Smith v. Cummings

• Decision Date: 24 April 2006
• Docket Number: No. 05-3262.,No. 05-3180.,05-3180.,05-3262.
• Citation: 445 F.3d 1254
• Parties: Todd Carlton SMITH, also known as Shameka Shemae Shamya, Plaintiff-Appellant, v. William CUMMINGS, Kansas Department of Corrections, in his official and individual capacity; Ray Roberts, Kansas Department of Corrections, in his official and individual capacity; Don Thomas, Kansas Department of Corrections, in his official and individual capacity; E.L. Rice, Kansas Department of Corrections, in his official and individual capacity; John Doe, as discovery may provide, in his official and individual capacity; Jane Doe, as discovery may provide, in her official and individual capacity; Steven Lafrinere, CO-I, Defendants-Appellees. Todd Carlton Smith, also known as Shameka Shemae Shamya, Plaintiff-Appellant, v. William Cummings, Kansas Department of Corrections, in his official and individual capacity; Ray Roberts, Kansas Department of Corrections, in his official and individual capacity; Don Thomas, Kansas Department of Corrections, in his official and individual capacity; E.L. Rice, Kansas Department of Corrections, in his official and individual capacity; Steven Lafrinere, CO-I, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1254

445 F.3d 1254

Todd Carlton SMITH, also known as Shameka Shemae Shamya, Plaintiff-Appellant, v. William CUMMINGS, Kansas Department of Corrections, in his official and individual capacity; Ray Roberts, Kansas Department of Corrections, in his official and individual capacity; Don Thomas, Kansas Department of Corrections, in his official and individual capacity; E.L. Rice, Kansas Department of Corrections, in his official and individual capacity; John Doe, as discovery may provide, in his official and individual capacity; Jane Doe, as discovery may provide, in her official and individual capacity; Steven Lafrinere, CO-I, Defendants-Appellees.

Todd Carlton Smith, also known as Shameka Shemae Shamya, Plaintiff-Appellant, v. William Cummings, Kansas Department of Corrections, in his official and individual capacity; Ray Roberts, Kansas Department of Corrections, in his official and individual capacity; Don Thomas, Kansas Department of Corrections, in his official and individual capacity; E.L. Rice, Kansas Department of Corrections, in his official and individual capacity; Steven Lafrinere, CO-I, Defendants-Appellees.

No. 05-3180.

No. 05-3262.

United States Court of Appeals, Tenth Circuit.

April 24, 2006.^*

COPYRIGHT MATERIAL OMITTED

Todd Carlton Smith, also known as Shameka Shemae Shamya, pro se.

Ralph J. De Zago, Assistant Attorney General (Phill Kline, Attorney General), Topeka, KS, for Defendants-Appellees.

Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.

HARTZ, Circuit Judge.

Appellant Todd Carlton Smith is serving a life sentence imposed by the state of Florida. While incarcerated in Florida in 1994, he carried out a contract killing on a fellow inmate. In June 2002 he was transferred for his own protection to the Kansas Department of Corrections under the Interstate Corrections Compact (ICC). Mr. Smith alleges that he received the transfer out of Florida in settlement of legal claims he had against the Florida Department of Corrections, but the record does not indicate whether he had expressed a preference that the transfer be to Kansas.

In April 2003 Mr. Smith was allegedly assaulted by a fellow prisoner at the Lansing Correctional Facility in Kansas. He filed suit in the United States District Court for the District of Kansas, raising civil rights claims under 42 U.S.C. § 1983. He later filed an amended complaint adding state-law claims under the Kansas Tort Claims Act (KTCA). The district court disposed of the § 1983 claims by entering a default judgment against one defendant and granting summary judgment in favor of the others. It then dismissed the KTCA claims for lack of jurisdiction. On appeal Mr. Smith challenges the grant of summary judgment, the denial of his damages request against the defaulted defendant, the failure to order the state to pay the default award, and the dismissal of his KTCA claims. He also contends that the district judge was biased against him. We have jurisdiction under 28 U.S.C. § 1291. We affirm the judgment on the § 1983 claims, but reverse the dismissal of the KTCA claims and remand for further proceedings concerning Mr. Smith's domicile to determine whether the court has diversity jurisdiction.

