United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
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.
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
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.
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
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.
asked Counce his name and date of birth, however, Counce
could not provide complete answers to Wolting's
questions. 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.
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.
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
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.
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
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.
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.
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.
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.
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
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.
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
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.
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.
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.
Summary Judgment Standards
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).
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.
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