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Nunez v. Heimgartner

United States District Court, D. Kansas

May 24, 2017

EDDIE NUNEZ, Plaintiffs,
v.
JAMES HEIMGARTNER, et al., Defendants.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         Plaintiff Eddie Nunez is an inmate in the custody of the Kansas Department of Corrections (“KDOC”). In January 2015, he battered a female corrections officer at the Hutchinson Correctional Facility (“HCF”). Following that incident, Nunez was seized, placed in a holding cell, and later transferred to the El Dorado Correctional Facility (“EDCF”) where he was placed on restricted status. Nunez claims that during that course of events, several of his constitutional rights were violated. Accordingly, he brings this action under 42 U.S.C. § 1983 against several KDOC employees. Six of those defendants now move for summary judgment, arguing that the Eleventh Amendment bars Nunez's action against them in their official capacities (Doc. 55). They also contend that Nunez is barred from bringing this action against them in their individual capacities because he failed to exhaust his administrative remedies before filing his Complaint. Another defendant, Nurse Deanna Morris, also seeks summary judgment on Nunez's claim against her (Doc. 59). She claims that the undisputed facts show that she did not violate any of Nunez's constitutional rights.

         For the reasons stated below, the Court agrees that Nunez cannot move forward in this case against state officials in their official capacities. However, in light of facts sworn to by Nunez in his Complaint, factual disputes preclude summary judgment on the Defendants' other claims.

         I. Factual and Procedural Background

         Eddie Nunez is an inmate in the custody of KDOC. Nunez, acting pro se, brings this action under 42 U.S.C. § 1983 alleging violations of his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments. These violations all stem from Nunez's battery of a female corrections officer in January 2015, and his subsequent transfer from HCF to EDCF.[1] According to Nunez, he was subjected to excessive force and was mistreated in various ways following the battery.

         In his Complaint, Nunez names 14 defendants. Of those defendants, 13 are KDOC employees at either HCF or EDCF; the other is Corizon Health Services. The following defendants now seek summary judgment on procedural grounds: James Heimgartner, the Warden at EDCF; Tammy Martin-Mosley, a Unit Team Manager (“UTM”) at EDCF; Kevin Vick, a UTM at EDCF; William Widener, a corrections officer at HCF; Roland Potter, a corrections officer at HCF; and Allison Plett, a corrections officer at HCF (collectively “the Defendants”). Additionally, another defendant, EDCF Nurse Deanna Morris, seeks summary judgment on the merits.

         After Nunez filed this action, the Court screened the case, pursuant to 28 U.S.C. § 1915A. Judge Crow's screening order, dated May 16, 2016, laid out Nunez's allegations as follows:

