United States District Court, D. Kansas
CHRISTOPHER E. THOMPSON, Plaintiff,
OLUWATOSIN ORUNSOLU, et al., Defendants.
MEMORANDUM AND ORDER
L. TEETER, UNITED STATES DISTRICT JUDGE
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,
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.
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,  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. Doc. 4. The KDOC submitted its Martinez
report on June 14, 2018. 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.
July 2017 Use of Force
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.
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.
Plaintiff's Alleged Injury
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
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
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. 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.
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.
Placement in Segregation
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
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.
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. 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. Doc. 22.
Court first considers qualified immunity. 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
Summary Judgment Standard
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 ...