United States District Court, D. Kansas
DAMOND O. BLAKLEY, Plaintiff,
OSAGE COUNTY JAIL, FNU DUNN, JERRY LNU, And PHIL LNU, Defendants.
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE
matter comes before the court on pro se plaintiff Damond O.
Blakley's Motion for Judgment (Doc. 62), Motion to
Suppress (Doc. 73), “Motion to Show Admission of
Guilt” (Doc. 81), “Motion to Dismiss Osage County
Defendant Phillip Shepard's Memorandum in Support of His
Motion for Summary Judgment” (Doc. 86), “Motion
to Show Material Evidence for Discovery at Trial” (Doc.
88), and Motion for Summary Judgment (Doc. 89), and defendant
Officer Shepard's Motion for Summary Judgment (Doc. 70).
All parties have responded and replied to the pending motions
and, where they have not, the time to do so has passed. For
reasons explained below, the court denies plaintiff's
Motion to Suppress, grants Officer Shepard's Motion for
Summary Judgment, and denies plaintiff's remaining
motions as moot.
currently is detained in the Shawnee County, Kansas Jail.
Before the Shawnee County Jail, and at the times relevant to
his Complaint, plaintiff was detained in the Osage County,
names four defendants in his Complaint: (1) the Osage County
Jail, (2) Osage County Sheriff Laurie Dunn, (3) Osage County
Jail Supervisor Sergeant Gerald Nitcher, and (4) Osage County
Correctional Officer Philip Shepard. The court's
screening order dismissed plaintiff's claim against the
Osage County Jail. Doc. 6. The court later dismissed
plaintiff's claims against Sheriff Dunn and Sergeant
Nitcher. Docs. 47, 55. The only remaining claim is
plaintiff's Eighth Amendment claim against Officer
Shepard. Officer Shepard now moves for summary judgment.
Plaintiff's Motion to Suppress Martinez Report
(Doc. 73) and Officer Shepard's Motion
for Summary Judgment (Doc. 70)
purpose of Officer Shepard's Summary Judgment Motion, the
court takes the facts, where uncontroverted, from the
parties' briefs as well as the Martinez Report
filed a Motion to Suppress the Martinez Report
because, he contends, his “past criminal history has no
bearing toward this civil suit.” Doc. 73 at 1. Indeed,
plaintiff's remaining claim presents a civil claim,
alleging that Officer Shepard violated his Eighth Amendment
rights when he failed to get plaintiff medical treatment.
“When the plaintiff challenges a prison's policies
or established procedures and the Martinez
report's description of the policies or procedures
remains undisputed after plaintiff has an opportunity to
respond, [the court] should, and will, treat the portion of
the Martinez report describing the policies or
procedures like a written document that has been attached to
plaintiff's complaint.” Hall v. Bellmon,
935 F.2d 1106, 1112-13 (10th Cir. 1991). The
Martinez report aids the court in “its broad
reading of the pro se litigants pleadings . . . by
supplementing a plaintiff's often inadequate description
of the practices that he contends are
unconstitutional.” Id. at 1112. Plaintiff has
had an opportunity to respond to the Martinez
report. And, although he moved to suppress the report, he did
not dispute the description of the policies and procedures
contained in the report. So, the court denies plaintiff's
Motion to Suppress and considers the facts in the
Martinez report when making its decision. The court
turns to Officer Shepard's Motion for Summary Judgment
because, if granted, all of plaintiff's motions are moot.
arrived at the Osage County Jail on January 20, 2015. On
January 26, 2015, plaintiff submitted a Medical Request Form
for a “knot” “on [his] left side lower
back.” Doc. 77 at 13. Plaintiff visited Dr. Seeman on
February 11, 2015. During the visit, plaintiff requested to
be taken off all of his medications. Some of these
medications treated plaintiff's anxiety and depression.
Dr. Seeman agreed, and the Osage County Jail staff stopped
administering these medications to plaintiff.
February 12, 2015, plaintiff began to experience pain in his
chest and heart. Plaintiff sought help from Jailer Phil
(“Officer Shepard”) while Officer Shepard was on
his routine jail check. Officer Shepard separated plaintiff
from other inmates by moving him to the jail's holding
area for observation, so he could question him about his
symptoms. Officer Shepard asked plaintiff if he was
experiencing chest pain, and plaintiff said that he was not,
but that he did not feel right. Plaintiff described a
“fluttering” in his chest and stated that he
wanted to go to the hospital. Id. at 14. Officer
Shepard did not think that plaintiff was exhibiting any
symptoms of a serious medical condition. Officer Shepard
observed that plaintiff was breathing and speaking normally,
that plaintiff's skin color appeared to be normal, and
that plaintiff did not seem to be in any distress. Officer
Shepard also knew that plaintiff had stopped taking all of
his medications, including his anti-anxiety medications.
Officer Shepard told plaintiff that what he was feeling was
“only in his head, ” that “it was stress,
” and that he would be alright. Id. at 4.
Officer Shepard let plaintiff fill out a medical request form
when he returned to his cell. Doc. 68-1 at 16. According to
plaintiff, he was lightheaded the next day.
saw a physician on February 25, 2015. Plaintiff filed this
lawsuit three weeks later. Plaintiff's suit alleges that
Officer Shepard's failure to provide him with medical
care on February 12, 2015 amounted to a violation of his
Eighth Amendment rights. Plaintiff asserts that Officer
Shepard should have gotten help for him, and that his failure
to do so constituted mental and physical abuse. Plaintiff
contends that his pain was so great that he was lightheaded
for a day after Officer Shepard looked at him, and that
Officer Shepard disregarded “an excessive risk to [his]
health [and] safety.” Doc. 79 at 1.
Response, plaintiff contends that he has been suffering from
his heart problems for over a year. His symptoms include
feeling dizzy and weak. Plaintiff attached documents to his
Response, including “Progress Notes” from a visit
to the Cotton-O'Neil Heart Center where he saw Dr. Kevin
Bernd. The Progress Notes state that plaintiff visited Dr.
Bernd on March 4, 2016. The Progress Notes also state that
plaintiff reported to Dr. Bernd that he started to develop
heart palpitations in February 2015, and that they occurred
every three to four days. The Progress Notes describe
plaintiff's report that the palpitations usually resolve
on their own. The notes also reveal that another physician,
Dr. Seeman, tested plaintiff and found that he has been
experiencing episodes of supraventricular tachycardia (SVT).
judgment is appropriate if the moving party demonstrates that
“no genuine dispute [about] any material fact”
exists and that it “is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a). When applying this
standard, the court views the evidence and draws inferences
in the light most favorable to the non-moving party.
Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th
Cir. 2010). A disputed “issue of fact is
‘genuine' ‘if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party' on the issue.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). And an “issue of fact is ‘material'