United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
Kendrick Dewayne Moore brings this § 1983 action,
claiming that defendant Rod Taylor violated his
constitutional rights when plaintiff was housed in the Thomas
County jail on April 25, 2015. Specifically, plaintiff claims
that defendant Taylor threatened to restrain him with duct
tape and hang him, and wanted plaintiff to fall asleep so he
could kill him. Plaintiff claims that these facts (and
others) show excessive force. Plaintiff also argues that
defendant Taylor violated his rights by moving him from the
jail to the Lester building, which is next to the jail's
main building and serves as a garage and storage space.
court previously dismissed the two other defendants from this
case. Defendant Taylor filed a motion for summary judgment
(Doc. 58). In that motion, defendant Taylor argues that
plaintiff cannot show excessive force because mere threats
are insufficient to constitute a constitutional violation.
See McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th
Cir. 2001) (threatening to mace an inmate was insufficient to
state an Eighth Amendment claim); Swodoba v. Dubach,
992 F.2d 286, 290 (10th Cir. 1993) (threatening to kill an
inmate insufficient); Collins v. Cundy, 603 F.2d
825, 827 (10th Cir. 1979) (threatening to hang an inmate
insufficient). Defendant further argues that plaintiff's
detention in the Lester building did not endanger
plaintiff's health or safety.
plaintiff initially proceeded pro se, the court appointed
counsel for the limited purpose of advising and assisting
plaintiff in preparing and filing a response to
defendant's summary judgment motion. The court also
stayed discovery pending a ruling on defendant's summary
judgment motion. Although discovery has been stayed, a
Martinez report is in the record, as well as several
affidavits and declarations by plaintiff and others who were
present at different times during the relevant events. One of
the declarations is signed by Marc Finley, who is the former
Undersheriff of Thomas County and wrote a letter in September
2015 detailing a number of defendant Taylor's alleged
acts that Finley believed show violations of individuals'
rights and “put them in a position of fear for their
safety.” (Doc. 65, at 65.) But some of the evidence
submitted by plaintiff is inadmissible in its present form.
The content suggests that the evidence may be available in
admissible form, but plaintiff has not yet obtained it in
admissible form. This evidence relates not only to the
details of what happened on April 25, 2015, but also bears on
whether defendant Taylor's threats were merely idle
threats that do not rise to a constitutional violation, or
whether his words and actions constituted an imminent threat
of serious harm. See Purkey v. Green, 28 Fed.Appx.
736, 745 (10th Cir. 2001) (“While an ‘idle
threat' of impending physical harm that is not carried
out will not suffice to state an Eighth Amendment claim, an
imminent threat of serious harm, even though injury never
actually occurs, will suffice.”); Northington v.
Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992)
(“Courts nevertheless have recognized that convicted
prisoners have a constitutional ‘right to be free from
the terror of instant and unexpected death' at the hands
of their keepers.”) (citation omitted).
asks the court either to deny summary judgment on its merits,
or to deny or stay the motion pursuant to Fed.R.Civ.P. 56(d).
Under Rule 56(d), the court may stay or deny a motion for
summary judgment to allow further discovery if the nonmovant
states by affidavit that he needs additional time to develop
evidence to oppose the motion. Price v. W. Res.,
Inc., 232 F.3d 779, 783 (10th Cir. 2000) (applying, as
several other cases cited in this order, the former version
of Rule 56(d)-Rule 56(f)). The decision whether to grant a
Rule 56(d) motion lies within the sound discretion of the
court. Jensen v. Redevelopment Agency, 998 F.2d
1550, 1553-54 (10th Cir. 1993). But the nonmovant must
satisfy several requirements to gain Rule 56(d) relief. By
affidavit, he must explain: (1) why facts precluding summary
judgment are unavailable; (2) what probable facts he can find
through further discovery; (3) what steps he has taken to
obtain such facts; and (4) how additional time will allow him
to controvert facts. Price, 232 F.3d at 783 (quoting
Comm. for the First Amendment v. Campbell,
962 F.2d 1517, 1522 (10th Cir. 1992)); see also F.D.I.C.
v. Arciero, 741 F.3d 1111, 1116 (10th Cir. 2013)
case, plaintiff's attorney filed a Rule 56(d) affidavit.
Appointed counsel explained that he had not been able to
obtain evidence on all facts precluding summary judgment
because discovery has been stayed. The court further notes
that counsel was only recently appointed, and appointed for
only a limited scope. Counsel also listed information
currently unavailable to him and stated that he believes the
witnesses identified may have information about pertinent
material facts, including the following:
(a) that Moore had calmed down while others were present and
before he was left alone with Taylor in the shed; (b) that
additional evidence should or might be available supporting
Finley's belief that Taylor destroyed evidence; (c)
details about who was or was not present in the shed at
specific times when Moore has stated in Affidavits and his
Declaration that Taylor threatened to “hang his black
ass” and had access to various tools and rope which led
to Taylor's fear of immediate death.
(Doc. 65, at 76.) Counsel indicates that he has undertaken
some independent research and obtained a few declarations and
statements, but that “[t]raditional discovery such as
depositions pursuant to subpoena appear to be required to
track down [the other relevant evidence].”
(Id. at 75.) Counsel also suggests that he will be
able to controvert facts regarding whether a reasonable
person would have believed he faced imminent danger and
threats to his life with discovery because public information
reflects a recall petition against defendant Taylor, and
Finley's declaration details a number of incidents of
violence and threats by Taylor against prisoners and others.
affidavit is sufficient to indicate that conducting at least
some discovery may reveal facts pertinent to the incident at
issue-beyond those facts presented by the Martinez
report. The court is also persuaded that discovery will allow
appointed counsel an opportunity to develop relevant evidence
in admissible form. As noted above, counsel attached what he
has been able to obtain so far, but because the parties have
not engaged in discovery, much of that evidence is hearsay or
inadmissible for other reasons. The content of the documents
suggests, however, that through discovery, counsel may be
able to obtain relevant information in admissible form.
consideration of the circumstances and facts in this case,
the court decides that it is appropriate to deny
defendant's motion for summary judgment without
prejudice. After depositions are taken, it appears likely
that both parties will have additional evidence to support
their positions. The court believes that the most efficient
course of action is to deny the motion for summary judgment
now, without ruling on the merits.
court recognizes that counsel was appointed only for the
limited purpose of advising and assisting plaintiff in
preparing and filing a response to defendant's summary
judgment motion. Because discovery is necessary to be able to
submit a full response to defendant Taylor's motion, the
scope of counsel's representation may need to be expanded
to allow for discovery. The court therefore directs counsel
for both parties to contact the magistrate judge within ten
days to set up a phone conference to address the scope of
counsel's representation and how to proceed with
IS THEREFORE ORDERED that defendant's motion for
summary judgment (Doc. 58) is denied without prejudice and
without considering the merits.
IS FURTHER ORDERED that counsel should contact Judge
James's chambers within ten days to set up a phone
conference to address the scope of ...