Plaintiff alleges that on January 13, 2015 at approximately 9:21 p.m., he was suspected of assaulting a female correctional officer at HCF. He claims that, acting upon these suspicions, defendants Shmucker, Lansaw and [Widener] rushed at him, handcuffed him, and applied excessive force against plaintiff, although plaintiff offered no resistance. Plaintiff claims that his head was bashed to the floor, his arms were violently jerked back, and he was purposefully rammed into a metal pole and a metal door.
Plaintiff was placed in a holding cell. Plaintiff states that he was dizzy and extremely nauseous and told defendant Plett that he needed to see the nurse. Plaintiff was in the holding cell for about an hour and then he was escorted to a “box car slam cell, ” where he spent the night. This cell had no bedding and no toilet paper. There was a mattress. Plaintiff was only permitted a pair of boxer shorts and a t-shirt. There were no blankets, although the cell was freezing cold. Plaintiff states that he threw up twice because of dizziness and never received medical attention. Plaintiff asserts that shift captain Potter, who “authorized, supervised, and instructed his subordinates to execute his orders, ” and defendant Plett, who “knowingly, willfully, and with malicious intent to retaliate denied my right to possess toilet paper . . . clean bedding and blankets . . . [and] right to clothing . . . heating . . . and right to receive medical treatment, ” are responsible for these alleged violations.
Early on the morning of January 14, 2015, plaintiff was transported in a van to EDCF. Before the trip, plaintiff's tennis shoes were confiscated and thrown away. He was allowed to wear only boxers and a t-shirt. He was also placed in a shock vest and threatened that he would get severely shocked with 50, 000 volts if he gave the officers any excuse. The van was very cold. Plaintiff alleges that he was terrified to complain about the cold, even though he was shivering uncontrollably. Plaintiff alleges that there was a driver and a passenger in the van and that the driver ignored plaintiff's request to turn up the heat in the van and threatened to shock plaintiff.
Plaintiff alleges that when he arrived at EDCF, his clothes were taken and he was placed totally naked in a holding cell. One of the correctional officers involved was defendant Leonard Maddox. Plaintiff was in the holding cell for one hour and then moved to a limited contact cell. Plaintiff received a pair of boxer shorts, a t-shirt and crocs before being moved. He was shackled tightly around his ankles. Plaintiff alleges that defendant Maddox and defendant Vick were involved in moving plaintiff. While this was happening, plaintiff claims that defendant Maddox pulled plaintiff's thumb backwards as hard as he could, causing plaintiff extreme pain. Plaintiff also claims that the shackles cut into his ankles so that plaintiff bled. No medical attention was offered. Plaintiff arrived at the limited contact cell at 8:30 a.m. Plaintiff was left with a pair of boxers only. No t-shirt or shoes. There was no mattress or bedding in the cell. The cell was extremely cold and drafty. Plaintiff alleges that he could see his breath. The officers removed toothpaste and toilet paper that were used to fill cracks in the door to stop the draft. Defendant Maddox and defendant Vick were involved in placing plaintiff in the limited contact cell. Defendant Martin issued the orders which limited the property plaintiff had in the cell.
Plaintiff allegedly suffered in these conditions until about 3:30 p.m. when he received a mattress, a set of clothing, bedding and one blanket, legal work, and reading and writing materials, but no shoes. Plaintiff alleges that he was enduring bronchitis during this time and had coughing fits.
Plaintiff states that he received ibuprofen and antibiotic ointment for his injuries. He claims that he filed a grievance regarding excessive force, but that defendant Martin-Mosley lied in response to it. Plaintiff alleges generally that defendant Martin-Mosley denied plaintiff's due process rights by failing to follow Kansas Department of Corrections policies and protocol.
Plaintiff further asserts that he was going through severe drug withdrawal on January 15, 2015, but that defendant Morris told him there was nothing she could do about it. She did not take plaintiff's vitals to assess his condition. Plaintiff claims that he later resubmitted two additional sick call requests about his drug withdrawal symptoms, but was denied treatment by defendants Morris, Corizon and Martin-Mosley. He asserts that defendant Martin-Mosley offered to provide plaintiff with treatment if he made a statement about the assault incident at HCF. Plaintiff refused, however.
Plaintiff states that on January 15, 2015, defendant Martin-Mosley revoked plaintiff's access to any legal work, books, magazines and writing materials. Plaintiff claims this violated regulations. Plaintiff states that the restrictions were adjusted on January 27, 2015 and plaintiff was allowed more blankets, shoes, legal work, books, magazines, writing material and money to spend for stamps. The next day, however, plaintiff was restricted from using cellhouse showers and razors to shave. He was also barred from out of cell exercise from January 14, 2015 until February 25, 2015. Plaintiff claims that defendant Martin-Mosley has abused her discretion and violated plaintiff's due process and equal protection rights in enforcing these restrictions.
Plaintiff asserts that he did not receive a hearing before being placed in administrative segregation and that he did not receive reviews after he was placed in administrative segregation, contrary to regulations. Plaintiff claims this violated his due process rights.
Finally, plaintiff contends that defendant Heimgartner is legally liable because he was the warden for EDCF and in charge of training and supervision. Plaintiff asserts that there has been a record of deliberate indifference to excessive force violations, a failure to discipline and sanction subordinates for excessive force, and a practice of condoning such behavior. Plaintiff alleges that defendant Heimgartner has ignored plaintiff's grievances and been deliberately indifferent to plaintiff's excessive force claims.

         Based on this alleged conduct, Nunez asserts 10 claims in his Complaint. Count I alleges excessive force relating to the corrections' officers response to Nunez's battery of the female corrections officer. Count II alleges cruel and unusual punishment arising from the deprivation of adequate clothing, bedding, heating, and the denial of care while he was held in the “box car slam cell.” Count III alleges cruel and unusual punishment arising from the threats of excessive force and deprivation of property and clothing during transport from HCF to EDCF on the morning of January 14. Count IV alleges excessive force as well as cruel and unusual punishment arising from his treatment upon arrival at EDCF. Count V alleges cruel and unusual punishment arising from deprivation of shelter and clothing in deliberate indifference to his health upon arrival at EDCF. Count VI alleges that Martin-Mosley committed perjury and violated protocol in violation of the Fourteenth Amendment. Count VII alleges that Morris violated Nunez's Eighth, Fourteenth, and Fifth Amendment rights by denying him treatment for his drug withdrawals. Count VIII alleges that Martin-Mosley violated Nunez's Fourteenth Amendment rights by depriving him of access to legal work, reading materials, and other items that other inmates were allowed to access. Count IX alleges a violation of due process rights because he was placed in administrative segregation without a hearing, and that decision has not been reviewed. Finally, Count X sets forth a failure to train claim against Heimgartner.

