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Marshall v. Wiebe

United States District Court, D. Kansas

April 17, 2018




         Plaintiff Sean Marshall, an inmate in the custody of the Kansas Department of Corrections, filed this lawsuit pro se alleging violations of his Eighth Amendment rights against cruel and unusual punishment and deliberate indifference to serious medical need. This matter comes before the Court on Defendant Matthew Wiebe's Motion for Summary Judgment (Doc. 23). Defendant argues that he is entitled to summary judgment on Plaintiff's claims because Plaintiff failed to exhaust his administrative remedies and because Defendant is entitled to qualified immunity. For the reasons identified below, the Court grants Defendant's motion.

         I. Factual and Procedural Background

         At all relevant times, Plaintiff was an inmate housed at El Dorado Correctional Facility (“EDCF”). On March 20, 2015, corrections officer Daniel Bentz escorted Plaintiff to laundry to resize his sagging pants. Bentz asked Plaintiff what size he wore, and Plaintiff responded, “you are the tailor you tell me.” As a result, Bentz tried to restrain Plaintiff but could not because Plaintiff has a large upper body with short arms that makes him difficult to handcuff. Bentz then asked Defendant, who is also a correctional officer at EDCF, to assist him with another set of restraints. Together, Bentz and Defendant restrained Plaintiff and escorted him to the captain's office to discuss Plaintiff's insolent behavior.

         While Plaintiff was there, he acted rude and disrespectful toward the captain. Bentz ordered him to stand up and be escorted to the clinic for segregation multiple times, but Plaintiff refused. Bentz and Defendant then forcibly escorted Plaintiff to the clinic using an alternate escorting procedure. Bentz placed his left arm underneath and through Plaintiff's right arm and placed his palm on Plaintiff's right shoulder. Defendant took Plaintiff's other side and placed his right arm under Plaintiff's left arm and his right hand on Plaintiff's shoulder.

         Plaintiff alleges that on the way to the clinic he explained to Defendant that he's only an inch and a half away from being a dwarf and that as a result his arms are “severely short.”[1] He further alleges that he told Defendant that he was in severe pain because his elbows were in an awkward position due to his short arms and the handcuffs Defendant and Bentz had used on him. Plaintiff alleges that he asked Defendant to use another escorting procedure or specialized handcuffs. Defendant refused Plaintiff's requests.

         Plaintiff then began pushing against Defendant and tried to ram him into the wall. He also attempted to pull down with his arms and push his left shoulder into Defendant's rib cage. Defendant directed Plaintiff to stop pushing and pulling, but Plaintiff ignored the orders. Defendant and Bentz then took Plaintiff to the ground to maintain control. Additional correctional officers were called to help.

         During the altercation, Plaintiff yelled derogatory statements at the officers. One officer noticed that Plaintiff continued to turn his head towards them, so she used a mandibular pressure point to gain control and placed a spit net over Plaintiff's face. While on the ground, Plaintiff passively resisted and refused all orders to stand up and get off the floor, so the officers placed him in a mobilized restraint chair and took him to the clinic.

         Plaintiff refused all medical treatment at the clinic. One nurse reported that the officers had used force, but she did not note any injuries. She also noted that Plaintiff did not appear upset, emotional, or crying. A social worker noted that Plaintiff “was seen for segregation clearance” but he “refused to speak with” her even though he “was able to hold a conversation on the way to the cell house with Security.” She also reported that he did not have any immediate mental health needs.

         Plaintiff was then escorted back to the captain's office and later placed in segregation. Plaintiff alleges that while placing him in his new cell, Defendant “slam[med him] up against the wall of the cell[, ]” “smashed his face into the wall while another officer cut [his] clothes off” to perform a strip search, and then “squeez[ed]” his elbow. Plaintiff was issued three disciplinary reports for “Disobeying Orders, ” “Threaten[ing] or Intimidat[ing] Any Person, ” and “Insub[ordination]/Disrespect Officer/Other.”

