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Kirkland v. Larios

United States District Court, D. Kansas

February 28, 2017

MARCEL LARIOS, et al., Defendants.



         Plaintiff Wayland Dee Kirkland, proceeding pro se, filed suit against Marcel Larios, Troy Wilson, Jordan Powell, Justin Wadkins, and Sarah Hollon, who are all Franklin County, Kansas Jail officials (collectively, “Franklin County Defendants”), as well as Melany McClure, Sergeant Matt Doe, John Does I, III-IV, and Denise Doe V. Plaintiff alleges claims of use of excessive force in violation of the Fourteenth Amendment[1] of the United States Constitution against Officers Larios, Powell, and Wilson. There is also a passing reference to assault under Kansas state law.[2] He further alleges deprivation of access to courts in violation of the Fourteenth Amendment against Administrator Wadkins and Corporal Hollon because he was not given writing materials while in solitary confinement. This matter is before the Court on the Franklin County Defendants' Motion for Summary Judgment (Doc. 34). Plaintiff has responded to summary judgment (Doc. 41). The motion is fully briefed, and the Court is prepared to rule. For the reasons stated below, the Court finds that the Franklin County Defendants are properly granted qualified immunity. Therefore, summary judgment is granted in their favor.

         I. Legal Standard

         A. Summary Judgment

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.[3] In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[4] “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.”[5] A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.”[6] An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.”[7]

         The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.[8] In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.[9]

         Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”[10] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[11] Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”[12] To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.”[13]

         Where, as here, the plaintiff proceeds pro se, the court must construe the plaintiff's filing liberally and afford the plaintiff's filing some leniency.[14] Additionally, “[c]ourts must take added precautions before ruling on a motion for summary judgment when a pro se litigant is involved . . . especially when enforcing these [technical] requirements might result in the loss of the opportunity to prosecute or defend a lawsuit on the merits.”[15] At the same time, it is not the proper function of a district court to assume the role of advocate for a pro se litigant, and pro se parties are expected to follow the Federal Rules of Civil Procedure, as all litigants must.[16]

         Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”[17]

         B. Qualified Immunity

         Defendants move for summary judgment on Plaintiff's excessive force and deprivation of access to courts claims in violation of the Fourteenth Amendment, on the basis that they are protected by qualified immunity and are thus entitled to judgment as a matter of law. Qualified immunity protects public officials performing discretionary functions unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.”[18] Qualified immunity leaves “ample room for mistaken judgments, ” protecting “all but the plainly incompetent or those who knowingly violate the law.”[19]

         As the Tenth Circuit explained in Rojas v. Anderson, “because qualified immunity is designed to protect public officials from spending inordinate time and money defending erroneous suits at trial, ” the qualified immunity defense triggers a modified summary judgment standard.[20] The initial burden rests on the plaintiff, rather than the defendant; and the plaintiff must first “clear two hurdles:” (1) demonstrate that the defendant violated his constitutional or statutory rights; and (2) demonstrate that the right was clearly established at the time of the alleged unlawful activity.[21] The court may decide the appropriate order to consider these issues.[22] Only if the plaintiff clears these hurdles does the burden shift back to the movant defendant to make the traditional showing that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law.[23]

         In determining whether the plaintiff has demonstrated a violation of his constitutional or statutory rights and that the right was clearly established at the time, the court must view the facts and draw reasonable inferences in the light most favorable to the party opposing summary judgment.[24] In Scott v. Harris, the Supreme Court held that “[T]his usually means adopting . . . the plaintiff's version of the facts, ” unless that version “is so utterly discredited by the record that no reasonable jury could have believed him.”[25] In Scott, the plaintiff's version of the facts was discredited by a videotape that completely contradicted plaintiff. Thus, although the court should generally accept the non-movant plaintiff's version of the facts and draw reasonable inferences in the light most favorable to the plaintiff, the Court need not accept alleged facts that are contradicted or discredited by the record. Moreover, citing to the Scott decision, the Tenth Circuit has held that “because at summary judgment we are beyond the pleading phase of the litigation, a plaintiff's version of the facts must find support in the record.”[26] In that sense, the court does not discard the Rule 56 process, but relies upon facts supported by the record, while viewing those facts and reasonable inferences therefrom, in the light most favorable to plaintiff.

         II. Uncontroverted Facts

         The Franklin County Defendants have filed a Martinez Report.[27] The Martinez Report is an administrative record, assembled by the prison, that documents the factual investigation of a detainee's claim.[28] Plaintiff failed to controvert any of the facts in the Martinez Report submitted by the Franklin County Defendants. Plaintiff submitted a number of additional facts, but most were not material to the dispute herein, conclusory statements, or unsupported by evidence in the record.[29] Thus, the Court disregards those additional facts. The Court does not accept factual allegations that are utterly discredited by the record such that no reasonable jury could believe them. Finally, the Court views these uncontroverted facts in the light most favorable to Plaintiff and draws all reasonable inferences in the light most favorable to Plaintiff. The following facts are uncontroverted.

