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Howard v. Rodgers

United States District Court, D. Kansas

June 26, 2018

BRYAN RICHARD HOWARD, Plaintiff,
v.
RAY RODGERS, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         Plaintiff Bryan Richard Howard brings this Bivens[1] action against defendants Ray Rodgers, Doug Wettlauffer, Paul Leonhard, Roger Crooks, and Kimberly Maurelli. Plaintiff's Amended Complaint alleges that defendants violated 42 U.S.C. § 1983 when Ray Rodgers sexually assaulted plaintiff and the other defendants failed to protect him from this assault. See Doc. 94 at 6-12.

         Now, all five defendants, together, have filed a Motion for Summary Judgment (Doc. 84). Their sole argument contends that plaintiff has failed to exhaust his administrative remedies and so, the Prison Litigation Reform Act of 1995 (“PLRA”) bars him from prosecuting this cause of action. The court agrees and grants summary judgment for defendants against all of plaintiff's claims.

         I. Background

         Before the court recites the facts, it must address another matter of some concern. Plaintiff's Amended Opposition (Doc. 92) does not comply with D. Kan. Rule. 56.1(b). This rule provides:

(1) A memorandum in opposition to a motion for summary judgment must begin with a section containing a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute must be numbered by paragraph, refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, state the number of movant's fact that is disputed.
(2) If the party opposing summary judgment relies on any facts not contained in movant's memorandum, that party must set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by subsection (a), above. All material facts set forth in this statement of the non-moving party will be deemed admitted for the purpose of summary judgment unless specifically controverted by the reply of the moving party.

D. Kan. Rule 56.1(b). Plaintiff has not complied with this rule. Specifically, he has not followed subsection (1) of the rule because he fails to “refer with particularity to those portions of the record upon which [he] relies . . . .” Instead, he merely refers to an exhibit in general terms, see Doc. 92 at 2 ¶ 4 (“See attached Exhibit D.”), and sometimes, he fails to refer to the record at all, see Id. at 2-3 ¶¶ 5-7, 9 (asserting only that “[p]laintiff denies the averments”).

         More concerning yet is paragraph 9's deviation from Rule 56.1(b). See Id. There, plaintiff asserts:

[W]hile Plaintiff was in the [Special Housing Unit], he sent a BP9 and a BP10 to Administrative Remedies Central Office, 320 First Street, NW, Washington, D.C. 20534 setting forth the sensitive nature of his grievances with Defendant Rodgers. From those mailings he never received a response. Plaintiff did, however, get a response from his e-mail to the OIG as noted on page 3 of this memorandum.[2] It would be Plaintiff's position that he did exhaust available administrative remedies with regard to the issues identified in this lawsuit.

Id. at 3 ¶ 9 (footnote added). Plaintiff fails to support this assertion with any citation to the record. So plaintiff has failed to controvert this fact in the manner required by the rules.

         Likewise, in the other paragraphs where plaintiff simply “denies the averments, ” he fails to controvert those facts properly. See Mitchell v. Kan. City Kan. Sch. Dist., No. 16-2145, 2017 WL 1303276, at *2 (D. Kan. Apr. 7, 2017), aff'd, 714 Fed.Appx. 884 (10th Cir. 2017) (finding conclusory denials insufficient on a motion for summary judgment).

         Plaintiff also fails to comply with Rule 56.1(b)(2). This rule required plaintiff to “set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by subsection (a), above.” D. Kan. Rule 56.1(b)(2). Plaintiff does not explicitly state any additional facts. Instead, under the heading “Statement of the Question Presented, ” plaintiff asserts, what the court construes as, additional facts. The title of the heading is not detrimental to plaintiff. But his failure to restrict his assertions to “concise statements of material facts” and “refer with particularity to those portions of the record upon which [he] relies . . . .” is detrimental. See D. Kan. Rule 56.1(b)(2) (referring to subsection (a)). Instead of complying with this rule, plaintiff asserts his additional material facts in extended paragraphs with a general citation at the end of each paragraph. This general citation never includes a pincite to a specific location within the exhibit.[3] This will not suffice.

         Our rules require defendants to controvert each fact specifically in their Reply or they are deemed admitted. D. Kan. Rule 56.1(b)(2). But the court does not expect defendants to comb through each exhibit to find the facts plaintiff asserts in an improper manner. Likewise, when plaintiff “refers to the exhibit as a whole, ” it is “inappropriate for the court to search through plaintiff's exhibits for evidence to support his case.” Mitchell, 2017 WL 1303276, at *2. For these reasons, plaintiff has failed to assert additional facts properly. See Cross v. Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (“[I]t is the responding ...


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