         Three days after the incident, on March 23, Plaintiff went to the clinic and informed Travis Nickelson, APRN, that Defendant placed too much pressure on his arm when he was escorted to segregation. Plaintiff reported that “he was taken down and that an SST officer fell on his left arm and that it has been messed up since then.” Nickelson issued a “Belly Chain and/or alternate cuffing, for one month, arm sling for seven days, and placed Plaintiff on pain relievers. Nickelson also requested an x-ray of Plaintiff's elbow which revealed “slight irregularity of the radial head cortex, ” which was “suspicious for a nondisplaced fracture.” The reviewing doctor concluded that he “suspect[ed]” that Plaintiff sustained a “nondisplaced radial head fracture.”

         Follow up x-rays were taken approximately one month later, on April 6. The doctor who reviewed those x-rays concluded there was “questionable minimal defect at the articular surface of the radial head” which was “likely projectional, however a tiny nondisplaced fracture [was] not entirely excluded.” The doctor found “[n]o additional acute fracture or dislocation.” Follow up x-rays taken on April 17 revealed normal alignment and no fracture. Despite this, Plaintiff continued to report pain in his left elbow. On May 21, a doctor viewed additional follow up X-rays of Plaintiff's elbow and found no fracture or dislocation and no acute bone abnormality or interval changes since his prior exam.

         Plaintiff filed a grievance for “Use of Excessive Force” on April 13. In his grievance, Plaintiff alleges that Defendant used excessive force and fractured his elbow on March 20. There are no records of any other grievances filed by Plaintiff related to this matter.

         Plaintiff filed his Complaint on January 13, 2016. He brings his claims under 42 U.S.C. § 1983 alleging that Defendant violated his Eighth Amendment rights by using excessive force against him and through Defendant's deliberate indifference to Plaintiff's serious medical need. Defendant denies Plaintiff's allegations and asserts the affirmative defenses of failure to exhaust administrative remedies and qualified immunity. Defendant filed a motion for summary judgment on Plaintiff's claims, to which Plaintiff did not respond.

         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.[2] 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.[3] When the party moving for summary judgment bears the burden of proof, as opposed to the nonmoving party, “a more stringent summary judgment standard applies.”[4] Thus, in order to obtain summary judgment on a moving party's affirmative defense, the moving party “must establish, as a matter of law, all essential elements of the issue before the nonmoving party can be obligated to bring forward any specific facts alleged to rebut the movant's case.”[5] Only if the moving party meets this burden must the nonmoving party come forward and “demonstrate with specificity the existence of a disputed material fact.”[6] The Court views all evidence and reasonable inferences in the light most favorable to the party opposing summary judgment.[7]

         Because Garcia is pursuing this action pro se, the Court must be mindful of additional considerations. The Court reviews his pleadings, including those related to the present motion for summary judgment, “liberally and hold[s] them to a less stringent standard than those drafted by attorneys.”[8] However, the Court will not assume the role of advocate for the pro se litigant.[9]Likewise, Plaintiff's pro se status does not relieve him from the obligation to comply with procedural rules, including the Federal Rules of Civil Procedure.[10]

         On the same day that Defendant filed his motion for summary judgment, he sent Plaintiff a Notice to Pro Se Litigant Who Opposes a Motion for Summary Judgment explaining Plaintiff's burden under Fed. R. Civ. 56 and Local Rule 56.1. Despite receiving this Notice, Plaintiff filed no response to Defendant's motion. Under Fed.R.Civ.P. 56(e), if a party fails to properly address the moving party's factual assertions, the court may “grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it.”[11] Therefore, the Court will review Defendant's motion to determine if he is entitled to summary judgment.

