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Evans v. Cawthorn

United States District Court, D. Kansas

November 6, 2019

ZABRIEL L. EVANS, Plaintiff,
v.
JOHNNIE CAWTHORN, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         Pro se plaintiff[1] 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 Constitution.

         Plaintiff 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).[2] Defendants have filed a Response (Doc. 96) to his motion.

         I. Procedural Background

         Plaintiff 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.[3] Doc. 8. KDOC filed the Martinez report on September 15, 2017 (Doc. 22) and an Amended Martinez report on December 14, 2017 (Doc. 45).

         Defendants 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.[4] 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.

         On 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).[5]Defendants filed a Response (Doc. 96).

         II. Summary Judgment Standard

         Summary 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)).

         The 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. 2000)).

         If the 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)).

         The 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).

         Summary 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).

         III. Motions for Summary Judgment

         A. Uncontroverted Facts

         Plaintiff 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, [6] and properly submitted affidavits and exhibits-and are either uncontroverted or construed in the light most favorable to plaintiff.[7]

         1. March 1, 2016 Incident

         On 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).

         Since 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.”[8]Doc. 88-1 at 14 (¶ 6-7). Plaintiff's only request was that he receive his meal tray.[9] Doc. 88-1 (¶ 7).

         Officer 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 (¶ 9).

         Plaintiff's affidavit asserts that Officers Austin and Wallace refused to give him a shower and would not “cut the water on” in his cell.[10] 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.[11] Id. (¶ 11).

         2. March 5, 2016 Incident

         On 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.”[12] 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 ...


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