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Kobel v. Dunkle

United States District Court, D. Kansas

January 25, 2018

SCOTT HARRIS KOBEL, Plaintiff,
v.
DON DUNKLE, et al., Defendants.

          MEMORANDUM & ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE

         This matter comes before the court upon defendants Don Dunkle, McGovern (first name unknown), Douglas County Sheriff's Office, and Douglas County Jail's Motion for Summary Judgment (Doc. 30). Also before the court is plaintiff's renewed Motion to Appoint Counsel (Doc. 42).

         I. Background

         Plaintiff Scott Harris Kobel filed a complaint on November 14, 2016. (Doc. 1.) Plaintiff used the form Civil Rights Complaint for claims brought pursuant to 42 U.S.C. § 1983. The factual allegations plaintiff details in his complaint align closest to an Eighth Amendment claim. Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014) (explaining that excessive force claims involving convicted prisoners arise under the Eighth Amendment; Fourth Amendment excessive force claims apply to facts leading up to and including arrest; Fifth or Fourteenth Amendment excessive force claims address instances that fall “somewhere between the two stools of an initial seizure and post-conviction punishment.”).

         Plaintiff claims that his right to be free from excessive force was violated when defendant Dunkle allegedly attacked plaintiff while he was incarcerated in “approximately June/July 2016.” (Doc. 1, at 3-4.) Plaintiff mentions his Fourth and Fifth Amendment rights but provides no argument supporting those allegations. The court will therefore treat plaintiff's complaint as one alleging Eighth Amendment violations.

         Plaintiff claims defendant Dunkle attacked him, striking him in the back of the head multiple times while plaintiff was in the infirmary. (Id. at 7.) Plaintiff claims he filed multiple complaints with the prison seeking relief and states that he has exhausted the disciplinary appeal process. (Id. at 12.)

         Plaintiff seeks relief in the form of a court-issued warrant for defendant Dunkle's arrest (id. at 5-6) and an injunction prohibiting Douglas County Sheriff's Office from employing defendant Dunkle in the future (id. at 6). Plaintiff also seeks in excess of $750, 000 in compensatory and $750, 000 in punitive damages. (Id.)

         II. Legal Standards

         A. Pro Se Litigants

         Where a plaintiff proceeds pro se, the court construes his filings liberally and holds them to less stringent standards than pleadings filed by lawyers. Barnett v. Corr. Corp of Am., 441 F. App'x 600, 601 (10th Cir. 2011). Pro se plaintiffs are nevertheless required to follow the Federal and Local Rules of practice and the court does not assume the role of advocating for plaintiff. United States v. Porath, 553 F. App'x 802, 803 (10th Cir. 2014).

         B. Summary Judgment

         Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         The party moving for summary judgment has the burden to show “the lack of a genuine issue of material fact.” Ascend Media Prof'l Servs., LLC v. Eaton Hall Corp., 531 F.Supp.2d 1288, 1295 (D. Kan. 2008) (citing Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986))). Once the moving party meets this initial burden, the burden then shifts to the nonmovant to “set forth specific facts showing that there is a genuine issue for trial.” Id. (citing Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986))).

         The nonmovant may not rest on his pleadings or “rely on ignorance of the facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 259 (1986)); Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Instead, the nonmovant is required to set forth specific facts, by referencing affidavits, deposition transcripts, or exhibits, from which a rational trier of fact could find for him. Fed R. Civ. P. 56(c)(1); see also Ascend Media, 531 F.Supp.2d at 1295 (citing Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000)). Summary judgment is not a “disfavored procedural shortcut” -it is an “integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action.” Celotex Corp., 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).

         C. Summary Judgment Briefing Procedure

         As required by the local rules, defendants set forth a statement of uncontroverted facts, each separately numbered and referring with particularity to those portions of the record upon which each statement relies. D. Kan. Rule 56.1(a). The rules provide that all facts set forth in such a statement are deemed admitted for the purposes of summary judgment unless specifically controverted by the statement of the opposing party. The responding party must also “refer with particularity to those portions of the record upon which the opposing party relies.” D. Kan. Rule 56.1(b)(1). The Rules further provide that if the nonmoving party “relies on any facts not contained in the movant's memorandum, that party must set forth each additional fact in a separately numbered paragraph, supported by references to the record.” Rule 56.1(b)(2). “All facts on which a motion or opposition is based must be presented by affidavit, declaration under penalty of perjury, and/or relevant portions of pleadings, depositions, answers to interrogatories, and responses to requests for admissions.” Rule 56.1(d). Plaintiff, as a pro se party, was provided a full copy of these rules as required by 56.1(f). (Doc. 32.)

         Plaintiff generally does not controvert defendants' statements in numbered paragraphs. Because he did not, those allegations are deemed admitted for purposes of summary judgment. “[I]t is the responding party's burden to ensure that the factual dispute is portrayed with particularity, without . . . depending on the trial court to conduct its own search of the record.” Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004).

         III. ...


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