Long v. Morris, Civil Action No. 06-3089-KHV.

• Citation: 485 F.Supp.2d 1247
• Decision Date: 03 May 2007
• Docket Number: Civil Action No. 06-3089-KHV.
• Parties: Joshua LONG, Plaintiff, v. Justin MORRIS, Defendant.
• Court: U.S. District Court — District of Kansas

485 F.Supp.2d 1247

Joshua LONG, Plaintiff, v. Justin MORRIS, Defendant.

Civil Action No. 06-3089-KHV.

United States District Court, D. Kansas.

May 3, 2007.

Joshua Long, Olathe, KS, pro se.

Kirk Thomas Ridgway, Ferree, Bunn, O'Grady & Rundberg, Overland Park, KS, for Defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Plaintiff pro se brings suit against Justin Morris, Johnson County Sheriffs Deputy. Under 42 U.S.C. § 1983, plaintiff alleges that by using excessive force on October 19, 2005, defendant violated his rights under the Eighth Amendment to be free from cruel and unusual, punishment. This matter comes before the Court on defendant's Motion For Summary Judgment (Doc. # 20) filed December 15, 2006. For reasons set forth below, the Court finds that defendant's motion should be overruled.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). The nonmoving party may not rest on its pleadings but must set forth specific facts. Id. at 1241.

The Court must view the record in a light most favorable to the parties opposing the motion for summary judgment. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505.

In pro se prisoner litigation, the Tenth Circuit endorses the completion and filing of a "Martinez report" where the prison constructs an administrative record which details the factual investigation of the events at issue. See Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir.1978). The Martinez report is treated like an affidavit, and the court is not authorized to accept the factual findings of the prison investigation when the plaintiff has presented conflicting evidence. Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997). The pro se prisoner's complaint, when sworn and made under penalty of perjury, is also treated as an affidavit; like the Martinez report, it serves as evidence for a summary judgment determination. See id.

Plaintiffs opposition brief for the most part does not specifically contradict defendant's factual assertions with reference to those portions of the record on which he relies. See D. Kan. Rule 56.1.¹ The Court recognizes that pro se litigants should not succumb to summary judgment merely because they fail to comply with the technical requirements involved in defending such a motion. See Woods v. Roberts, No. 94-3159, 1995 WL 65457, at *2 (10th Cir. Feb.17, 1995); Hass v. U.S. Air Force, 848 F.Supp. 926, 929 (D.Kan.1994). The Court has therefore searched the record to determine whether genuine issues of material fact preclude the entry of summary judgment for defendant. Where supported by the record, the Court has included plaintiffs additional, facts and construed them in the light most favorable to plaintiff.

Facts

On October 19, 2005, plaintiff was incarcerated at the Johnson County Adult Detention Center in Olathe, Kansas in Module 2-D ("2-D"). That evening, Deputy Sheriff Justin Morris was assigned to work in 2-D. Deputy Ryan Giles was assigned to an adjacent module, but also assisted with inmates in 2-D. Shortly after 9:00 p.m., plaintiff entered the 2-D day room to begin his recreation period. Plaintiff was in full restraints (handcuffs attached to a waist belt and leg cuffs). After about 20 minutes, plaintiff crossed a demarcation line and picked up a paper from the floor in front of inmate Michael Fielden's cell. From an observation point, Giles told plaintiff not to cross the demarcation line. Morris told plaintiff to drop the letter. Plaintiff responded that it was just a piece of paper, and that he did not see anything wrong with having it. Morris reminded plaintiff that jail rules prohibited passing things between cells and crossing demarcation lines. Morris warned plaintiff that if he violated any more rules, his recreation period would end.

A few minutes later, plaintiff returned to the area near Fielden's cell and dragged the paper across the demarcation line with his foot. Plaintiff picked up the paper and began to read it. Morris entered the cell module and told plaintiff that his recreation period was over. Shortly after that, Giles also entered the cell module. Morris told plaintiff to lock down in his cell. Plaintiff said "This is bullshit." Morris reminded plaintiff of his prior warning and the consequence. Plaintiff claimed the situation was bullshit, and that it was just a piece of paper. Morris slowly walked over to where plaintiff was standing and reached out to take the letter from plaintiff. Plaintiff held the document away from Morris to prevent him from getting the letter. Plaintiff actively resisted Morris' efforts to take the letter. Morris reached around plaintiffs body and grabbed the paper. Morris then pushed plaintiff toward the stairs to get him moving up to his cell. Morris directed plaintiff to lock down, to which plaintiff replied "You're going to have to make me." Doc. # 21, Ex. B-1 at 4. At this point the record contains varying accounts of what happened next.

Viewed in a light most favorable to plaintiff, Morris grabbed plaintiff's left shoulder with his right hand, held plaintiffs waist with his left arm and threw plaintiff to the floor, landing on top of him. Plaintiffs head hit the concrete floor. Plaintiff required stitches to close a laceration on the right side of his head and suffered a separated right clavicle.² In a video recording of the incident plaintiff does not appear to act in a physically aggressive manner at any time. See Ex. B-11 to Reed Affidavit.

Morris maintains that plaintiff acted aggressively toward him and that he used the minimum amount force necessary to control him.³ In ruling on Morris' motion for summary judgment, however, the Court must construe the record in the light most favorable to plaintiff.

Analysis

Defendant seeks qualified immunity on plaintiffs claim of excessive force. Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In the excessive force context, the qualified immunity defense protects officers from "reasonable mistakes as to the legality of their actions." Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The Supreme Court has noted as follows:

The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.

Id. at 205, 121 S.Ct. 2151.

In determining whether defendant is entitled to qualified immunity, the Court first determines whether taken in the light most favorable to plaintiff, the facts show that defendant violated a constitutional right. Id. at 200-01, 121 S.Ct. 2151. If so, the Court determines whether the constitutional right was clearly established in light of the specific context of this case. Id. at 201, 121 S.Ct. 2151. If plaintiff satisfies, this two-part burden, defendant must demonstrate that no material issues of fact remain as to whether his actions were objectively reasonable in light of the law and the information he possessed at the time. See Martin v. Bd. of County Comm'rs, 909 F.2d 402, 405 (10th Cir.1990). If defendant makes such a showing of objective reasonableness, he is entitled to summary judgment unless plaintiff can demonstrate a factual dispute which is relevant to defendant's immunity claim. See id.

In order to prove an Eighth Amendment violation,, plaintiff must show that defendants used excessive force which resulted in "unnecessary and wanton infliction of pain." Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). While prison officials must occasionally resort to physical force to maintain or restore institutional order, they must also balance the institutional interest in order against the risk of harm to the inmate. See Hudson, 503 U.S. at 5, 112 S.Ct. 995. The...