         Plaintiff was arrested for arson on or about August 9, 2015, at which point he was booked into the Franklin County jail. At all times relevant to the Amended Complaint, Plaintiff was a pretrial detainee in the Franklin County jail while awaiting trial on a felony arson charge.[30] At all times relevant to the Amended Complaint, the Franklin County Defendants were officers and/or administrators at the Franklin County jail. While in detention in the Franklin County jail, Plaintiff was generally represented by counsel.[31] Plaintiff was briefly and intermittently unrepresented following the withdrawals of several of his attorneys.

         Plaintiff was housed in solitary confinement, Cell 120, for extended periods during his detention. Plaintiff was assigned to solitary confinement pursuant to his own request. Plaintiff demanded a solitary cell because he told Franklin County jail officers that he was afraid to interact with the general population and thought people were out to get him. Specifically, he believed that his “ex-wife's drug dealers” were going to have him killed. Jail staff who interacted with Plaintiff found him to be paranoid and volatile. From the perspective of jail staff, Plaintiff's volatile and paranoid personality made him an unpredictable detainee.

         The Franklin County jail's general population areas contain kiosks that permit detainees in the jail to arrange and/or conduct visits, make communication requests, access email, check their accounts, and submit grievances. The kiosks are also the sole system by which detainees submit commissary orders. Detainees with access to a kiosk can place commissary orders by using an electronic kiosk before the cut-off time on Wednesdays. Commissary orders are delivered one per week. Unlike general population housing, solitary cells do not have access to the aforementioned kiosks. Thus, Plaintiff, while in solitary confinement in Cell 120, could not access these kiosks to place commissary orders for writing supplies.

         Nonetheless, jail staff assisted Plaintiff in obtaining writing supplies needed for communication with courts or attorneys. Specifically, Administrative Corporal Hollon provided paper and pens to Plaintiff on multiple occasions and assisted him with buying two phone cards. Officer John Niccum supplied copy paper to Plaintiff on two occasions. Officer Matt Zweifel and Corporal Hollon hand delivered papers for Plaintiff to his attorney and the judge at the Franklin County Courthouse on multiple occasions. Officer Zweifel and Corporal Hollon delivered documents to the Franklin County Courthouse in this manner so that Plaintiff would not need to use stamps.

         Plaintiff qualified as indigent and received writing supplies, along with other items, in a weekly “indigence kit.” Plaintiff was also allowed to receive lined paper from his attorney if he preferred it. While Plaintiff was represented by defense attorney Jack Hobbs, Administrator Wadkins discussed with Counsel Hobbs Plaintiff's indigence kit, including the writing supplies, and Counsel Hobbs indicated these supplies were satisfactory.

         On August 26, 2015, Plaintiff was in a solitary confinement room, Cell 120, which is located near the booking area of the jail. Cell 120 is also near an interview room, an elevator, a staff bathroom, the control room, the door to the sally port (where detainees are brought into the jail), and the elevator. On August 26, Plaintiff positioned himself at the door of his cell and began screaming obscene and abusive language. Officer Larios, Officer Wilson, Officer Zweifel, and Officer Nick Grey heard Plaintiff yelling and became concerned.

         Plaintiff's yelling carried throughout the area. When detainees yell in a manner similar to Plaintiff, this creates concerns for the Franklin County jail staff because of the potential for further disruption by other detainees and for the resulting safety and security concerns that such a disruption could create. Officers know that when a detainee begins screaming, as Plaintiff was doing, he may soon become violent and attempt to injure himself. In addition, during this particular event, there was concern because a member of the Ottawa Police Department was using the nearby interview room to conduct and record an interview with another detainee. Franklin County jail officers were concerned Plaintiff's screaming would disrupt the interview or ruin the recording.

         In light of the concerns described above, Officer Grey and Officer Larios approached Plaintiff's room, and Officer Grey attempted to speak with Plaintiff through the door in an attempt to calm him. Officer Grey asked Plaintiff to stop yelling and told Plaintiff he would be moved to a “detox room” if he did not cease. A detox room was suggested because it is a padded space whereas the other cells, including Cell 120, are not. A detox room is provided as a safe place for detainees to de-escalate when needed.

         When Plaintiff did not stop screaming, Officer Grey and Officer Larios then entered Plaintiff's room and began to speak with him. Once inside, Plaintiff lowered his volume somewhat but continued to use obscene and abusive language toward the officers. For example, at this point, Plaintiff was calling Officer Grey “bitch” and yelling “what's your fucking name?” Officer Grey gave Plaintiff a final instruction to cease cursing, but Plaintiff continued to curse.

