United States District Court, D. Kansas
ZABRIEL L. EVANS, Plaintiff,
JOHNNIE CAWTHORN, et al., Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
plaintiff Zabriel Evans brings this civil rights
action under 42 U.S.C. § 1983. He alleges that
defendants Johnnie Cawthorn, Cody Austin, Robert Wallace, and
Heather Griffith used excessive force and thus violated his
rights under the Eighth Amendment to the United States
was incarcerated at El Dorado Correctional Facility
(“EDCF”) in Butler County, Kansas, when the
events giving rise to this lawsuit allegedly occurred.
Defendants worked as security officers at the facility.
Defendants have filed a Motion for Summary Judgment (Doc.
81). Plaintiff has filed a Response (Doc. 88) and defendants
have filed a Reply (Doc. 91). Plaintiff also has filed a
Motion for Summary Judgment (Doc. 93). Defendants have
filed a Response (Doc. 96) to his motion.
filed his Complaint on May 3, 2016. Doc. 1. It alleges §
1983 claims against Johnnie Cawthorn, Cody Austin, Robert
Wallace, and Heather Griffith in their individual capacities.
On March 31, 2017, the court ordered the Kansas Department of
Corrections (“KDOC”) to prepare a
Martinez report. Doc. 8. KDOC filed the
Martinez report on September 15, 2017 (Doc. 22) and
an Amended Martinez report on December 14, 2017
moved for dismissal under Rule 12(b)(6). Doc. 46. On June 20,
2018, the court granted defendants' Amended Motion to
Dismiss in part and denied it in part. Doc. 52. The court
granted defendants' motion on the excessive force claim
based on plaintiff's alleged wrist injuries. And the
court granted the defendants' motion on plaintiff's
constitutionally deficient medical care claim. Also, the
court dismissed plaintiff's injunctive relief claim as
moot. But the court denied defendants'
motion as it applied to plaintiff's excessive force claim
relying on his injuries allegedly arising from
defendants' use of pepper spray. This excessive force
claim is thus the only remaining claim in the case.
March 1, 2019, defendants filed a Motion for Summary
Judgment. Doc. 81. In accordance with D. Kan. Rule 56.1(f),
defendants sent plaintiff a “Notice to Pro Se Litigant
Who Opposes a Summary Judgment Motion.” Doc. 83. This
notice advised plaintiff that he “may not oppose
summary judgment simply by relying upon the allegations in
[his] complaint. Rather, [he] must submit evidence, such as
witness statements or documents, countering the facts
asserted by the defendants and raising specific facts that
support [his] claim.” Id. at 1. Also,
consistent with our local rules, defendants attached to their
Notice the full texts of the rules governing summary
judgment: Fed.R.Civ.P. 56 and D. Kan. Rule 56.1. Id.
at 3-5. Plaintiff filed a Response (Doc. 88) with 11 exhibits
supporting his claim (Doc. 88-1). Defendants filed a Reply
(Doc. 91). Plaintiff then filed his own Motion for Summary
Judgment (Doc. 93).Defendants filed a Response (Doc. 96).
Summary Judgment Standard
judgment is appropriate if the moving party demonstrates that
“no genuine dispute” exists about “any
material fact” and that it is “entitled to a
judgment as a matter of law.” Fed.R.Civ.P. 56(a). When
it applies this standard, the court views the evidence and
draws inferences in the light most favorable to the
non-moving party. Nahno-Lopez v. Houser, 625 F.3d
1279, 1283 (10th Cir. 2010). “An issue of fact is
‘genuine' ‘if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party' on the issue.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). “An issue of fact is ‘material'
‘if under the substantive law it is essential to the
proper disposition of the claim' or defense.”
Id. (quoting Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
moving party bears “both the initial burden of
production on a motion for summary judgment and the burden of
establishing that summary judgment is appropriate as a matter
of law.” Kannady v. City of Kiowa, 590 F.3d
1161, 1169 (10th Cir. 2010) (citing Trainor v. Apollo
Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir.
2002)). To meet this burden, the moving party “need not
negate the non-movant's claim, but need only point to an
absence of evidence to support the non-movant's
claim.” Id. (citing Sigmon v.
CommunityCare HMO, Inc., 234 F.3d 1121, 1125 (10th Cir.
moving party satisfies its initial burden, the non-moving
party “may not rest on its pleadings, but must bring
forward specific facts showing a genuine issue for trial [on]
those dispositive matters for which it carries the burden of
proof.” Id. (quoting Jenkins v. Wood,
81 F.3d 988, 990 (10th Cir. 1996)); accord Celotex Corp.
v. Catrett, 477 U.S. 317, 324 (1986); Anderson,
477 U.S. at 248-49. “To accomplish this, the facts must
be identified by reference to affidavits, deposition
transcripts, or specific exhibits incorporated
therein.” Adler, 144 F.3d at 670 (citing
Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d
1022, 1024 (10th Cir. 1992)).
court applies this same standard when parties file
cross-motions for summary judgment. Each movant bears the
burden of establishing that, for purposes of its motion, no
genuine issue of material fact exists and it is entitled, as
a matter of law, to the judgment sought by its motion.
