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McCoy v. Heimgartner

United States District Court, D. Kansas

January 7, 2019

DERON MCCOY, JR., Plaintiff,
v.
JAMES HEIMGARTNER, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES UNITED STATES DISTRICT JUDGE

         This case comes before the court on Defendants' motion to dismiss, or in the alternative motion for summary judgment. (Doc. 25.) The motion has been fully briefed and is ripe for decision. (Docs. 26, 38, 47.) Defendants' motion is GRANTED for the reasons stated herein.

         I. Facts and Procedural History[1]

         Plaintiff Deron McCoy, Jr. is an inmate in the custody of the Kansas Secretary of Corrections. On October 27, 2016, Plaintiff was housed at El Dorado Correctional Facility (“EDCF”). At the times relevant to this action, Plaintiff was housed in cell house B-1, which is the restricted housing (RH) cell house. Currently, Plaintiff is housed in general population. (Doc. 38 at 4.) Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. The court granted Plaintiff leave to proceed in forma pauperis. Plaintiff names as Defendants: James Heimgartner, EDCF Warden; SORT Member Austin Goad; First Sergeant Jonethen Patterson; First Sergeant Troy Carrell; and Correctional Officer William Riddle. Plaintiff sues each Defendant in their individual and official capacities. Plaintiff seeks relief in the form of nominal damages, compensatory damages, punitive damages, a declaratory judgment, and a permanent injunction directing Defendant Heimgartner and/or KDOC officials to amend the KDOC strip search policy.

         EDCF has several written policies regarding the transfer of inmates both within the facility and transferring out of the facility. Plaintiff is very familiar with the strip search procedure as he is subjected to frequent strip searches due to previously being housed in the RH cell house. Plaintiff states that he was strip searched each time he went outside to the segregation yard and returned to the RH cell house from the yard. The strip search policy requires all inmates leaving and entering the RH cell house to be strip searched. While housed at EDCF, Plaintiff's record shows a lengthy history of disciplinary issues. It includes, but is not limited to, the following disciplinary reports: having dangerous contraband, having less dangerous contraband, disobeying orders, insubordination, fighting, battery, possessing sexually explicit materials, unauthorized dealing or trade, use of stimulants, threatening or intimidation of other persons, and interference with cell operator's visibility. (Doc. 19, Exh. 1.)

         On October 27, 2016, pursuant to a court order, Plaintiff was to be transported to Reno County for court proceedings. The EDCF policy required Plaintiff to be strip searched as he was leaving the RH cell house. (Doc. 19, Exh. C.) Defendant Goad took Plaintiff to a strip out cage. Goad searched Plaintiff's clothes after they were removed. Plaintiff's body parts were inspected pursuant to the policy. Part of the strip out procedure is for inmates to bend down, squat, spread their buttocks and then cough. (Doc. 19, Exhibit D, p. D-5). The policy does not indicate the depth an inmate is required to squat for successful completion of the search. Plaintiff attempted to perform this part of the search. After doing so, Plaintiff stood up and Goad stated that his squat was not good enough and that he needed to squat further down. Goad directed Plaintiff to redo the squat. Plaintiff attempted to do it again and immediately felt a sharp pain in his lower back. Goad again told Plaintiff that he had not squatted low enough and needed to squat down to the floor. Plaintiff informed Goad that “that's not right” and that he couldn't squat as low as Goad wanted him since he had a back injury. (Doc. 38 at 7.) Plaintiff allegedly described the extent of his back injury. Defendant Patterson had been observing the strip search from outside the door. Plaintiff asked for assistance from Patterson in resolving the problem. Patterson stepped close to the door and Plaintiff explained his medical condition that kept him from squatting low to the ground. Patterson did not respond. Goad then instructed Plaintiff to perform the squat again. Plaintiff again attempted to squat down. While Plaintiff was squatting down, Plaintiff alleges that Patterson stated, “come on you can drop it further than that.” Plaintiff immediately straightened and allegedly observed Patterson and Goad smiling. (Docs. 26 at 4-5; 38 at 5-9.)

         Plaintiff started yelling that he was being sexually harassed in the cell. Plaintiff requested a grievance form and a pencil. Patterson gave him a form. Plaintiff allegedly stated that he was going to write a grievance on Patterson and Goad. Defendant Carrell then arrived and asked what the problem was. Plaintiff explained that he had a preexisting back injury and could not squat fully to the ground. Carrell left the area and spoke with medical staff. Carrell verified that Plaintiff had a back injury and “medical restrictions.” (Doc. 38 at 11.) The record reflects that Plaintiff's medical restriction states that he cannot climb stairs. (Doc. 36, Exh. C.) Carrell told Plaintiff that he would be required to perform the squat as far as he could go down. At that time, Defendants Goad and Patterson did not consider the strip search completed due to Plaintiff's failure to comply with the squat portion of the search.[2] (Doc. 19, p. 2). Goad stated that Plaintiff barely bent his knees during the strip search. (Doc. 19 at 2.)

