United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE
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.
Facts and Procedural History
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
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.)
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.)
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. (Doc. 19, p. 2). Goad stated that
Plaintiff barely bent his knees during the strip search.
(Doc. 19 at 2.)
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.)
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.
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.)
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. 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).
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.)
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.)
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.)
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.
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
Summary Judgment Standards
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).
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)).
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.
move for summary judgment on all claims. The arguments will
be addressed in turn.
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).
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.
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. 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 ...