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Counce v. Wolting

United States District Court, D. Kansas

March 2, 2018

RYAN M. WOLTING, et al., Defendants.



         Plaintiff Kenneth Counce brings this pro se civil rights action under 42 U.S.C. § 1983 asserting claims of excessive force and deliberate indifference to his medical needs. Defendants Ryan Wolting and Gregory Arnold of the Kansas Highway Patrol (“KHP”) and Ellsworth County defendants David Chamberlain and Tracy L. Ploutz assert that they are entitled to qualified immunity and move for summary judgment (Dkts. 158 and 188). For the reasons stated below, the court grants defendants' motions for summary judgment.

         I. Uncontroverted Facts

         There are several controverted facts, however, the court finds the following facts to be uncontroverted for purposes of summary judgment. To the extent that relevant facts are controverted, the court resolves these in favor of plaintiff-the nonmoving party.

         On October 22, 2013, KHP Trooper Wolting drove up beside a maroon van heading west on I-70. The driver, later identified as Counce, turned off at Exit 221. Wolting followed and subsequently pulled over Counce for failing to use his turn signal at the bottom of the ramp.[1]

         After a few minutes, Counce asked to go to the nearby rest stop to use the restroom. Wolting allowed Counce to drive the van to the rest stop, and Wolting followed him in his patrol cruiser.

         At the rest stop, Wolting patted down Counce. Counce advised that he had approximately $4000 in cash. Counce went to the restroom, and then returned to Wolting's police cruiser.

         Wolting asked Counce his name and date of birth, however, Counce could not provide complete answers to Wolting's questions.[2] Wolting's dashcam video showed that at some point in their conversation, Wolting directed Counce to get out of his cruiser, put his “hands on the car” and “spread his legs.” (Dkt. 188-8, Ex. F). When Wolting grabbed Counce's right arm, Counce abruptly turned around. Counce claims Wolting yanked his arm with such force that it swung him around. Counce claims that Wolting then tripped and fell backwards. Wolting, however, claims that Counce turned around and started punching Wolting in the face.

         Two civilian bystanders (“the bystanders”) witnessed the altercation and intervened to assist Wolting. During the altercation, Wolting used a taser on Counce and both men received cuts and bruises. Wolting also called for backup and KHP Trooper Arnold and other law enforcement officers arrived on the scene.

         Wolting requested that Ellsworth County Emergency Medical Service (“EMS”) respond to the scene. Upon arrival, the troopers helped Counce walk over to EMS. EMS examined Counce and removed the taser probes. Photographs of Counce's injuries showed a gash on the back of his head, minor scrapes, and a cut on his thumb. EMS did not take Counce to the hospital.

         The troopers placed Counce in the front passenger seat of Arnold's police car. Arnold transported Counce to the Ellsworth County Jail, where Counce was detained between October 22 and December 2, 2013. At that time, Ploutz was the Sheriff of Ellsworth County, Kansas. Chamberlain was an Ellsworth County Sheriff's Deputy.

         Ploutz was aware of Counce's arrival to the jail on October 22, but was in and out of the facility on other business that day and was not directly involved with the booking process. Chamberlain assisted with booking Counce, but had no other interaction with him on October 22 once the booking process was complete. Chamberlain noted that Counce was acting and/or talking in a strange manner, and refused to answer questions without an attorney present. Counce did not answer any medical questions on the form, but had a black eye in his booking photo.[3]

         The Ellsworth County Jail contracted with a third-party, Shawn McGowan, a certified physician assistant, to provide medical services to the jail. McGowan visited the facility once a week, usually on Tuesdays, if needed. On other days, McGowan provided telephone consultations to the jail.

         Counce submitted six written medical requests during the 40 days he was detained in the jail. On October 30, 2013, Counce complained of nausea and a potential head injury and/or concussion. Counce noted that he had been tased and had cold extremities since October 22, 2013. McGowan noted that he saw Counce and evaluated him. McGowan offered Tylenol or ibuprofen, and Counce refused at that time.[4]

         On November 9, 2013, Counce stated that he was struck in the left eye during his arrest, and now that area was swollen and throbbing with pain. Counce noted that the swelling/pain “was there for a little for the past two weeks but it swelled up and started hurting the evening of November 8, 2013.” (Dkt. 163-4, at 3). McGowan evaluated Counce and prescribed Clindamycin, 300 mg three times a day, on November 11, 2013. McGowan stated that he “made sure [Counce] did not have any step-offs or tenderness along his orbits. Most of [Counce's] pain was down into the maxilla area.” (Dkt. 163-5, at 2). McGowan again offered anti-inflammatories, but Counce declined. Counce took the clindamycin, however, which improved the swelling and pain.

