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Thompson v. Orunsolu

United States District Court, D. Kansas

December 20, 2018

OLUWATOSIN ORUNSOLU, et al., Defendants.



         Plaintiff Christopher Thompson brings this action pursuant to 42 U.S.C. § 1983, asserting claims for violation of his rights under the Eighth and Fourteenth Amendments. Doc. 1. Defendants Oluwatosin Orunsolu, Maria Bos, Tim Smith, [1] Dan Schnurr, and Joe Norwood have moved to dismiss Plaintiff's claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or, in the alternative, for summary judgment under Rule 56. Docs. 21-22. For the following reasons, the Court construes Defendants' motion as one for summary judgment and finds that it should be granted on the basis of qualified immunity.

         I. BACKGROUND

         Plaintiff Christopher Thompson is an inmate in the custody of the Kansas Department of Corrections (“KDOC”), residing at the El Dorado Correctional Facility (“EDCF”) in El Dorado, Kansas. Doc. 1 at 1. Proceeding pro se, [2] Plaintiff filed this action on November 20, 2017, against various correctional officers and officials, alleging violations of his constitutional rights. Id. The Court previously ordered the KDOC to prepare a report-in accordance with Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978)-that would provide the results of the KDOC's investigation into Plaintiff's allegations and offer any supporting affidavits, applicable rules and regulations, medical records, tapes of the incident, and other materials.[3] Doc. 4. The KDOC submitted its Martinez report on June 14, 2018.[4] Doc. 10. The following facts are taken from the record-including the complaint, the Martinez report, and properly submitted affidavits and exhibits-and are either uncontroverted or construed in the light most favorable to Plaintiff as the nonmoving party.[5]

         A. July 2017 Use of Force

         Plaintiff's claims center on a July 2017 incident involving Plaintiff, his cellmate, and Defendant Oluwatosin Orunsolu, a Corrections Supervisor I (CSI) at EDCF, during which Orunsolu deployed a chemical agent into Plaintiff's cell. On July 2, 2017, Orunsolu and Samantha Higbee, a Corrections Officer I (COI) at EDCF, were distributing meal trays to the inmates in Plaintiff's housing unit. Doc. 10 ¶ 8. When Orunsolu and Higbee approached Plaintiff's cell, both Plaintiff and his cellmate, Terry Fine, were standing at the door. Id. The parties disagree regarding what transpired next. Both Orunsolu and Higbee testified that Fine reached through the food passage slot, grabbing Orunsolu. Doc. 16 at 1, 3. After Plaintiff and Fine resisted Orunsolu's orders to step back, Orunsolu withdrew his mace from his belt. Id. While Plaintiff moved toward the back of the cell, Orunsolu deployed a two to three second burst of mace into the cell, striking Fine in his midsection. Id. at 1, 3-4. Meanwhile, Plaintiff claims he never saw Fine reach through the food pass. Doc. 12 ¶ 8. Plaintiff claims he received his meal from Orunsolu and Higbee and was eating on his top bunk when he heard Fine cry out. Doc. 34 at 3. Plaintiff alleges the commotion caused him to “look up, ” at which point Orunsolu sprayed mace through the food pass. Id. Plaintiff claims the spray blinded him, causing him to fall out of his bunk and injure his lower back. Id. at 4.

         In sum, the parties agree that Orunsolu deployed mace through the food pass into Plaintiff's cell. The parties agree that Plaintiff was not standing at the door when the chemicals were deployed. The parties disagree on Plaintiff's exact location at the moment the mace was deployed, with Plaintiff asserting he was on the top bunk (and subsequently fell) and Orunsolu and Higbee testifying that Plaintiff moved to the back of the cell after Orunsolu reached for his mace canister. Following the incident, a response team removed Plaintiff and Fine from their cell and took them to the showers for decontamination. Doc. 10 ¶¶ 10-11.

         B. Plaintiff's Alleged Injury

         Medical staff subsequently checked Plaintiff and Fine. Id. at ¶ 11. The Use of Force Report generated in connection with the July 2, 2017 incident does not indicate Plaintiff sustained any injuries. Doc. 10-3 at 2. Likewise, the officers involved in the incident-Orunsolu and Higbee- testified that Plaintiff did not complain of any injury or appear to be in distress. Doc. 16 at 2, 4. Plaintiff first reported an alleged injury stemming from the incident on July 20, 2017, when he submitted a Health Services Request Form for lower back pain and trouble breathing. Doc. 14-2 at 14.[6] In the form, Plaintiff claims he “got maced and feel [sic] off the top bunk, ” injuring his back. Id. According to the form, a medical appointment was scheduled for the following day; however, despite his request, Plaintiff refused to go to the appointment when called. Id.

         Plaintiff did not make any further medical requests related to his alleged back pain until early September 2017 (over two months after the incident with Orunsolu). Doc. 14-1 at 101-04; Doc. 14-2 at 11.[7] Medical records from Plaintiff's September 8, 2017 exam indicate Plaintiff denied any gait dysfunction or radiation of pain to his lower extremities. Doc. 14-1 at 101. Plaintiff returned to the clinic on October 2, 2017, again complaining of lower back pain stemming from an incident “[a]pproximately one month ago” when Plaintiff “was maced by” a correctional officer (presumably a reference to the July 2, 2017 incident). Id. at 82. The notes from this visit indicate Plaintiff was able to walk into the office and get on and off the exam table without assistance, and that-although he had “mild tenderness” in his lower back-his range of motion was within normal limits. Id. at 82-84.

