United States District Court, D. Kansas
MATTHEW T. GARDINER, Plaintiff,
BILL McBRYDE, et al., Defendants.
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
plaintiff Matthew Gardiner brings this civil rights
action asserting 42 U.S.C. § 1983 and state law tort
claims against defendants Bill McBryde, Gene Ward, Rob Gant,
Teresa Cantrell, Clemente Torres, Randolf Graves, Steve
Bailem, Tyler Kulow, Ambrose Gallardo, John
“Trey” Steckel, and the Seward County, Kanas
Board of Commissioners. Plaintiff alleges defendants used
excessive force and deprived him of medical care and thus
violated his rights under the Eighth Amendment to the United
was incarcerated at the Seward County Jail
(“SCJ”) when the events giving rise to this
lawsuit allegedly occurred. Defendants Gant, Cantrell,
Torres, Graves, Bailem, Kulow, Gallardo, and Steckel served
as detention officers at the SCJ. Defendant McBryde was (and
is) the Sheriff and defendant Ward was (and is) the
Undersheriff. Defendants have filed a Motion for Summary
Judgment (Doc. 124). Plaintiff has filed a Response (Doc.
133), and defendants have filed a Reply (Doc. 152). Plaintiff
has filed a Motion for Leave to File Rebuttal to Reply (Doc.
153) which defendants oppose (Doc. 154).
Plaintiff's Motion for Leave to File Rebuttal to
initial matter, the court must decide plaintiff's motion
to file a “rebuttal to reply.” (Doc. 153).
Defendants filed a Response opposing plaintiff's request
(Doc. 154). The court construes plaintiff's request as a
motion to file a surreply.
D. Kan. Rule 7.1(c), briefing on motions is limited to the
motion (with memorandum in support), a response, and a reply.
Surreplies typically are not allowed. Taylor v.
Sebelius, 350 F.Supp.2d 888, 900 (D.Kan. 2004),
aff'd on other grounds, 189 F. App'x. 752
(10th Cir. 2006). Instead, surreplies are permitted only with
leave of court and under “rare circumstances.”
Humphries v. Williams Natural Gas Co., No.
96-4196-SAC, 1998 WL 982903, at *1 (D. Kan. Sept. 23, 1998)
(citations and internal quotation marks omitted). For
example, when a moving party raises new material for the
first time in a reply, the court should give the nonmoving
party an opportunity to respond to that new material (which
includes both new evidence and new legal arguments) in a
surreply. Green v. New Mexico, 420 F.3d 1189, 1196
(10th Cir. 2005); Doebele v. Sprint/United Mgmt.
Co., 342 F.3d 1117, 1139 n.13 (10th Cir. 2003). The
rules governing surreplies “are not only fair and
reasonable, but they assist the court in defining when
briefed matters are finally submitted and in minimizing the
battles over which side should have the last word.”
Humphries, 1998 WL 982903, at *1 (citation and
internal quotation marks omitted).
plaintiff argues that he should get to file a surreply to
address “several of the defendants[']
statements” that “question the authenticity of
documents plaintiff submitted as exhibits” and
“statements . . . made with the sole intent to the
mislead” the court. Doc. 153 at 2. But, plaintiff also
acknowledges that he is not sure if a surreply is
“required, or even allowed.” Id.
Plaintiff did not attach a proposed surreply to his motion.
argue that plaintiff has not asserted that they “raised
new evidence or new arguments in their reply brief.”
Doc. 154 at 1. Defendants also assert that granting
plaintiff's motion would likely require the court to
reschedule the trial. And, as surreplies are
“disfavored, ” the court should deny
court agrees that plaintiff's motion does not seek leave
respond to new material submitted by defendants. Instead,
plaintiff appears to ask the court to grant him another
opportunity to rehash argument that he has already presented
once or could have made in his Response.
contends that defendants question the authenticity of the
exhibits he filed. The court construes plaintiff's
assertion to refer to defendants' statement in their
Reply that plaintiff's Exhibit RRI (Doc. 133-3 at 136)
contained writing that was not there when defendants produced
the policy in discovery. Doc. 152 at 19. But defendants
attached this policy as Exhibit 8 to their Memorandum in
Support. Doc. 125-9. And, plaintiff knew about the
discrepancy between the two exhibits when he filed his
Response. Doc. 133-3 at 51 (“The defendants have chosen
to provide a much more politically correct version to the
court. Compare the plaintiff's Exhibit ‘RRI' to
defendants' Exhibit ‘8'”). This is
precisely why our court typically does not allow surreplies.
