Birdine v. Gray, 4:03CV3024.

• Decision Date: 05 July 2005
• Docket Number: No. 4:03CV3024.,4:03CV3024.
• Citation: 375 F.Supp.2d 874
• Parties: Cullen W. BIRDINE, Plaintiff, v. Rick GRAY and Tami Bales, now known as Tami Waddel, Defendants.
• Court: U.S. District Court — District of Nebraska

375 F.Supp.2d 874

Cullen W. BIRDINE, Plaintiff, v. Rick GRAY and Tami Bales, now known as Tami Waddel, Defendants.

No. 4:03CV3024.

United States District Court, D. Nebraska.

July 5, 2005.

Cullen W. Birdine, Omaha, NE, Pro Se.

Michael E. Thew, Lancaster County Attorney's Office, Lincoln, NE, for Defense Counsel.

MEMORANDUM AND ORDER

KOPF, District Judge.

Pursuant to 42 U.S.C. § 1983, Cullen W. Birdine (Birdine) sued Rick Gray (Gray) and Tami Bales, now known as Tami Waddel (Waddel). Birdine claims that Gray and Waddel violated his constitutional rights as a pretrial detainee when, while serving as correctional officers at the Lancaster County, Nebraska, jail, they transported him naked from one cell to another, kept him naked, and used excessive force to restrain him.

Following a non-jury trial where Birdine appeared pro se (without counsel), I now issue my findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a). In general, I decide that Birdine's constitutional rights were not violated.

I. Background

Based upon the testimony and documentary evidence presented at trial, I find the material facts to be these:

1. At all times pertinent hereto Plaintiff was incarcerated at the Lancaster County Jail as a pretrial detainee.

2. At all times pertinent hereto defendant Rick Gray was employed as a Lieutenant by the Lancaster County Department of Corrections and acted within the scope and course of his employment and under color of state law.

3. At all times pertinent hereto defendant Tami Bales, now known as Tami Waddel, was employed as a correctional officer by the Lancaster County Department of Corrections and acted within the scope and course of her employment and under color of state law.

4. On August 22, 2000, Plaintiff was lodged in cell HAA24C in the A2 living unit of the jail. When officers reported for duty on the third shift (11 p.m. to 7 a.m.) they were informed by officers from the second shift (3 p.m. to 11 p.m.) that during second shift Plaintiff had repeatedly covered the window in his cell with toilet paper and/or pillow cases. Such conduct was prohibited by facility rules and regulations and staff had informed Plaintiff of that fact on each of the occasions that the window was covered. When an inmate covers his windows, the safety and security of the inmate and the facility are compromised because the correctional staff cannot monitor what the inmate is doing. Even then, an inmate in the Lancaster County Jail enjoys a certain degree of bodily privacy as a result of the construction of a four-foot wall adjacent to the toilet.

5. At approximately 11:40 p.m. on August 22, 2000, Lieutenant Gray, who was the shift supervisor for third shift, was informed that Plaintiff had again covered the window in his cell, using his towels, and that he was refusing officers' directions to remove the towels. In response to that information, Lieutenant Gray decided to move Plaintiff from his cell in the A2 living unit to a cell in the holding area of the jail so that staff could supervise him on a continuous basis. The holding cell was in the holding and booking area and it was immediately adjacent to where correctional officers were stationed. Thus, a correctional officer in the holding area could also monitor the holding cell on a more or less continuous basis. On the evening in question, Waddel was assigned to that area.

6. Lieutenant Gray and Officers Steve Smith and Michael Gibson proceeded to Plaintiff's A-2 living unit cell. Lieutenant Gray opened the food hatch and looked into the cell, but could see nothing. He reached into the food hatch and removed the towels that were blocking the window in the cell door. At that time he could observe Plaintiff lying on his bunk in a pair of boxer shorts and shoes. He ordered Plaintiff to come to the door, but he refused. At that time the officers opened the door, proceeded into the cell, and directed Plaintiff to stand up. Lieutenant Gray placed handcuffs on Plaintiff and offered him an opportunity to put pants on, but he refused. As the officers began escorting Plaintiff out of his cell, he attempted to kick off his boxer shorts. Lieutenant Gray directed him not to do so, but he continued his efforts until he was successful. As a result, Plaintiff was naked except for shoes. Despite that fact, the officers proceeded with the transfer and ultimately placed Plaintiff in cell 11 in the holding area of the jail. Birdine was moved to the holding area of the jail via a secure elevator. When he was naked, there is no credible evidence that he was exposed to other inmates, other guards, or civilians during the transportation. If he was exposed, the exposure was fleeting.