         Plaintiff complied with Carrell's request to again squat during the strip search and again felt extreme pain. Plaintiff was then transferred by Carrell and an unnamed officer to the Admissions & Discharge (“A&D”) area of EDCF to be transported to Reno County. Plaintiff was locked in a single man holding cell in the A&D area. Carrell and the unnamed officer then left. Plaintiff states that the cell only contained a single bench seat and that there was “never an opportunity to obtain any contraband or any inmate around that could give [him] any contraband.” (Doc. 38 at 12.) About 20 to 30 minutes later, Defendant Riddle, who works in the A&D area of EDCF, came by the holding cell. Riddle told Plaintiff to submit to the strip search in accordance with EDCF policy. EDCF policy requires all inmates being transferred from A&D to another facility to be strip searched before leaving the facility. Plaintiff informed Riddle that he had already been subject to a strip search and that he had been under constant observation and isolated from other inmates in the interim. Riddle told Plaintiff that it was EDCF policy and that he must be strip searched. Plaintiff then complied with Riddle's request and does not allege any additional back pain associated with having to squat during this strip search. (Docs. 26 at 6; 38 at 10-13.)

         From October 27, 2016 to November 17, 2017, Plaintiff alleges he suffered extreme shooting pains in his lower back that extended down his legs to his feet as well as tingling numbness in his legs. Plaintiff also alleges that he began to experience severe anxiety requiring treatment in the form of counseling and anti-anxiety medication.

         On October 27, Goad filled out a disciplinary report stating that Plaintiff disobeyed orders and interfered with official duties after failing to comply with the strip search. Goad stated that Plaintiff “refused to give a full squat by barely bending his knees. This is an insufficient [sic] to the proper strip search procedure and creates a security risk if he were to be escorted.” (Doc. 19, Exh. E at 1.) Plaintiff was served with a copy of the disciplinary report on November 21, 2016. (Doc. 19, Exh. E at 4.) A hearing on the disciplinary violation was held on November 28, 2016. Plaintiff testified that he “did squat as far as I could.” (Id. at 14.) After hearing the testimony, the hearing officer found Plaintiff not guilty of the violations. The hearing officer stated as follows: “Based on testimony from the SST supervisor and the offender did attempt 3 or more times to perform the deep knee bend and squat. This hearing officer finds offender not guilty of the charges of disobeying orders. Offender not guilty of interference of official duties as the strip out process did [not] cause any substantiated delay.” (Id.; see also Docs. 26 at 8; 38 at 13-14.)

         Plaintiff's medical records show that Plaintiff had a pre-existing back condition that was diagnosed in 2014. Plaintiff was taking lipoic acid, Tylenol, and Ibuprofen for that condition. Plaintiff's medical records also show that Plaintiff had serious mental health issues including anxiety that existed before October 2016.[3] On November 1, 2016, Plaintiff denied any injuries. (Doc. 19, Sealed Exhibit I, p. I-236). The medical records further show that on November 2, 2016, Plaintiff reported no concerns or needs during a medical rounds visit. (Doc. 21, Sealed Exhibit I, p. I-238). On November 8, 2016, Plaintiff refused treatment for his chronic conditions. (Doc. 21, Sealed Exhibit I, p. I-240). On November 10, 2016 and November 14, 2016, Plaintiff reported no concerns or needs during the medical rounds visits. (Doc. 21, Sealed Exhibit I, pp. I-242 and I-245).

         Plaintiff attempts to controvert this medical evidence by asserting that he had sick calls for back and shoulder pain. Those calls, however, were allegedly made beginning January 26, 2017. (Doc. 38 at 3.)

         On March 10, 2017, Plaintiff filed a sexual abuse grievance relating to the October 27, 2016 incident. Plaintiff's grievance was determined to be unfounded. On May 8, 2017, Plaintiff's grievance was reviewed by Defendant Heimgartner who determined that no further action is necessary. On May 21, 2017, Plaintiff appealed to the Secretary of Corrections. On May 30, 2017, the appeal was denied. (Doc. 13, Exh. A.)

         Plaintiff filed this action on August 15, 2017. (Doc. 1.) Judge Crow screened Plaintiff's complaint and entered an order requiring Plaintiff to show cause why the complaint should not be dismissed as it failed to state a claim. (Doc. 4.) Alternatively, Judge Crow allowed Plaintiff to amend. Plaintiff filed an amended complaint and later received authorization to file a second amended complaint. (Doc. 12, 13.) The court ordered the Kansas Department of Corrections to file a Martinez report regarding the allegations in Plaintiff's amended complaint. (Doc. 6.) On March 27, 2018, the Martinez report was filed. (Doc. 19.)

