Plaintiff asserts four claims under 42 U.S.C. §1983 for events occurring while he was a pretrial detainee in the custody of the Sheriff of Johnson County, Kansas, being held at the Johnson County Adult Detention Center ("Detention Center"). Specifically, Plaintiff asserts claims for compensatory and punitive damages against Defendant Sheriff Frank Denning, individually and in his official capacity as Sheriff of Johnson County, Kansas, and four deputies, individually and in their official capacities as deputy sheriffs.[1] As the basis for his claims, he alleges Defendants violated his constitutional rights by: (1) revoking his maximum custody "override" (which permitted him to reside in medium custody housing) in retaliation for filing grievances regarding the kosher religious diet; (2) using a female corrections officer to monitor the cameras viewing his cell; (3) enforcing the Detention Center's incoming postcard-only mail policy; and (4) forcing him to take his allowed daily recreation period between midnight and 5:00 a.m.

This matter is currently before the Court on the following motions: Defendants' Motion for Summary Judgment (ECF No. 120), and Plaintiff's Cross Motion for Summary Judgment (ECF No. 146) on Counts II, III and IV. The Court also takes up Plaintiff's "Objection of Magistrate [Judge] Ruling" (ECF No. 149), which the Court construes as a motion for reconsideration of the Court's January 14, 2014 denial of his motion to continue the discovery deadline, and Plaintiff's Motion for Appointment of Counsel (ECF No. 155). The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.

I. Facts

The following facts are either uncontroverted or, where controverted, are construed for purposes of summary judgment in the light most favorable to the party opposing the summary judgment motion.[2] Immaterial facts and factual averments not properly supported by the record are omitted.

A. Filing of Grievances

Plaintiff was arrested on October 7, 2011, and at all times relevant to the issues in this case was a pretrial detainee in the custody of the Sheriff of Johnson County, Kansas.

The Sheriff's Office strictly prohibits staff from retaliating against inmates for filing grievances.

The Johnson County Sheriff's Office Detention Bureau Inmate Guidebook states that inmates may be subject to disciplinary action for abuse of the grievance procedure. It also states that abuse or misuse of the inmate grievance procedures, appeal process or Inmate Communication Form is a medium violation.

On October 7, 2011, when Plaintiff was booked into custody, he signed an Inmate Orientation, Rules and Guidelines sheet, which notifies inmates about the grievance process.

On October 7, 2011, when Plaintiff was booked, his initial classification was "maximum custody." Plaintiff continued to be a maximum custody inmate through two more assessments in November 2011 and January 2012; however, the Detention Center staff decided to override this classification to medium custody due to good behavior, but the classification was never changed from maximum custody.

On October 20, 2011, Plaintiff was put on a 30-day observation list to pre-qualify for a kosher diet. He was eventually approved for a kosher diet and made no complaints about the food for several months.

On February 2, 2012, Plaintiff was found to have been attempting to ferment alcohol in a trash can in his cell, for which he was placed in disciplinary segregation pending investigation of the incident.

On February 22, 2012, because of two recent disciplinary citations including the alcohol incident, Plaintiff was reassessed and Sergeant Mahaney elected to continue the override of his maximum custody classification. This was communicated to Plaintiff.

In March 2012, Aramark, the independent contractor that supplies food to the Detention Center, switched its kosher meal plan to a "Lacto-Ovo" diet.

On March 22, 2012, Plaintiff submitted grievances that his diet was not kosher.

Around 9:00 a.m. on March 23, 2012, Plaintiff was moved from medium custody to maximum custody, which is a functional revocation of his override.

On March 23, 2012, Plaintiff submitted two more grievances to Aramark about the kosher/Lacto-Ovo diet it served, though these were also treated collectively.

On March 23, 2012 at around 4:30 p.m., Plaintiff was cited with medium violation #209 for misuse of the grievance process.

Sergeant Mahaney explained to Plaintiff in a correspondence dated March 27, 2012, that Plaintiff was not being religiously persecuted and that his override was revoked for rules violations.

Plaintiff received two formal notices of discipline setting forth the basis for the citation and punishment.

On March 27, 2012, Plaintiff was formally sanctioned for the grievances filed between March 22 and 23, 2012.

B. Cross-Gender Camera Surveillance

The Detention Center's policy states that any cross-gender observation will occur only if there is a reasonable need for the safety of the inmate or others.

The Detention Center policy is that all deputies are trained to manage all housing modules and units and will rotate assignments on a regular basis.