         Following the battery of the corrections officer-which occurred on January 14, 2015- Nunez completed several forms related to his alleged grievances. On January 23, Nunez completed a Form 9, which is part of the informal resolution process between an inmate and a UTM. He received an undated response to his Form 9 grievance. On February 4, Nunez completed a formal inmate grievance form, alleging excessive force, cruel and unusual punishment, and cold conditions at EDCF and HCF. On February 19, Nunez wrote a letter airing these grievances to Heimgartner, noting that he had not heard back from his UTM, and that his attempts to resolve the matter were being ignored. And on March 10, Nunez mailed a grievance appeal to KDOC. In that appeal, Nunez stated that both Martin-Mosley and Heimgartner had failed to respond to his attempts to file a formal grievance at EDCF. He also attached the February 4 grievance form and the February 19 letter to the warden to his appeal. Nonetheless, KDOC responded, informing Nunez he had failed to provide evidence that he complied with the formal grievance policy prior to his appeal.

         The Defendants assert that while Nunez may have completed the above forms, he did not properly submit them. An appealable grievance is assigned a serial number, but the March 10 document that Nunez sent to KDOC was unnumbered. Trudi Temple, the custodian of inmate grievance records at EDCF, maintains that from January through November of 2015, there is no record of any formal or informal grievances submitted by Nunez regarding the allegations surrounding the January 2015 incident. The Martinez report, filed in this case on November 23, 2016, similarly reports that KDOC received Nunez's March 10 grievance appeal, but that “it appears [Nunez] never exhausted his administrative remedy or proceeded further with the grievance.”

         Although the above evidence suggests that Nunez failed to submit any complaints prior to his March 10 appeal, it appears that his February 4 grievance form did reach Martin-Mosley, because she responded to it on April 3. In that response, she disagreed with Nunez's allegations of mistreatment. It does not appear that Nunez appealed Martin-Mosley's determination to Heimgartner.[2]

         On November 16, 2015, Nunez filed this § 1983 action seeking money damages. In his screening order, Judge Crow dismissed the entirety of Counts IV and IX, as well as the loss of property claim contained in Count III. Judge Crow also dismissed two parties-Sam Kline and Corizon Health Services-as defendants. Furthermore, Judge Crow ordered that the appropriate officials of HCF, EDCF, and KDOC prepare and file a Martinez report relating to Nunez's allegations. Finally, Judge Crow denied without prejudice Nunez's motion for the appointment of counsel.

         Now before the Court are two motions for summary judgment. Defendants Heimgartner, Martin-Mosely, Plett, Potter, Vick, and Widener argue that Nunez's suit against them in their official capacities is barred by the Eleventh Amendment doctrine of sovereign immunity. Further, they argue that they are entitled to judgment because Nunez failed to exhaust his administrative remedies (Doc. 55). Defendant Deanna Morris also seeks summary judgment (Doc. 59), but her motion focuses on the merits. She contends that the facts show that she was not deliberately indifferent to Nunez's medical needs. Nunez has failed to timely respond to either motion, and they are both ripe for the Court's determination.

         II. Legal Standard

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.[3]A fact is “material” when it is essential to the claim, and issues of fact are “genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's favor.[4] The movant bears the initial burden of proof and must show the lack of evidence on an essential element of the claim.[5] If the movant carries this initial burden, the nonmovant that bears the burden of persuasion at trial may not simply rest on its pleading but must instead “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.[6] These facts must be clearly identified through affidavits, deposition transcripts, or incorporated exhibits-conclusory allegations alone cannot survive a motion for summary judgment.[7] The Court views all evidence and reasonable inferences in the light most favorable to the party opposing summary judgment.[8]