         After refusing to comply with requests, Officer Grey and Officer Larios placed their hands on Plaintiff's arms to stand him up and move him to the detox room. In response to Officer Grey and Officer Larios touching him, Plaintiff tensed his upper body. Based on Officer Grey and Officer Larios' experience, tensing of the body, such as they observed from Plaintiff, meant he was preparing to fight, flee, and/or cause the officers to lose their grip on his arm. Officer Grey and Officer Larios were concerned Plaintiff's behavior created a serious safety issue. If Plaintiff either fought or fled, he presented possibly significant risks to the health and safety of the officers, himself, and any other individuals in the areas to which he might flee. Specifically, if Plaintiff had succeeded in shaking off the officers and fleeing, he would have had access to a number of rooms, hallways, and closets. Several of these rooms were unlocked, including the room in which a member of the Ottawa Police Department was interviewing an uninvolved party.

         After Plaintiff tensed his body, Officer Grey and Officer Larios began to move Plaintiff toward the floor in an attempt to place Plaintiff in handcuffs. During this move, Officer Larios held Plaintiff's head under his chin with some help from Officer Wilson. Based on Officer Grey and Officer Lario's experience, they were taught that it is common for agitated detainees to spit or bite others or themselves, and/or to repeatedly bang their own heads against the floor. Thus, because of these behaviors, monitoring or holding a detainee's head can be an important safety measure for jail staff to take to protect themselves and detainees from harmful behavior. Plaintiff used his chin to pin and hold Officer Larios' arm in position around his head.

         Officers Niccum, Wilson, and Zweifel entered the cell to assist Officers Grey and Larios. When a detainee requires handcuffing or transfer, it is Franklin County jail practice and protocol that all available officers assist in order to decrease safety risks. These safety risks for moving detainees include, but are not limit to, the risk of biting, spitting, kicking, punching, headbutting, and object throwing.

         Once the other officers entered the room, Plaintiff continued to resist and refused to provide his right arm for handcuffing. The Ottawa police officer who had been conducting the interview in the nearby room also entered Plaintiff's room and pulled out his Taser. Officer Zweifel instructed Plaintiff to provide his arm and warned him of the Taser. Plaintiff complied and surrendered his right arm. The Taser was never deployed. As soon as Plaintiff supplied his arm, the officers applied handcuffs and immediately drew Plaintiff to his feet. From the time that Plaintiff was moved to the floor to the time that he was returned to his feet, fewer than sixty seconds elapsed.[32]

         Once on his feet, officers escorted Plaintiff to the detox room. In the detox room, the officers placed Plaintiff on his stomach, asked him to remain still, and immediately removed the handcuffs.[33] Officers then left the detox room. After several minutes, Officer Grey entered the detox room and engaged Plaintiff in conversation. Officer Grey asked Plaintiff if he was alright to which Plaintiff replied he was. Officer Grey explained that Plaintiff had been placed on the floor and handcuffed because Plaintiff had become physically resistant.

         While Plaintiff remained in the detox room, he received a meal and engaged in additional calm conversation through the door. After a few hours, Plaintiff was asked if he would like to leave the detox room. Plaintiff was taken directly to the nurse's office where he was examined. The Franklin County jail policy and protocol is to take detainees to see a nurse if possible and practical-assuming one is on-duty and available-after any incident involving the application of physical contact between an officer and a detainee. The nurse is given exclusive discretion as to whether a detainee should receive further medical attention.

         The nurse on duty on August 26, 2015 examined Plaintiff, including his eye and elbow, and noted that he had a small scab and mild swelling under his right eye. He did not appear to have other injuries. The nurse informed Plaintiff that he had no injuries requiring further medical attention. The nurse only suggested ice for Plaintiff's sore elbow and eye.

         Officer Jordan Powell, who Plaintiff has named and served in relation to his excessive-force allegations, was not working or on site at the jail on August 26, 2015. Administrator Wadkins did not personally participate in the aforementioned physical encounter with Plaintiff, but reviewed videotape of it. After reviewing the video, Administrator Wadkins evaluated staff performance and determined that no policy violations occurred. None of the officers involved required discipline for any violation of policy.

         The Office of the Franklin County Attorney received a complaint from Plaintiff concerning the aforementioned physical encounter, alleging criminal action on the part of the officers involved. The County Attorney's office reviewed the incident and evidence, including the video. The County Attorney's office did not find sufficient evidence to warrant further investigation or the filing of any charges.[34]

         Plaintiff remained in custody until he made bond on October 2, 2015. He continues to ...

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