         Over the next several months, Plaintiff returned to the clinic multiple times for alleged back pain. Doc. 10 ¶ 18. On August 21, 2017, Plaintiff filed a claim for property damage/loss or personal injury, again claiming Orunsolu maced him, causing him to fall off his bunk and sustain a lower back injury. Doc. 10-4 at 1. The Secretary of Corrections disapproved Plaintiff's claim. Id. at 2.

         C. Placement in Segregation

         In connection with the July 2, 2017 incident, both Plaintiff and Fine received Disciplinary Reports charging them with Class I Battery and were placed in segregation. Doc. 1-2 at 1-2; Doc. 10 ¶ 12; Doc. 10-2 at 1, 11. Defendants Tim Smith, Corrections Manager II (Major), and Maria Bos, Corrections Manager II in charge of Classification, approved the placement. Doc. 1-2 at 2. The KDOC held a hearing on Plaintiff's charge on July 10, 2017, and, following the hearing, dismissed the charge for lack of evidence. Doc. 10-2 at 7-10. But the KDOC found Fine guilty of battery for grabbing the officers through the food pass. Id. at 13-20.

         Following the dismissal of his charge, Plaintiff submitted grievances to various departments and prison officials regarding his continued placement in segregation. Doc. 1-2 at 7, 9, 14-15, 21-22, 24-25. However, Plaintiff remained in segregation. Records indicate Plaintiff remained in segregation due to misconduct and behavioral concerns. Id. at 13 (recommending that Plaintiff be sent “to HCF for long term restricted housing placement” based on behavior, disciplinary history, and safety concerns); Doc. 10-1 (reciting Plaintiff's criminal and disciplinary history). Plaintiff filed this action on November 20, 2017, alleging violations of his Eighth and Fourteenth Amendment rights. Doc. 1.


         Plaintiff brings two claims against Defendants-in their individual capacities-pursuant to § 1983: Count I (against Orunsolu) based on an Eighth Amendment violation for excessive force; and Count II (against all other defendants) based on a Fourteenth Amendment violation of Plaintiff's due process rights. Id. at 4.[8] In his complaint, Plaintiff alleges Orunsolu violated his Eighth Amendment rights by spraying him with mace-causing him to fall off his bunk and injure his lower back-and then falsifying a disciplinary report about the incident. Id. at 4, 7-8. Plaintiff alleges the other defendants-Bos, Smith, Dan Schnurr (acting Warden at EDCF at the time of the alleged events), and Joe Norwood (Secretary of Corrections for the State of Kansas)-violated his Fourteenth Amendment rights by relying on Orunsolu's allegedly false incident report to justify leaving him in segregation. Id. at 4, 8-9. Defendants move to dismiss, or, in the alternative, for summary judgment, arguing that: (1) Plaintiff failed to exhaust his administrative remedies with respect to his Eighth Amendment excessive force claim as required under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, and is therefore barred from pursuing relief under § 1983 for that claim; and (2) qualified immunity shields them from Plaintiff's claims.[9] Doc. 22.

         The Court first considers qualified immunity.[10] For their qualified-immunity argument, Defendants rely on facts from, and materials attached to, the Martinez report submitted by the KDOC. A Martinez report may not be used at the motion to dismiss stage to resolve factual disputes. Smith v. Trapp, 2018 WL 587230, at *1 (D. Kan. 2018) (citing McAdams v. Wyo. Dept. of Corr., 561 Fed.Appx. 718, 720 (10th Cir. 2014)). In reviewing a motion to dismiss, if the court considers materials that were not attached to the complaint or incorporated into the complaint by reference-including documents attached to a Martinez report-it generally must convert the motion to one for summary judgment. Id. (citing GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384-85 (10th Cir. 1997); Ketchum v. Cruz, 961 F.2d 916, 919 (10th Cir. 1992)). Therefore, the Court considers Defendants' alternative motion for summary judgment. See Snavely v. Kan. Dep't of Corr., 2011 WL 1230514, at *3 (D. Kan. 2011) (“Because the court has considered the Martinez report in evaluating defendants' claims, the court resolves the motion under the defendants' request for summary judgment.”); Jones v. Roberts, 2013 WL 1308272, at *1 (D. Kan. 2013) (“The court has considered documents and affidavits attached to the Martinez Report . . . Consequently, this motion is resolved as one for summary judgment.”).

         A. Summary Judgment Standard

         Summary judgment is appropriate if “the record, including depositions, documents, . . . affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials” establishes 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; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (quoting prior version of Rule 56). The moving party bears the initial burden to establish the absence of a genuine issue of fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant to demonstrate that genuine issues remain for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). To carry this burden, the nonmovant “may not rely merely on . . . its own pleadings.” Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010) (internal quotations and citations omitted). “Rather, it must come forward with facts supported by competent evidence.” Id. The inquiry turns on “whether the evidence presents a sufficient disagreement to require submission to ...

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