         On May 8, Defendants moved to dismiss or, in the alternative, for summary judgment. (Doc. 25.) Plaintiff filed a response brief on July 18, after receiving an extension. (Doc. 38.) Additionally, Plaintiff filed exhibits in support of his second amended complaint. (Doc. 36, 37.) The exhibits include sick call requests, Plaintiff's medical restriction regarding stair climbing, and an affidavit. (Doc. 36.) The affidavit is essentially a verbatim recitation of the facts set forth in Plaintiff's response. (Doc. 36, 38.) Defendants filed a reply brief on August 30.

         On October 31, this court notified the parties that it was treating the motion as one for summary judgment as both parties referenced materials outside the pleadings. (Doc. 58.) The court provided Plaintiff with an opportunity to amend his response and include additional exhibits. Plaintiff did not file a supplemental brief in response to the court's order. Therefore, the motion is now ripe for decision.

         II. Summary Judgment Standards

         Summary judgment is appropriate if the moving party demonstrates that 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(a). A fact is “material” when it is essential to the claim, and the issues of fact are “genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's favor. Haynes v. Level 3 Commc'ns, 456 F.3d 1215, 1219 (10th Cir. 2006). The movant bears the initial burden of proof and must show the lack of evidence on an essential element of the claim. Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548 (1986)). The nonmovant must then bring forth specific facts showing a genuine issue for trial. Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). The court views all evidence and reasonable inferences in the light most favorable to the nonmoving party. LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).

         As noted previously, Plaintiff is proceeding pro se. A pro se litigant's pleadings are to be liberally construed and held to a less stringent standard than pleadings by represented parties. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the court does not become an advocate for the pro se litigant, and “will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues.” Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991). “Plaintiff's pro se status, in and of itself, does not prevent this Court from granting summary judgment.” Calia v. Werholtz, 426 F.Supp.2d 1210, 1214-15 (D. Kan. 2006) (citing Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992)).

         III. Analysis

         Plaintiff's second amended complaint sets forth several claims against Defendants under 42 U.S.C. § 1983. Plaintiff alleges that Defendants' actions violated his Fourth Amendment rights to be free from unreasonable searches, his Eighth Amendment right to be free from cruel and unusual punishment, his First Amendment rights by retaliating against him for filing a grievance, and the Equal Protection Clause for different treatment of prisoners.

         Defendants move for summary judgment on all claims. The arguments will be addressed in turn.

         A. Exhaustion

         Prisoners are required to exhaust administrative remedies before bringing suit. 42 U.S.C. § 1997e(a). Exhaustion pursuant to § 1997e(a) requires “compliance with an agency's deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). “An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim ... for failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). There are two aspects of the exhaustion requirement. They are: (1) “the administrative grievance must have alleged the same facts as the court complaint;” and (2) “the plaintiff must follow the prison's grievance procedures.” Williams v. Wilkinson, 659 Fed.Appx. 512, 514 (10th Cir. 2016) (citing Woodford, 548 U.S. at 90-91).

         Defendants claim that Plaintiff has failed to exhaust his claims because his grievance was filed pursuant to Prison Rape Elimination Act (PREA), 42 U.S.C. § 15601 et seq., and did not raise the issues that are set forth in his second amended complaint. (Doc. 26 at 12.) The KDOC requires that all inmates avail themselves of the grievance procedure set forth in K.A.R. § 44-15-102 which includes four steps. First, an inmate must attempt informal resolution. Second, the inmate submits a grievance report to the team member. Third, the inmate then submits the grievance to the warden. Finally, the inmate appeals to the Secretary of Corrections. Barnett v. Kansas, No. 16-3008-SAC-DJW, 2016 WL 3618655, at *3 (D. Kan. July 6, 2016). Defendants argue that Plaintiff's grievance was a PREA complaint and that such a complaint does not satisfy the prison grievance process. (Doc. 47 at 5.) Defendants cite to Howard v. Rodgers, No. 17-3019-DDC-TJJ, 2018 WL 3122175, at *4 (D. Kan. June 26, 2018), in support of their position. In Howard, the court determined that although the plaintiff argued that he followed procedures under PREA, the plaintiff failed to establish those facts. The court also cited other decisions that stated PREA's procedures do not excuse the failure to exhaust. See id.

         In this case, although Plaintiff filed a grievance that he indicated was a “sexual abuse grievance”, the uncontroverted facts show that he fully exhausted that grievance as set forth in K.A.R. § 44-15-102.[4] Plaintiff's grievance was submitted to the team member, submitted to the warden and then appealed to the Secretary of Corrections. Therefore, the court finds ...


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