         Counce asked to see McGowan on November 16, 2013, to inform him that the swelling in Counce's face was improving. McGowan noted that Counce's face still felt tender in the maxilla area, but that also was improving.

         On November 24, 2013, Counce told McGowan that he tried to tell Ploutz and his deputies and the KHP troopers that he had pain in his right shoulder. But McGowan stated this was the first time Counce sent him a request noting pain in his shoulder. Counce also complained of lower lumbar back pain at that time.

         Counce also wrote McGowan a letter dated November 27, 2013, in which he stated that injuries keep showing up weeks later after the attack. “It's like being in a car wreck and the injur[ies] that were not obvious at first blush, start to appear days, weeks, or months later.” (Dkt. 163-6, at 3). Counce then noted pain in his lower right lumbar area of his back and right shoulder rotator cuff.

         McGowan saw Counce for his pain on November 27, 2013, and Counce had full range of motion in his shoulder. McGowan did not feel it was a fracture. If anything, McGowan thought “a possible internal and that would take an MRI, which [was] not needed at [that] time.” (Dkt. 163-5, at 2). According to McGowan, Counce needed to take anti-inflammatories, ice, and start some stretching, but Counce again refused the anti-inflammatories. For Counce's back, McGowan also suggested stretches, anti-inflammatories, and ice because it was the first line treatment. McGowan noted that if the pain continued to get worse or if Counce developed numbness or tingling sensation in his legs, then further workup would be needed.

         Counce also had one undated medical request in which he requested dental floss picks to remove food particles stuck between his teeth and complained of sweating and cold extremities. McGowan noted in his report that he was scheduled to see Counce on December 3, 2013, but that Counce left the Ellsworth County Jail on December 2, 2013. McGowan believed Counce's face injury had been improving.

         In January 2014, Counce was seen by a physician when he was transferred to Texas. Counce's radiology reports noted a cortical irregularity about the medial wall of the left maxillary sinus suggesting a minimally displaced fracture, sclerosis in the right shoulder, high riding humeral head which can be seen with a rotator cuff tear, and joint osteoarthrosis in the left knee. Counce was examined again in September 2015 for pain in his neck and right shoulder, and again in September 2017 for chronic pain in both shoulders and in the left knee.

         Based on these events, Counce filed the instant case alleging defendants used excessive force and were indifferent to his medical needs. Counce seeks monetary damages for these violations. Defendants argue that they committed no constitutional violations, and move for summary judgment.

         II. Summary Judgment Standards

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A fact is “material” when it is essential to the claim, and the issues of fact are “genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's favor. Haynes v. Level 3 Communs., 456 F.3d 1215, 1219 (10th Cir. 2006).

         The movant bears the initial burden of proof and must show the lack of evidence on an essential element of the claim. Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The nonmovant must then bring forth specific facts showing a genuine issue for trial. Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). The court views all evidence and reasonable inferences in the light most favorable to the non-moving party. LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004). However, the court can disregard statements that are conclusory or made without personal knowledge of the matter. See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006); Fed.R.Civ.P. 56(e); Fed.R.Evid. 602.

         III. Qualified Immunity

         Defendants claim that they entitled to qualified immunity-an “entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Government officials performing discretionary functions are typically eligible for qualified immunity unless two conditions are met: (1) the official violated a statutory or constitutional right and (2) the right was clearly established at the time the alleged violation occurred. Lowery v. Cty. of Riley, 522 F.3d 1086, 1091 (10th Cir. 2008). The court may consider either prong of the qualified immunity test first. Panagoulakos v. Yazzie, 741 F.3d 1126, 1129 (10th Cir. 2013). Because defendants have asserted a qualified immunity defense, the burden shifts to Counce to show the relevant law was clearly established, and to come forward with sufficient facts to show defendants violated the clearly ...

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