United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
plaintiff Damon Horton brought this action against Ed
Maddern, a corrections officer at El Dorado Correctional
Facility. In his Complaint, plaintiff asserts that
defendant violated his Eighth Amendment rights by using
excessive force against him and battered him in violation of
Kansas Administrative Regulation 44-12-324.
February 22, 2017, defendant filed a Motion to Dismiss,
asking the court to dismiss plaintiff's constitutional
claim. Doc. 15. Plaintiff did not respond to this Motion, and
the time for doing so has passed. See D. Kan. R.
6.1(d)(2). So, consistent with D. Kan. Rule 7.4(b), the court
“will consider and decide the motion as an uncontested
motion.” In these circumstances, the court ordinarily
“will grant the motion without further notice.”
D. Kan. Rule 7.4(b). Although the court could grant
defendant's motion to dismiss under Rule 7.4(b) without
further discussion, it also rules on the motion based on its
merits. E.g., Gee v. Towers, No. 16-2407,
2016 WL 4733854, at *1 (D. Kan. Sept. 12, 2016) (dismissing
complaint under Rule 7.4(b), but also considering motion to
dismiss on its merits).
defendant's Motion to Dismiss raises questions under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), the
facts alleged in plaintiff's Complaint control. See
S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014);
Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.
5:00 am on April 18, 2016, plaintiff's cellmate attacked
him. Defendant and another correction's officer-Officer
Wood-responded to the commotion. At first, defendant and
Officer Wood tried to use “chemical agents” to
break up the fight, but failed-the cell door was closed. Doc.
1 at 2. So defendant radioed the control booth and had the
cell door opened. Plaintiff's cellmate promptly shoved
him out of the cell into the hallway, placing plaintiff in
between defendant and Officer Wood. The fight continued.
Plaintiff and his cellmate found their way back into the cell
where they continued to brawl. Defendant then intervened,
“bludgeon[ing]” plaintiff “from
behind” with his radio. Id. at 3. Plaintiff
lost consciousness for four to seven seconds, and awoke to
find his head bleeding in the spot where defendant had struck
him. All the while plaintiff's cellmate had not stopped
striking him. Indeed, plaintiff's cellmate did not stop
striking him until defendant and Officer Wood tried chemical
agents a second time. This time they worked. The fight ended
and both plaintiff and his cellmate were handcuffed and
escorted to another room.
they arrived in this other room, plaintiff lost consciousness
again. This time, someone placed plaintiff on a stretcher and
took him to the “Trauma Unit.” Id. at 3.
While in the Trauma Unit, a nurse examined plaintiff and took
pictures of his wounds. Plaintiff contends that the nurse did
not examine him properly, and so sent him to segregation
without having been “properly assessed by medical
staff.” Id. at 4. Plaintiff used a prison
hotline to report this failure and was given proper medical
attention an hour later.
plaintiff received the proper medical attention, he was
“confined to [his] bed for months due to the injury
from [defendant's] radio.” Id. Besides bed
rest, plaintiff has sought medical help at least nine times
for the continuing effects of his injury, which include
“severe migraines and constant ringing in [his]
ears.” Id. He also complains that his
pre-existing mental health issues have worsened.
contends that Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) require dismissal of plaintiff's claims.
Defendant invokes Rule 12(b)(1) because, he contends, the
court lacks subject matter jurisdiction to hear
plaintiff's claims against him in his official capacity
(“official-capacity claims”). Defendant invokes
Rule 12(b)(6), asserting that the Complaint fails to state a
§ 1983 claim against him in his individual capacity
(“individual-capacity claims”). The court
considers each of defendant's arguments below.
Subject Matter Jurisdiction: Official Capacity
Rule 12(b)(1) Motion to Dismiss Standard
court must dismiss any case that it lacks subject matter
jurisdiction to hear. Fed.R.Civ.P. 12(h)(3). The court must
do so because “[a] court lacking jurisdiction cannot
render judgment.” Basso v. Utah Power & Light
Co., 495 F.2d 906, 909 (10th Cir. 1974) (citing
Bradbury v. Dennis, 310 F.2d 73, 74 (10th Cir.
1962)). The party who invokes the court's jurisdiction
bears the burden to establish that jurisdiction in fact
exists. Id. Here, that party is plaintiff.
defendant attacks the Complaint's allegations of subject
matter jurisdiction, the court “must accept the
allegations in the complaint as true.” Holt,
46 F.3d at 1002 (citing Ohio Nat'l Life Ins. Co. v.
United States, 922 F.2d 320, 325 (6th Cir. 1990)).