See Hall v. Whitacre, No. 06-1240-JTM, 2007 WL
1585960, at *1 (D. Kan. May 31, 2007) (finding “utterly
no justification for the surreply” that
“essentially provides additional and longer arguments,
which also could have been submitted in the first
response”); see also E.E.O.C. v. Int'l Paper
Co., No. 91-2017-L, 1992 WL 370850, at *10 (D. Kan. Oct.
28, 1992) (refusing to consider a surreply because the
parties' briefing “must have an end point and
cannot be allowed to become self-perpetuating”).
also asserts that defendants made misleading statements to
the court. But plaintiff provides no information about which
statements he contends are misleading. Plaintiff has not
shown that leave to file a surreply is necessary to respond
to new material asserted for the first time in
defendants' reply. And, as surreplies are permitted only
in rare circumstances, the court exercises its discretion and
denies plaintiff's Motion for Leave to File Rebuttal to
Reply (Doc. 153).
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. 2000)).
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)).
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).
Motion for Summary Judgment
following facts come from the summary judgment
record-including the Pretrial Order, the Martinez
report,  and properly submitted affidavits and
exhibits-and either are uncontroverted or construed in the
light most favorable to plaintiff.
14, 2014: The Hog-Tying Incident
was incarcerated at SCJ from June 14 to 27, 2014. Doc. 120 at
2. Plaintiff arrived when the day shift was on duty, and the
night shift took over around 7:00 pm. Doc. 125-2 at 2 (¶
5). The night shift consisted of officers Torres, Bailem,
Steckel, and Stallbaumer. Id. (¶ 6). Plaintiff
alleges defendants Torres, Bailem, and Steckel used excessive
force and unconstitutional bodily restraints on him when they
“hog-tied” him during the evening of June 14,
2014. Doc. 133-1 at 25, 26. Defendants concede that genuine
issues of fact exist for plaintiff's claim based on the
hog-tying incident against Torres, Bailem, and Steckel. And,
defendants have not moved for summary judgment against
plaintiff's claims related to the hog-tying incident
against defendants Torres, Bailem, and Steckel. Doc. 125 at
contends he was “slammed to the ground” during
the incident and “feared for his life.” Doc.
133-1 at 25. Plaintiff was “rear cuffed.”
Id. While he was on the ground, defendants Torres,
Bailem, and Steckel “removed either plaintiff's
shorts or a string from his shorts.” Id.; Doc.
133-2 ¶ 46; Doc. 42 ¶ 11; Doc. 43 ¶ 4; Doc. 44
¶ 4. Torres, Bailem, and Steckel then “put
leg-irons on [his] ankles, brought his ankles to his buttocks
and connected the leg-irons to the handcuffs.” Doc.
133-2 ¶ 66; Doc. 42 ¶ 12; Doc. 43 ¶ 6; Doc. 44
¶ 6. Plaintiff was restrained in this manner for about
10 or 20 minutes. Doc. 42 ¶ 13; Doc. 43 ¶ 7; Doc.
44 ¶ 7.
contends that defendants seriously injured him during the
hog-tying incident on June 14 and denied him access to
medical care for 22 hours. Doc. 133-1 at 40, 42. And, though
a “medical officer” was on duty, SCJ policy does
not require the medical officer to have any medical training.
Id. at 41; Doc. 133-3 ¶ 129.
15, 2014: Plaintiff's Emergency Room Visit
time after the shift change on the morning of June 15, 2014,
plaintiff notified the control tower that he needed medical
attention. Doc. 133-2 ¶ 128. Officer Kulow and Sergeant
Cantrell both visited plaintiff to check on him during the
morning. Id. ¶¶ 130, 133. Later, at 4:15
pm, Sergeant Cantrell learned that plaintiff still was
complaining of pain and his skin was hot to the touch. Doc.
125-2 (¶ 8); Doc. 125-4 at 1. Sergeant Cantrell
“phoned Captain Gant to inform him” and Captain
Gant “told [her] to call Southwest Medical Center and
speak to a nurse in the emergency room.” Doc. 125-4 at
1. Sergeant Cantrell did so and spoke with Dr. Chacon about
plaintiff's symptoms. Id. at 2. Based on Dr.
Chacon's instructions, Officer Kulow transported
plaintiff to the emergency room at around 4:30 pm.
Id. Plaintiff arrived at the Southwest Medical
Center Emergency Room around 4:58 pm. Doc. 125-10 at 2.
emergency room, Dr. Chacon examined plaintiff. Id.
Plaintiff complained of pain in his chest wall and ribs that
had started 24 hours earlier, and pain in his left shoulder.
Id. at 2, 6. Plaintiff reported he had been
“beaten senseless.” Id. at 6. Dr.
Chacon's report notes the exam was not limited.
