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Grissom v. Palm

United States District Court, D. Kansas

December 13, 2019

ANDREW J. PALM, et al., Defendants.



         Plaintiff Richard Grissom is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why his claim in Count V against Defendants Link, Randolph and Fuoss, should not be dismissed for failure to state a claim. The Kansas Department of Corrections is directed to prepare a Martinez Report for Plaintiff's remaining claims.

         1. Nature of the Matter before the Court

         Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this civil rights complaint pursuant to 42 U.S.C. § 1983. Although Plaintiff is currently incarcerated at the Hutchinson Correctional Facility in Hutchinson, Kansas (“HCF”), the events giving rise to his Complaint occurred during his incarceration at the El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”).

         Plaintiff alleges excessive force and retaliation stemming from an altercation with Defendant Palm on November 25, 2017. The incident occurred when Defendant Palm asked Plaintiff to bring him a bag of cedar Plaintiff was carrying in preparation for a Pipe and Drum ceremony. An altercation ensued after Plaintiff asked Palm to call Captain Mansfield regarding his approval to possess the bag, and Palm's improper handling of the medicine bag in violation of regulations with his “unclean and non purified hands.” When Plaintiff asked again to go to the Captain's Office, Palm responded that if he wanted to see the Caption he should “turn around and cuff up.” A physical altercation then ensued after Palm attempted to cuff Plaintiff with a single pair of regular-sized black hinged cuffs despite Plaintiff's protests that he needed previously-approved large, extra-length cuffs. Palm stated that he would take Plaintiff's actions as a refusal, and called over the radio for an emergency code for “Officer needs assistance.” Plaintiff alleges that Defendant Loewen and the other officers responding to the incident did not intervene to stop Palm from attacking Plaintiff.

         Plaintiff alleges that he was approved by medical and the “Seg Lieutenant” for the use of two sets of large cuffs due to his large wrists and shoulder injury. Later the facility purchased a set of “large extra length” cuffs that had a six-inch chain in the middle connecting the cuffs together to replace having to use two sets of large cuffs. A magnetic sign was affixed to Plaintiff's metal door stating in bold black letters “large extra length” to ensure that all officers utilized the correct cuffs when restraining Plaintiff. Plaintiff alleges that Defendant Palm was well aware of Plaintiff's restrictions and had cuffed Plaintiff over 200 times using the extra-large length cuffs or two sets of large cuffs.

         Plaintiff alleges that on December 8, 2017, he was issued a disciplinary report written by Defendant Link, the property officer, for dangerous contraband due to items discovered with Plaintiff's property that did not belong to Plaintiff. Plaintiff alleges that his property was not properly inventoried, and that he was transferred to HCF before he was given an opportunity to go through his property. Plaintiff alleges that over $10, 000 worth of his property was destroyed.

         Plaintiff alleges that his transfer to HCF long term ad seg after the incident was retaliatory. Plaintiff alleges that Schnurr knew the transfer would limit Plaintiff's ability to talk to his wife and attorneys regarding potential litigation regarding the excessive force incident. Plaintiff also alleges that the transfer was ordered before Plaintiff received a hearing regarding the incident and after Plaintiff filed a personal injury claim naming Schnurr as a defendant.

         Plaintiff names as Defendants: Andrew J. Palm, Officer in Charge and First Sergeant at EDCF; Daniel Schnurr, Former Warden at EDCF; Maria Bos, Classification Administrator at EDCF; Dustin Randolph, Unit Team Manager at EDCF; Andrew Fuoss, Unit Team at EDCF; Patrick Mansfield, Captain and Shift Supervisor at EDCF; Jessica Link, Sergeant in Charge of the Property Room at EDCF; Abraham Loewen, Corporal and Second Officer at EDCF; and (fnu) (lnu) Officer at EDCF. Plaintiff seeks to expunge his disciplinary conviction regarding the November 25, 2017 incident, [1] and compensatory and punitive damages.

         As Count I, Plaintiff alleges that Defendant Palm was deliberately indifferent in violation of the Eighth Amendment and his liberty interests when he intentionally twisted Plaintiff's wrist into a single pair of regular-sized cuffs with excessive force and in bad faith. Plaintiff alleges that medical and the Seg. Lieutenant had previously approved him for use of large, extra-length cuffs or two sets of large cuffs, and Palm was well aware of Plaintiff's medically-approved needs from restraining him over 200 times in the past couple of years. Plaintiff alleges that Defendant Palm refused Plaintiff's requests for longer cuffs; stated that he would “make them fit”; and forcibly twisted Plaintiff's left wrist into a single pair of regular-sized cuffs after two other attempts caused instant pain and injury. Plaintiff alleges that he was not being disrespectful, and that a second officer witnessed this incident.