         Nunez is proceeding pro se. The Court therefore reviews his pleadings, including those related to Defendants' motion, “liberally and holds them to a less stringent standard than those drafted by attorneys.”[9] The Court, however, cannot assume the role of advocate for the pro se litigant.[10] Likewise, Nunez's pro se status does not relieve him from the obligation to comply with procedural rules, including the Federal Rules of Civil Procedure.[11]

         III. Analysis

         A. Official Capacity Claims

         Defendants Heimgartner, Martin-Mosley, Plett, Potter, Vick, and Widener are all employed by the state. Specifically, they are all employed by KDOC at either EDCF or HCF. “When a suit alleges a claim against a state official in his official capacity, ‘the real party in interest in the case is the state, and the state may raise the defense of sovereign immunity under the Eleventh Amendment.' ”[12] Here, Nunez's only requested relief is for monetary damages. And “[i]t is well-settled that a request for money damages against a state defendant in his official capacity is generally barred by the Eleventh Amendment.”[13] While the defense of sovereign immunity may be waived, Kansas has not done so with regard to § 1983 prisoner claims in federal courts.[14] Accordingly, sovereign immunity bars Nunez's claims against state officials in their official capacities.

         Although only Heimgartner, Martin-Mosley, Plett, Potter, Vick, and Widener moved for summary judgment on these grounds, sovereign immunity partakes the nature of a jurisdictional bar.[15] And so the Court may, in its discretion, raise the issue of Eleventh Amendment immunity sua sponte.[16] Because the issue of sovereign immunity has been effectively raised by these six defendants, the Court will apply its reasoning to the remaining defendants in this case.[17] Nunez is barred from bringing this action against any defendants in their official capacity.

         B. Failure to Exhaust Administrative Remedies

         The Prison Litigation Reform Act (“PLRA”) requires inmates to exhaust “such administrative remedies as are available” before initiating suit over prison conditions.[18] “[A]n inmate may only exhaust by properly following all of the steps laid out in the prison system's grievance procedure.”[19] On its face, Nunez's Complaint seeks relief under § 1983. But liberally construing Nunez's filings, some of his alleged facts could also support a personal injury claim. The KDOC provides separate procedures for § 1983 and personal injury claims.[20] “This means that an inmate who wishes to pursue both a personal injury claim and a § 1983 claim must comply with two distinct sets of administrative procedures even if he bases his claims on a single act.”[21] And so the Court will look at the administrative steps for each claim to determine whether Nunez properly exhausted his administrative remedies before filing the Complaint in this case.

         1. Nunez's § 1983 Claim

         Article 15 of the KDOC regulations covers the administrative procedures that must precede a § 1983 claim.[22] An inmate must first seek an informal resolution with personnel that he works with on a daily basis.[23] If the attempt at an informal resolution fails, the inmate may resort to the three-step formal grievance system.[24] At level one, the inmate must submit a grievance report form to the appropriate UTM.[25] At level two, the inmate submits the grievance report form the warden of the facility-in this case, Heimgartner.[26] And if the matter is still unresolved, at level three the inmate may appeal the grievance to KDOC.[27] “At each stage, all grievances shall be answered in as short a time as possible to insure that delay will not impose additional hardship upon the inmate or unnecessarily prolong a misunderstanding.”[28] Grievances must be filed within 15 days from the date of the event of the event giving rise of the grievance, excluding Saturdays, Sundays, and holidays.[29] Also, under Article 15 an “inmate may move to the next stage of the grievance procedure if a timely response is not received at any step in the grievance process.”[30]

         The record shows that Nunez attempted to informally resolve his grievance by submitting a Form 9. But the Defendants argue that Nunez failed to follow the formal grievance steps set forth in Article 15, and thus, failed to exhaust his administrative remedies before filing his Complaint. They assert that “[t]here is simply no record at EDCF that the plaintiff ever submitted either the February 4, 2015, formal grievance form . . . or the letter to Warden Heimgartner, dated February 19, 2015.” The Defendants cite the custodian of records at EDCF, who maintains that the forms were never officially filed. But the Court is not convinced that the record is so clear.[31]

         The Defendants assert that Nunez never submitted the February 4 grievance form. Yet on April 3, Martin-Mosley responded to that very document. How could Martin-Mosley have responded to a grievance that was never submitted? Viewing the facts in the light most favorable to Nunez, this apparent contradiction casts doubt onto the Defendants' unqualified claim that Nunez never filed a formal grievance before he filed his Complaint. Along with this incongruity, ...


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