United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE.
matter is before the court on Defendant's motion for
summary judgment. (Docs. 30, 31.) Plaintiff has not responded
to the motion and the time for doing so has now expired. For
the reasons set forth herein, Defendant's motion for
summary judgment (Doc. 30) is GRANTED. Additionally, pending
motions by Defendant to stay discovery (Doc. 32) and by
Plaintiff to suppress statements in a Martinez
report (Doc. 23) are DENIED as moot.
following facts are taken primarily from Defendant's
statement of facts in his memorandum in support of summary
judgment. (Doc. 31.) Defendant has properly supported his
factual statement with citations to the record, including
citations to Defendant's declaration and the affidavit of
registered nurse Barb Addis. (Docs. 31-1, 16-4.) Because
Plaintiff has failed to respond to Defendant's statement,
these facts are deemed admitted for purposes of summary
judgment. D. Kan. R. 56.1(b)(2). See Reed v.
Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (where no
response filed, “[t]he court should accept as true all
material facts asserted and properly supported in the summary
court notes Plaintiff previously filed an affidavit of his
own concerning the relevant incident (Doc. 24) as well as an
affidavit by Peggy Beck. (Doc. 28.) The court will not
consider those materials in determining the uncontroverted
facts for summary judgment, however, because to do so would
effectively make the court Plaintiff's advocate,
searching the record for any relevant facts that might
contradict Defendant's statement and support
Plaintiff's claims. See Hall v. Bellmon, 935
F.3d 1106, 1110 (10th Cir. 1991) (although pro se pleadings
are liberally construed, “we do not believe it is the
proper function of the district court to assume the role of
advocate for the pro se litigant.”)
relevant times, Plaintiff was an inmate who was being housed
at Oswego Correctional Facility (“OCF”) in
Oswego, Kansas, and Defendant was a Correctional Officer I at
was seen by Corizon medical staff at OCF on May 6, 2017,
regarding complaints of difficult and painful urination.
7, 2017, Plaintiff approached the officer's station at
OCF and requested that he be allowed to go to medical for
abdominal pain. Plaintiff did not appear to Defendant to be
experiencing a medical emergency. Defendant called the
Corizon nurse on duty, Dawn Glass, and was informed that
Plaintiff needed to submit a sick call slip.
8, 2017, Plaintiff again approached the officer's station
and requested that he be allowed to go to medical. Defendant
instructed Plaintiff to return to his bunk and to submit a
sick call slip based on the nurse's instructions from the
day before. Plaintiff did not appear to Defendant to be
experiencing a medical emergency. Plaintiff became visibly
angry and started walking away when he noticed behavioral
health provider Peggy Beck walking down the hall. Plaintiff
raised his voice in an attempt to get Beck's attention.
Plaintiff was in an unauthorized area and refused
Defendant's direct orders to return to his bunk.
Plaintiff began to argue with Defendant. Plaintiff began
repeatedly shouting “cuff me up” while moving
backwards toward Defendant. Because Defendant was backed
against a wall and Plaintiff was refusing to comply with his
orders, Defendant called for assistance.
grabbed Plaintiff's left wrist and attempted to place a
handcuff on it. Because Plaintiff was bouncing and moving
around, the handcuff clinched shut on Plaintiff's wrist.
Plaintiff did not cooperate by giving his other hand and
instead began to turn towards Defendant. When Plaintiff did
so, Officer Brown assisted in restraining Plaintiff against
the wall. Plaintiff continued to resist being handcuffed even
after officers were attempting to restrain him against the
did not appear to Defendant to be injured after the
handcuffing incident. Plaintiff was in handcuffs for
approximately 20 minutes after being placed “in the
hole, ” an apparent reference to segregation or an
isolation cell. Plaintiff does not allege actual injuries
from the handcuffs.
was seen by Corizon medical staff on May 8, 2017, regarding
complaints of abdominal pain. Before presenting to the
nurse's visit on May 8, Plaintiff reported he had been in
a verbal confrontation with an officer. Plaintiff did not
complain to the nurse of a physical confrontation or of
excessive use of force. He did not describe any pain in his
left shoulder, elbow, wrist, hand, or fingers during the May
8 nurse's visit.
the policy of the KDOC to medically evaluate inmates after
they make use-of-force complaints against correctional
officers. Had Plaintiff complained of a use of force by
Defendant on May 8, he would have been evaluated by Corizon
10, 2017, Plaintiff was evaluated by Corizon nursing staff
regarding pain to his abdomen. He made no complaints of pain