         III. Analysis

         A. Exhaustion of Administrative Remedies

         Defendant argues that the Court should grant summary judgment in his favor on Plaintiff's claims because Plaintiff failed to exhaust his administrative remedies. The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”[12]When a prisoner fails to present claims through the full administrative remedy process, such claims are subject to dismissal.[13] “Failure to exhaust is an affirmative defense under the PLRA.”[14]Accordingly, the burden of proof is on Defendant.[15]

         The grievance procedure for Kansas state prisoners is set forth in K.A.R. 44-15-102. That regulation sets forth a four-step procedure available to inmates: (1) an attempt at informal resolution; (2) a grievance report submitted to the appropriate unit team member; (3) submission of the grievance to the warden; and (4) submission of the grievance to the Secretary of Corrections.[16] “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.”[17] “An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim.”[18] Furthermore, K.A.R. 44-15-101b provides that “[g]rievances shall be filed within 15 days from the date of the discovery of the event giving rise to the grievance, excluding Saturdays, Sundays, and holidays.”

         Defendant first argues that all of Plaintiff's claims fail because Plaintiff did not file his grievance within the 15-day period set forth in K.A.R. 44-15-101(b). Plaintiff's grievance alleges that Defendant used excessive force and fractured his elbow on March 20, 2015. Thus, the date of the discovery of the event is March 20, and Plaintiff had until April 10 to attempt informal resolution and file his grievance. Plaintiff did not file his grievance until April 13. However, the Tenth Circuit has held that “if a prison accepts a belated filing, and considers it on the merits, that step makes the filing proper for purposes of state law and avoids exhaustion, default, and timeliness hurdles in federal court.”[19] Defendant has not specifically cited to the responses Plaintiff received from his unit team or the warden regarding his grievance. But, the exhibits to the Martinez report, which Defendant cites to and relies upon in support of his summary judgment motion, indicate that the unit team and warden both accepted Plaintiff's late filing and considered it on the merits. Therefore, the Court declines to dismiss Plaintiff's claims on a timeliness basis.

         In the alternative, Defendant argues that Plaintiff's claim for deliberate indifference to serious medical need fails because Plaintiff did not file any grievance for this claim. When an inmate exhausts his administrative remedies as to some, but not all claims brought under § 1983, the Court should dismiss the unexhausted claims and proceed with the exhausted claims.[20]Plaintiff's April 13 grievance makes no allegation that Defendant interfered with, denied, or delayed Plaintiff's access to medical care. Plaintiff therefore failed to exhaust his administrative remedies with regard to this claim, and the Court grants summary judgment in Defendant's favor.

         B. Qualified Immunity

         Defendant next argues that he is entitled to qualified immunity on Plaintiff's claims. “Qualified immunity protects officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' ”[21] Qualified immunity leaves “ample room for mistaken judgments, ” protecting “all but the plainly incompetent or those who knowingly violate the law.”[22] When a defendant raises qualified immunity on summary judgment, the burden shifts to the plaintiff to demonstrate that (1) the defendant's actions violated a constitutional or statutory right and (2) the constitutional or statutory right was clearly established at the time of the conduct at issue.[23] Courts have discretion to decide the order in which to examine these two prongs.[24] Qualified immunity applies unless the plaintiff can satisfy both prongs of the inquiry.[25] Because the Court has already granted summary judgment to Defendant on Plaintiff's claim for deliberate indifference to serious medical need, it will only address whether Defendant is entitled to qualified immunity on Plaintiff's excessive force claims.

         Plaintiff's Complaint sets forth three excessive force claims. First, Plaintiff alleges that Defendant used excessive force by placing Plaintiff in inappropriate handcuffs thereby putting his elbow in an awkward position and fracturing it when he slammed Plaintiff to the ground. Second, Plaintiff alleges that Defendant used excessive force by allowing him to remain handcuffed behind his back knowing of Plaintiff's elbow injury, placing him a mobile restraint chair while he was inappropriately handcuffed, and placing a spit-mask on him. And third, Plaintiff alleges that Defendant used excessive force by smashing or pressing Plaintiff against the segregation cell wall and squeezing his elbow.

         The Eighth Amendment protects inmates from “cruel and unusual punishments.”[26] The Supreme Court has concluded that this amendment imposes a duty on the government not to use excessive force against prisoners.[27] Accordingly, a prison official violates the Eighth Amendment's prohibition against excessive ...

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