         As Count II, Plaintiff alleges that Palm violated the Eighth Amendment and committed assault and battery under Kansas law when he used excessive force in an unprovoked attack on Plaintiff using metal handcuffs and a metal mace can as weapons. Plaintiff alleges that Palm struck Plaintiff in the back and head several times with metal cuffs, wielding them like brass knuckles. Plaintiff alleges that this attack was done after Plaintiff had retreated into his cell to avoid physical contact by Palm. Plaintiff alleges that during this attack, he was struck repeatedly in the head by the bottom of Palm's metal mace can. Plaintiff alleges that he received numerous lacerations and bruises on his neck, back, hands, face and head.

         As Count III, Plaintiff alleges that Defendants Loewen and (fnu) (lnu) Officer violated the Eighth Amendment when they responded to the November 25, 2017 incident and failed to intervene or prevent the excessive force attack by Palm. Plaintiff alleges that Loewen was the second officer in the cellhouse and stood within arm's reach just outside of Plaintiff's cell door. Plaintiff alleges that during the entire attack on Plaintiff, Defendant Loewen and the other officer responded to the code and did not intervene to stop the attack or to protect Plaintiff.

         As Count IV, Plaintiff alleges that Defendants Mansfield and Schnurr violated the Eighth Amendment when they failed as supervisors to take disciplinary or other actions to curb the known pattern of physical abuse and abuse of discretion by Palm against inmates. Plaintiff alleges that numerous grievances and complaints were filed against Defendant Palm prior to the incident at issue, and Palm was reassigned to a different post a week before the incident because of a riot that almost erupted in Plaintiff's cellhouse due to Palm's abuse of discretion. Plaintiff alleges that despite the complaints and reassignment, Defendants Mansfield and Schnurr allowed Palm to continue his abuse by reassigning him back to Plaintiff's cellhouse on November 25, 2017.

         In Count V, Plaintiff alleges that Defendants Link, Randolph, and Fuoss knowingly, willfully, and intentionally destroyed Plaintiff's personal property without due process in violation of the Fourteenth Amendment and his liberty interest. Plaintiff alleges that his Property Inventory Sheets did not have the correct date when his property was supposedly inventoried, and there were at least three different handwriting styles on it but no signature of those responsible for the accuracy. Plaintiff alleges that other inmates informed him that they witnessed officers throwing Plaintiff's property in the trash, but they retrieved it and took it to the Captain's Office. Plaintiff was found not guilty when Defendant Link issued a disciplinary report against Plaintiff over property issues. On January 8, 2018, Defendant Randolph ordered Defendant Link to refrain from destroying Plaintiff's three boxes of stored property in the near future to afford Plaintiff an opportunity to exchange and go through his property. Defendants Randolph and Fuoss failed to retrieve Plaintiff's stored property and transferred him to a different facility three weeks later on January 29, 2018. On April 21, 2018, Plaintiff was informed by HCF Unit Team Pettijohn that Plaintiff's property had been destroyed by EDCF.

         In Count VI, Plaintiff alleges that Defendants Bos, Randolph, Fuoss and Schnurr violated the First Amendment when they retaliated against Plaintiff in response to Plaintiff's 2015 lawsuit, grievances, and a Personal Injury Claim filed against EDCF administration and staff. Plaintiff alleges that during seg review on January 8, 2018, Randolph informed Plaintiff that Randolph and the seg review board were recommending a transfer of Plaintiff to “general population” in a different facility to avoid possible reprisals by EDCF staff. Plaintiff alleges that there was no mention of him being placed in long term ad seg.

         On January 19, 2018, Defendant Fuoss angrily informed Plaintiff that he was guilty of battering Defendant Palm, that he would have his disciplinary hearing, would be transferred to long term ad seg, and that he had discussed this with the Deputy Warden to ensure this would happen. On January 25, 2018, Defendant Bos, who was also a defendant in the 2015 lawsuit against EDCF staff for unjustified confinement of over twenty years in ad seg, also issued a report reiterating Fuoss's report. Defendant Bos denied Plaintiff's request a year earlier to be transferred away from EDCF because she felt that they would return Plaintiff to long term ad seg at their first opportunity. Unit Team Hoover agreed with Plaintiff's request. Plaintiff alleges that Defendant Schnurr was aware that Plaintiff had filed a lawsuit in 2015, a grievance and a Personal Injury Claim on November 28, 2017, that named him as a defendant, and that Plaintiff's wife indicated her intention to sue him over the November 25, 2017 incident. Plaintiff also alleges that Schnurr, along with the other defendants, approved and transferred Plaintiff to long term ad seg at HCF prior to Plaintiff receiving a hearing or being found guilty of any wrongdoing. Plaintiff also alleges that Schnurr knew that the transfer would restrict Plaintiff's ability to talk with his attorneys and his wife regarding this lawsuit.

         II. Statutory Screening of ...

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