Id. Plaintiff had “no other complaints such as
nausea[, ] vomiting[, ] constipation[, or] diarrhea.”
Id. The exam revealed generally normal
results. Id. Plaintiff's X-rays
suggested a “contusion and probably nondisplaced
fracture” in plaintiff's right tenth rib.
Id. at 16. Plaintiff's shoulder X-rays
“disclose[d] no fracture or dislocation.”
Id. at 17. Dr. Chacon prescribed an antibiotic and
recommended a follow up “with the primary care provider
that cares for inmates.” Id. at 8. Plaintiff
was released from the emergency room at about 7:00 pm on June
15. Id. at 4. Officer Kulow filed a report about the
emergency room visit with Sheriff McBryde, Undersheriff Ward,
Captain Gant, and Sergeant Cantrell. Doc. 125-6. The report
stated that plaintiff “needs to have a follow-up
appointment with our primary care provider within the next
three to five days.” Doc. 125-6 at 1.
contends Officer Kulow “told the ER staff not to
prescribe any pain medication” and “removed [him]
from the E.R. at exactly 7pm when his duty shift
ended.” Doc. 133-1 at 45. Plaintiff also contends
Officer Kulow made a false statement in his report to his
superior officers. The report recited that plaintiff had
“no fractures or breaks to any of his ribs.” Doc.
125-6 at 1. But X-rays had revealed plaintiff had a
“hairline nondisplaced fracture” on his tenth
rib. Doc. 125-10 at 16.
Requests for Medical Care
antibiotic prescription was filled, and he started taking the
medication on June 19, 2014. Plaintiff refused his medication
several times during his imprisonment at SCJ. Doc. 125-7 at
1. Plaintiff never was taken to a follow-up medical
appointment. Doc. 133-2 ¶ 178. Plaintiff does not allege
that he sought follow-up care immediately when he left SCJ on
June 27, 2014.
did not make a written request for follow-up medical
treatment during his stay at SCJ because he did not have a
writing instrument. Doc. 133-2 ¶ 223. Plaintiff contends
he made many verbal requests for care during his stay at SCJ.
Id. ¶¶ 223, 225, 226. And, on several
occasions, plaintiff was given ice for swelling. Id.
¶ 227. Plaintiff asserts that he “still suffers
from injuries he received in the vicious attack, ”
including “chronic pain, ” “swelling,
” and “disfiguring abrasions on his neck and
upper body.” Doc. 133-1 at 46. Plaintiff next sought
medical care for his injuries in June, 2015-more than a year
after the incident. Doc. 133-1 at 48; Doc. 133-2 ¶ 216.
Plaintiff was diagnosed with chronic pain, swelling in his
ear, and chronic pain in his left shoulder. Id.
Failure to Train, Supervise, Discipline, and
Kansas is the county seat for Seward County. Plaintiff
contends “[t]he Liberal, Kansas Police Department
banned the use of hog-tie restraints on December 9,
2008.” Doc. 133-1 at 27. SCJ's policies do not
address hog-tying inmates, but they do advise that leg irons
should be placed “on the leg with the pants leg inside
the cuff . . . .” Doc. 133-2 ¶ 92; Doc. 133-3 at
57. No. defendant has been trained on use of hog-tying in the
SCJ. Doc. 133-2 ¶¶ 88-94. Plaintiff asserts
hog-tying is a “common form of punishment at the
jail” and that Sheriff McBryde, Undersheriff Ward, and
Captain Gant were aware of the practice. Doc. 133-1 at 27;
Doc. 133-2 ¶ 99. Plaintiff asserts Sheriff McBryde,
Undersheriff Ward, and Captain Gant did not punish or
reprimand Officers Torres, Bailem, or Steckel for the June 14
incident. Doc. 133-2 ¶¶ 272-73.
asserts Officers Torres, Bailem, and Steckel violated SCJ
policy because they did not file a “use of force”
report after the June 14 hog-tying incident. Doc. 133-2
¶ 119. And, they did not report his injuries to anyone.
Id. ¶ 122. Also, because no report was filed,
Sheriff McBryde, Undersheriff Ward, or Captain Gant did not
investigate any purported use of force. Id. ¶
120. Although Sheriff McBryde, Undersheriff Ward, and Captain
Gant were notified that plaintiff required medical care on
June 15, they never investigated the incident. Id.
¶¶ 137, 175. And, plaintiff contends, defendants
failed to follow SCJ policy, which requires observation of an
inmate every 15 minutes after force is used against an
inmate. Id. ¶ 126. No. one reprimanded Officers
Torres, Bailem, Steckel, Graves, Gallardo and Kulow, Sergeant