Atl. Richfield Co. v. Farm Credit Bank of Wichita,
226 F.3d 1138, 1148 (10th Cir. 2000). Cross-motions for
summary judgment “are to be treated separately; the
denial of one does not require the grant of another.”
Buell Cabinet Co., Inc. v. Sudduth, 608 F.2d 431,
433 (10th Cir. 1979). But where cross-motions overlap, the
court may address the legal arguments together. Berges v.
Standard Ins. Co., 704 F.Supp.2d 1149, 1155 (D. Kan.
2010) (citation omitted).
judgment is not a “disfavored procedural
shortcut.” Celotex, 477 U.S. at 327. Instead,
it is an important procedure “designed ‘to secure
the just, speedy and inexpensive determination of every
action.'” Id. (quoting Fed.R.Civ.P. 1).
Motions for Summary Judgment
has been an inmate in KDOC custody since July 12, 2005. Doc.
82-2 at 1. In March 2016-the time of the incidents at issue
here-KDOC housed plaintiff as its prison near El Dorado,
Kansas. Id. at 2. Since July 2014, KDOC has issued
disciplinary reports to plainitff for battery (12 times),
interfering with restraints (five times), and disobeying
orders (29 times). Id. at 3-8. The following facts
come from the summary judgment record-including the
Complaint, the Martinez report,  and properly
submitted affidavits and exhibits-and are either
uncontroverted or construed in the light most favorable to
March 1, 2016 Incident
March 1, 2016, Officer Robert Wallace didn't provide
plaintiff his dinner tray because plaintiff had covered his
cell window for privacy. Doc. 88-1 at 13 (¶ 2). When
plaintiff realized that Officer Wallace had skipped his cell,
he called him to his cell door and asked for his meal.
Id. at (¶ 3). Officer Wallace refused to give
plaintiff his meal, and wouldn't call the captain/shift
supervisor as plaintiff asked. Id. at (¶¶
3, 4). Plaintiff then signaled a medical emergency so that he
could speak to a captain. Doc. 88 at 4; Doc. 88-1 (¶ 5).
plaintiff had signaled a medical emergency, officers began
placing him in restraints to perform a medical assessment.
Doc. 82-4 at 1 (¶ 3); Doc. 82-5 at 1 (¶ 5). Officer
Wallace applied one of the restraints to plaintiff's left
wrist. Doc. 82-4 at 1 (¶ 3). Plaintiff then turned
toward his cell door to try to talk to Officer Wallace about
his meal tray, but “there were no threats made nor were
there any attempts of violence or resistance towards Officer
Wallace.”Doc. 88-1 at 14 (¶ 6-7).
Plaintiff's only request was that he receive his meal
tray. Doc. 88-1 (¶ 7).
Wallace called over the radio for Officer Cody Austin, who
responded to plaintiff's cell. Doc. 88-1 (¶ 8); Doc.
82-6 (¶ 3). Officer Wallace instructed Officer Austin to
“[s]pray him!” while Officer Wallace held
plaintiff in front of his cell door. Doc. 88-1 (¶ 9).
Officer Austin first sprayed plaintiff through the food pass,
and then reached his arm into the cell and “sprayed
[plaintiff] in the face and upper body several times . . .
without warning or attempt at resolution.” Doc. 88-1
affidavit asserts that Officers Austin and Wallace refused to
give him a shower and would not “cut the water
on” in his cell. Doc. 88-1 at 14 (¶ 10).
Plaintiff's affidavit also asserts he never refused a
medical assessment. Doc. 88-1 (¶ 12). And
plaintiff's affidavit asserts officers refused him a
change of clothing. Id. (¶ 11).
March 5, 2016 Incident
March 5, 2016, plaintiff made another call for a medical
assessment. Doc. 82-9 (¶ 3); Doc. 82-10 (¶ 3).
Officers Cawthorn and Griffith responded. Id.
Officer Cawthorn applied one of the restraints to
plaintiff's left wrist. Doc. 82-9 (¶ 5). Plaintiff
then turned around “to see what the issue was”
because Officer Griffith was tugging at the tether attached
to the restraints. Doc. 88-1 (¶¶ 15-17).
Plaintiff's wrist was stuck at the top of the food pass,
so plaintiff used his “free hand to pull and get [his]
wrist free from the top of the food pass so that [he] could
stop the pain and also show [his] compliance by sticking
[his] whole arm out of [the] food pass.” Doc. 88-1 at
15 (¶ 18). Plaintiff pulled on the restraints “to
release some of the pressure of them pulling” and
“had no choice but to take [his] other hand ...