United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE.
Brian Michael Waterman moves the court to reconsider (Doc.
125) its earlier ruling on the motion to dismiss brought by
various defendants. (Doc. 97.) Plaintiff is currently
incarcerated at the Sedgwick County Jail; however, his
complaint focuses on his earlier experiences as a pretrial
detainee at the Cherokee County Jail in Columbus. In his
amended complaint (Doc. 53), plaintiff set forth five counts
against eight defendants, seeking $850, 000 in damages.
Following the analysis of several motions to dismiss for
failure to state a claim (Doc. 93, 95, 97), the court
narrowed these claims down to three, with four defendants.
(Docs. 121, 122). The remaining counts include:
II: against defendant captain Michelle Tippee and defendant
disciplinary officer Thomas DeGroot, in their individual
capacities only, for three separate incidents where plaintiff
was placed in segregation, allegedly as punishment and
without any disciplinary proceeding;
III: against defendant nurse Kristin Wagner and defendant
kitchen supervisor Danny Davis for providing plaintiff with
insufficient food such that he sustained a thirty-pound
weight loss during his confinement, and experienced
significant physical pain; and
V: against defendant nurse Wagner for withholding or
postponing treatment of plaintiff's staph infection for
eight to nine days after it was diagnosed.
has filed the present motion to reconsider the dismissal of
Counts I and IV. As no judgment has entered in this matter,
the court, at its discretion, may reconsider its earlier
order. Trujillo v. Bd. of Educ. of Albuquerque Public
Schools, 470 F.Supp.2d 1270, 1274 (D.N.M. 2005) (citing
Raytheon Constructors, Inc. v. Ascarco, Inc., 368
F.3d 1214, 1217 (10th Cir. 2003)); see also Fed.R.Civ.P.
contested counts are claims against jail employees for
incidents of excessive force, which the court dismissed based
on the doctrine of qualified immunity. Count I alleges that
defendant jail employee Ayrek Smith shoved plaintiff into his
cell from behind, while he was stooping to adjust his shoe.
This action hurt plaintiff's neck. In support of their
motion to dismiss, defendants proffered video footage of this
incident; however, because plaintiff contested the
authenticity of the video, the court did not consider it.
Instead the court only considered the factual allegations set
forth in plaintiff's amended complaint, assuming them to
be true, as is required when reviewing a motion to dismiss
under Fed.R.Civ.P. 12(b)(6). Nevertheless, the court
concluded that, even if the event unfolded precisely as
plaintiff recounted, defendant Smith is protected by the
doctrine of qualified immunity because there is no case law
that clearly establishes that a bare-handed push to an
apparently non-compliant prisoner violates the constitution.
(Doc. 122, at 9.) See Scott v. City of Albuquerque,
711 Fed.Appx. 871, 880 (10th Cir. 2017). In his motion to
reconsider, plaintiff points out that defendant Smith's
culpability is revealed by the fact that he was fired from
his employment at the jail after this incident and by the
fact that he did not submit a sworn affidavit as did the
other defendant officers. Moreover, defendants have further
tried to conceal the truth by fraudulently replacing the
surveillance video, and its soundtrack, with a filmed
reconstruction of the episode featuring an officer in an
orange jumpsuit masquerading as plaintiff. None of
plaintiff's allegations change the court's initial
decision that defendant Smith is entitled to qualified
immunity for his actions and that Count I must be dismissed.
IV, against defendant DeGroot, involves an incident when
plaintiff was handcuffed too tightly, causing a bruised
wrist. When plaintiff refused to allow his second wrist to be
cuffed, defendant DeGroot allegedly yanked him by one cuff,
causing plaintiff to stumble and scrape his knee. As with
Count I, the court concluded that defendant DeGroot was
entitled to qualified immunity for this incident, as it was
not a violation of a clearly-established constitutional
right. (Doc. 122, at 9.) In his motion for reconsideration,
plaintiff alleges that securing handcuffs too tightly is a
violation of jail policy. He also alleges that the video
depicting this episode was altered, and that he was not
provided with a copy of a report describing this incident.
Again, none of these allegations change the court's
earlier conclusion that defendant DeGroot is entitled to
qualified immunity for this excessive force claim, and that
Count IV must be dismissed.
IS THEREFORE ORDERED that plaintiff's motion to
reconsider the dismissal of Counts I and IV from his ...