9-Side is a segregation wing of the Detention Center that consists of four 12-bed modules. 9-Side is used to house those inmates, regardless of classification, who would be inappropriate to house in general population due to disciplinary issues or administrative reasons, regardless of custody level. 9-Side is monitored from a single location which has the ability to monitor recreation for two inmates at a time. Inmates housed in 9-Side are the most closely monitored in the entire facility, requiring "intense supervision" because they pose a danger to the safety of themselves, other inmates and the facility staff. Each cell in 9-Side has a camera that is constantly recording and monitored.

Deputy Rowe is a female who has periodically been assigned to monitor the 48 cells in 9-Side. Deputy Rowe is completely qualified to monitor the 48 cells in 9-Side.

From April 1, 2012 to June 1, 2012, only males were housed in 9-Side.

C. Incoming Mail Policies

The Detention Center's incoming mail policy is to accept only postcards, privileged mail, and preapproved letters for incoming mail. Privileged mail is defined in the Inmate Guidebook as "mail received from licensed attorneys." The Detention Center's Directive: 16-02 defines privileged (legal) mail as mail "received by an inmate from a licensed attorney or the court." All other mail is considered to be non-privileged mail.

The Detention Center's policy is that any incoming non-privileged mail that violates its rules will be returned to sender without notice to the inmate, but an explanation will be provided to the inmate subsequent to the rejection. The notices Plaintiff received included the name of the sender of the incoming mail but did not list an address for the sender. The incoming mail was rejected and returned simultaneously as the notice was written.

Inmates can request the preapproval of non-postcard, non-privileged mail prior to the letter's arrival, a practice of which Plaintiff is aware. Plaintiff did not request approval of the letters he complains of in this case prior to their arrival.

Plaintiff had non-privileged letters rejected because they were not postcards and were not preapproved. Four letters sent to Plaintiff were returned to sender due to the Detention Center's mail policy. The four letters were from SRS, [3] Salvation Army, Prison Activist Resource Center ("PARC'), and Mietler Consulting. Plaintiff was never able to figure out where the letters from SRS, Salvation Army, and PARC came from because those organizations have many addresses.

Plaintiff was not afforded pre-deprivation remedies on returned mail. He could only protest or grieve the rejection. The sender of the returned mail was not given a chance to protest before the mail was returned.

D. Nighttime Recreation

The 9-Side unit is the unit in the Detention Center in which Plaintiff was required to take his recreation between midnight and 5:00 a.m.

Inmates are allowed one hour of recreation time daily, unless they request the time be ended early. Otherwise, inmates are in their cells at all other times, except time in the law library, court, and medical.

Inmates in disciplinary segregation have recreation time between midnight and 5:00 a.m. Inmates in administrative segregation receive recreation during day or evening hours.

On May 8, 2012, Plaintiff's recreation time began at 12:06 a.m. and lasted for 21 minutes. Plaintiff had a state court appearance later that morning at 10:00 a.m.

II. Summary Judgment Standard

Under Fed.R.Civ.P. 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(c)(1) further provides that the party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

"The court need consider only the cited materials, but it may consider other material in the record."[4] When ruling on a motion for summary judgment, a court must view the evidence and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion.[5]

The moving party bears "both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law."[6] To meet this burden, the moving party "need not negate the non-movant's claim, but need only point to an absence of evidence to support the non-movant's claim."[7] If the moving party satisfies its initial burden, the non-moving party "may not rest on its pleadings, but must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which it carries the burden of proof."[8] Summary judgment is not a "disfavored procedural shortcut, " but is an important procedure "designed to secure the just, speedy and inexpensive determination of every action.'"[9]

When the parties file cross motions for summary judgment, the court must analyze each motion individually and on its own merits.[10] But where the cross motions overlap, the court may address the legal arguments together.[11] The court is also "entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts."[12]

Plaintiff is proceeding pro se. The Court therefore reviews his pleadings, including those related to the present motions for summary judgment, "liberally and holds them to a less stringent standard than those drafted by attorneys."[13] The Court, however, cannot assume the role of advocate for the pro se litigant.[14] Likewise, Plaintiff's pro se status does not relieve him from an obligation to comply with procedural rules, including the Federal Rules of Civil Procedure.[15]

III. Qualified Immunity Standards

Qualified immunity shields government officials performing discretionary functions from liability for civil damages as long as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known."[16] The defense of qualified immunity is available only to an official sued in his or her ...


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