7. Upon reaching cell 11 in the holding area, Lieutenant Gray removed Plaintiff's shoes and took them to the adjacent booking desk to secure them. As he was doing that, the remaining officers began removing the handcuffs from Plaintiff.¹ As the officers tried to remove the handcuffs, Birdine began physically resisting them.² In order to gain control of the plaintiff, the officers wrestled Birdine to the floor, where he continued to struggle. Lieutenant Gray reentered the cell and instructed the plaintiff to quit resisting. When he refused, Lieutenant Gray applied a hand-held electronic restraining device³ to Plaintiff's back. That enabled the officers to gain some control of the plaintiff's arms and legs. However, he continued to struggle. At that time Officer Waddel, who was stationed in the adjacent booking area and who had heard the struggle, entered the cell and again instructed the plaintiff to quit resisting the officers. Again he refused, and Officer Waddel applied another electronic restraining device to Plaintiff's shoulder and upper back area and possibly to his legs. At that time, Birdine complied with the commands to quit resisting and the officers successfully removed the cuffs and safely exited the cell.

8. Both Gray and Waddel have received training⁴ about the proper use of force and, in particular, about the use of "stun" devices. In fact, Gray is an instructor who teaches other correctional officers how to properly use these devices. Gray has been "shocked" numerous times both as a teacher and a trainee so that he could experience and explain what it felt like to be the recipient of this type of force. Waddel, too, has been "shocked" as a part of her training. According to Gray, whom I believe,⁵ the devices do not cause undue pain or burns. In fact, the devices do not cause any injury other than an occasional insignificant friction abrasion that fades away. According to the training materials, the use of these devices on Birdine's back and legs was safe and appropriate. Indeed, the use of these devices is preferable to other types of force such as "soft empty hand control" or "hard empty hand control." Simply put, it is normally safer to "shock" than to "strike" an inmate when the inmate engages in behavior similar to that exhibited by Birdine.

9. Almost immediately after the officers exited the cell in the holding area, the plaintiff began creating a disturbance by kicking and banging on the door, the walls, and the window. Plaintiff was also observed attempting to jump up and punch out the light fixture in the ceiling of the cell. This concerned Gray since an unlighted cell would pose a danger to Birdine and the correctional officers. Moreover, Birdine might harm himself if he destroyed the light fixture or he might be able to fashion a weapon from the remnants of the fixture. Lieutenant Gray opened the food hatch to the cell and instructed Plaintiff to place his hands through the hatch. He refused. Lieutenant Gray then instructed the plaintiff to lie on the floor in the cell. Plaintiff likewise refused that order. Lieutenant Gray concluded that the best available alternative to deal with the situation was to enter the cell and restrain the plaintiff. Accordingly, he obtained an electronic restraint shield,⁶ ordered the cell door opened, and proceeded into the cell toward the plaintiff with the shield activated. When Birdine attempted to punch Lieutenant Gray, the officer applied the activated shield to the plaintiff, forcing him to the floor. That enabled the other officers to place handcuffs and shackles on the plaintiff.

10. After Birdine was handcuffed and shackled, he was placed in a restraint chair.⁷ After he was placed in the chair, the handcuffs and shackles were removed. The restraint chair is a padded, metal-framed chair with arm rests, a foot rest, and a seat and back rest that are tilted backwards slightly so that the subject is seated therein in a slightly reclining position. The chair is equipped with straps to secure the subject's shoulders, waist, arms, and legs so that the torso and extremities are immobilized. After the plaintiff was placed in the restraint chair, he continued to struggle, causing the chair to move around the cell. To avoid injury to the plaintiff, the staff secured the chair to a floor drain in the floor of the cell. After being placed in the chair, the staff continuously monitored the plaintiff's condition and his status, including the fit of the restraints. They also kept a written log of their observations and actions.⁸ On a number of occasions, articles of clothing were placed in his lap, and on each occasion he knocked them off. A nurse also observed Birdine. After about four hours, and at about 4:30 a.m., the superintendent of the facility was called as required by jail policy and he approved the continued use of restraint chair. The staff also made periodic attempts to determine whether the plaintiff was sufficiently under control to be released from the restraint chair, but Birdine refused to state that he would be compliant. Ultimately, at approximately 9:50 a.m. on August 23, 2000, Birdine ceased his resistance, was released from the chair, and provided with clothing.

11. The force...