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Gardiner v. McBride

United States District Court, D. Kansas

January 3, 2020

MATTHEW T. GARDINER, Plaintiff,
v.
BILL McBRYDE, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge

         Pro se plaintiff[1] 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 States Constitution.

         Plaintiff 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).

         I. Plaintiff's Motion for Leave to File Rebuttal to Reply

         As an 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.

         Under 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).

         Here, 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.

         Defendants 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 plaintiff's motion.

         The 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.

         Plaintiff 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”).

         Plaintiff 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).[2]

         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)).

         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. Motion for Summary Judgment

         A. Uncontroverted Facts

         The following facts come from the summary judgment record-including the Pretrial Order, the Martinez report, [3] and properly submitted affidavits and exhibits-and either are uncontroverted or construed in the light most favorable to plaintiff.[4]

         June 14, 2014: The Hog-Tying Incident

         Plaintiff 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 5.

         Plaintiff 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.

         Plaintiff 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.

         June 15, 2014: Plaintiff's Emergency Room Visit

         Some 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.

         At the 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.[5] The exam revealed generally normal results.[6] 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.

         Plaintiff 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.[7]

         Other Requests for Medical Care

         Plaintiff's 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.[8] Plaintiff does not allege that he sought follow-up care immediately when he left SCJ on June 27, 2014.

         Plaintiff 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.

         Alleged Failure to Train, Supervise, Discipline, and Investigate.

         Liberal, 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.[9] SCJ's policies[10] 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.[11] 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.[12]

         Plaintiff 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. ΒΆ 126. No. one reprimanded Officers Torres, Bailem, Steckel, Graves, Gallardo and Kulow, Sergeant ...


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