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Miller v. Billman

United States District Court, D. Kansas

May 20, 2019

JAMES LEON MILLER, Plaintiff,
v.
LARRY BILLMAN, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Facts

         The 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.[1] (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).[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 judgment motion.”)

         The 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.”)

         At all 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 OCF.

         Plaintiff was seen by Corizon medical staff at OCF on May 6, 2017, regarding complaints of difficult and painful urination.

         On May 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.

         On May 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.

         Defendant 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 wall.

         Plaintiff 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.

         Plaintiff 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.

         It is 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 nursing staff.

         On May 10, 2017, Plaintiff was evaluated by Corizon nursing staff regarding pain to his abdomen. He made no complaints of pain in ...


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