I. BACKGROUND

Mr. Smith's claims are predicated on the following allegations: On April 18, 2003, Steven Lafrinere, a prison guard at Lansing, entered Mr. Smith's cell and directed him to another inmate's cell. That inmate forced Mr. Smith to engage in homosexual acts in retaliation for Mr. Smith's earlier murder of a fellow inmate in Florida who was a member of the Folk Nation, a national alliance of gangs. Two nights later the incident repeated itself. Mr. Lafrinere's employment at Lansing ended on April 27, 2003. On May 7, 2003, Mr. Smith reported the sexual assaults and asked to be placed in protective custody. While in protective custody he revealed Mr. Lafrinere's involvement in the assaults. Within a month Mr. Smith informed prison officials that he was not safe even in protective custody because of the enmity that other Lansing inmates bore towards him. Specifically, he complained that he and other inmates in protective custody were forced to pass through the general inmate population when going to medical "callouts"¹ and other required events. He claimed that he did not feel safe when he was exposed to the general prison population on these occasions. On June 9, 2003, Mr. Smith was transferred to the El Dorado Correctional Facility, where he was placed in long-term segregation. But a few weeks later he asked to be transferred out of segregation and then requested transfer back to Florida. These requests were denied.

Mr. Smith brought this § 1983 action against various prison officials (and the now-former prison guard, Mr. Lafrinere), claiming violations of his rights under the Equal Protection Clause, the Eighth Amendment, the Due Process Clause, the Sixth Amendment, the First Amendment, and the ICC. He sought compensatory and punitive damages and injunctive relief, including dismissal from state employment of the defendant prison officials, disciplinary proceedings against them, their federal prosecution, and his own removal from the custody of the Kansas Department of Corrections and return to Florida. He further asserted that he was entitled to relief under the KTCA based on the same alleged misconduct, stating after his claim against each defendant,

If this court does not deem the foregoing counts to rise to the level of being Constitutional violations, plaintiff prays that this court retain jurisdiction pursuant to Diversity of Citizenship, 28 U.S.C. § 1332(a);(1)., as the plaintiff is a citizen of the state of Florida, and [the defendant] is a citizen of the state of Kansas ... [the defendant] was a Kansas state employee, as defined in KS. 75-6102 of the Kansas Tort Claims Act. Pursuant to KS. 75-6103, the K.D.O.C. is liable for damages caused by the negligent or wrongful act or omission of its employees while acting within the scope of their employment....

R. Doc. 8 at 18 (first ellipsis in original); see also id. at 27, 35, 43, 52. He sought $500,000 in damages from each of the prison officials. The district court ordered a Martinez report to allow the state prison administration to develop the factual record at an early stage in the court proceedings. See Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir.1978) (authorizing such reports). After receiving the report, the district court entered a default judgment against Mr. Lafrinere but granted summary judgment to the other defendants. The district court dismissed the claims raised under the KTCA. It reasoned that Mr. Smith was a Kansas citizen and therefore could not invoke the court's diversity jurisdiction against the defendants, who are all Kansas citizens; and it declined to exercise supplemental jurisdiction under 28 U.S.C. § 1367.

II. DISCUSSION

"We review the district court's grant of summary judgment de novo, applying the same legal standard that should have been used by the district court." Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir.2004) (internal quotation marks omitted). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

A. Eighth Amendment Claims

In the district court Mr. Smith raised numerous Eighth Amendment claims, including claims against various prison officials relating to the alleged assault. The district court denied the claims against most of the defendants on the ground that they were not involved in the assault incidents and there is no vicarious liability under § 1983. Mr. Smith does not challenge these rulings. He does, however, raise two Eighth Amendment issues on appeal. First, he contends that his Eighth Amendment rights were violated by his placement in long-term segregation for two and a half years. But because he did not raise this claim in district court, we will not address it. See Simmat v. United States Bureau of Prisons, 413 F.3d 1225, 1239 (10th Cir.2005).

Second, he contends that his Eighth Amendment rights were violated by the failure of E.L. Rice, a prison official at Lansing, to "ensure that the inmates in [the] general population were not in the area of [Mr. Smith] when being escorted to and from the Protective Management Unit." Aplt. Br. at 16. The district court properly rejected this claim. "To establish a cognizable Eighth Amendment claim for failure to protect [an inmate from harm by other inmates], the plaintiff must show that he is incarcerated under conditions posing a substantial risk of serious harm[,] the objective component, and that the prison official was deliberately indifferent to his safety, the subjective component." Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir.2003) (internal quotation marks omitted). Mere negligence does not constitute deliberate indifference; deliberate indifference is equivalent to recklessness in this context. Id.

The district court ruled that Mr. Smith had satisfied neither the objective component nor the subjective component of this test. We agree. Mr. Smith has not shown that he was incarcerated under conditions posing a serious risk of harm. He was never assaulted while he was being escorted out of the protective housing unit. Nor did he present evidence that any inmate had ever been assaulted in such circumstances. Moreover, prison officials took precautions to minimize the risk of harm when prisoners were escorted out of the protective housing unit. These precautions included clearing the area of general-population inmates when large groups of protective-custody inmates were escorted out of the unit. And when individual inmates were brought out of protective custody, they were escorted by at least...