Askew v. USP Leavenworth
| Decision Date | 13 January 2023 |
| Docket Number | 5:20-cv-03058-TC |
| Parties | LEON H. ASKEW, Plaintiff v. USP LEAVENWORTH, ET AL., Defendants |
| Court | U.S. District Court — District of Kansas |
Plaintiff Leon H. Askew, formerly an inmate at the United States Penitentiary in Leavenworth, Kansas, filed suit pro se after certain guards forcibly transferred him to a different facility. See Doc. 95 at 2-4. The United States and John Does 1-4 move to dismiss for lack of subject-matter jurisdiction, insufficient service of process, and failure to exhaust administrative remedies. Doc. 98. In the alternative they move for summary judgment. Id. For the following reasons, Defendants' motions are granted.
Numerous substantive and procedural rules apply to this case. Each merits specific mention.
1. One is subject-matter jurisdiction. Federal courts must be vigilant to ensure they have subject-matter jurisdiction over “every case and at every stage of the proceedings.” Lindstrom v. United States, 510 F.3d 1191, 1193 (10th Cir. 2007) (quoting Tafoya v. U.S Dep't of Just., Law Enf't Assistance Admin., 748 F.2d 1389, 1390 (10th Cir. 1984)). Because it is fundamental to a federal court's authority to adjudicate subject-matter jurisdiction is always a live issue and may be challenged at any point by any party to the litigation. See, e.g., Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 16-19 (1951); Harris v. Illinois-California Express, Inc., 687 F.2d 1361, 1366 (10th Cir. 1982).
Dismissal is required if a court lacks subject-matter jurisdiction. Fed.R.Civ.P. 12(h)(3). The party invoking a federal court's jurisdiction bears the burden of proving it exists. Siloam Springs Hotel, L.L.C. v. Century Surety Co., 906 F.3d 926, 931 (10th Cir. 2018). If it fails to do so, the opposing party may move for dismissal under Rule 12(b)(1), either by facially attacking the jurisdictional grounds alleged in the Complaint or by challenging the alleged factual basis on which subjectmatter jurisdiction rests. Rural Water Dist. No. 2 v. City of Glenpool 698 F.3d 1270, 1272 n.1 (10th Cir. 2012). In response to a facial challenge, only the parties' pleadings are considered, taking all the plaintiff's well-pleaded allegations as true. Pueblo of Jemez v. United States, 790 F.3d 1143, 1148 n.4 (10th Cir. 2015). But when a party raises a factual challenge, the court may “go beyond allegations contained in the complaint” and look at evidence which may “challenge the facts upon which subject matter depends ....” Id. (quoting Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995)). In this context, district courts have “wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.” Baker v. USD 229 Blue Valley, 979 F.3d 866, 872 (10th Cir. 2020) (internal quotation marks omitted) (quoting Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001)).
2. Another is personal jurisdiction. A federal court may only exercise personal jurisdiction over a defendant after the defendant has been properly served with a summons according to Federal Rule of Civil Procedure 4. Omni Cap. Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). And if a defendant has not been properly served, the claims against that defendant must be dismissed. Id.
A plaintiff must effect service of process within 90 days of filing a complaint. Fed.R.Civ.P. 4(m). When the defendant is an individual in the United States, service must be made according to Rule 4(e), which requires the plaintiff to deliver a copy of the summons and complaint to the defendant, leave a copy of each at the defendant's home “with someone of suitable age and discretion who resides there,” deliver a copy of each to a legally appointed agent, or follow state law for serving a summons in the relevant jurisdiction. Fed.R.Civ.P. 4(e). Failure to effect proper service results in dismissal without prejudice unless the plaintiff shows good cause or a permissive extension of time is warranted. Id.; Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000).
3. Summary judgment, which the Government seeks, is proper under the Federal Rules of Civil Procedure when the moving party demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “‘material' if it might affect the outcome of the suit under the governing law.” Janny v. Gamez, 8 F.4th 883, 898 (10th Cir. 2021) (quoting Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997)), cert. dismissed, 142 S.Ct. 878 (Jan. 26, 2022). And disputes over material facts are “‘genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. (citation omitted). Dis-putes-even hotly contested ones-over facts that are not essential to the claims are irrelevant. Indeed, belaboring such disputes undermines the efficiency Rule 56 seeks to promote.
At the summary judgment stage, material facts must be identified by reference to “materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, . . . admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); Delsa Brooke Sanderson v. Wyo. Highway Patrol, 976 F.3d 1164, 1173 (10th Cir. 2020). Affidavits or declarations “used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on matters stated.” Fed.R.Civ.P. 56(c)(4); Vette v. K-9 Unit Deputy Sanders, 989 F.3d 1154, 1163 (10th Cir. 2021). The court “construe[s] the factual record and reasonable inferences therefrom in the light most favorable to the nonmovant.” Janny, 8 F.4th at 899 (quoting Allen, 119 F.3d at 839-40). That said, the nonmoving party cannot create a genuine factual dispute by making allegations that are purely conclusory, id. at 899, or unsupported by the record as a whole, Scott v. Harris, 550 U.S. 372, 380 (2007); see also Heard v. Dulayev, 29 F.4th 1195, 1202 (10th Cir. 2022).
The moving party bears the initial burden of showing the absence of any genuine issue of material fact and entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). 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. Celotex, 477 U.S. at 324; Savant Homes, 809 F.3d at 1137.
4. And finally, Askew is proceeding pro se. Pro se pleadings are construed liberally and are held to a less stringent standard than those drafted by counsel. Childers v. Crow, 1 F.4th 792, 798 (10th Cir. 2021). Accordingly, courts should overlook any failure to properly cite legal authority, confusion of various legal theories, poor syntax and sentence construction, or apparent unfamiliarity with pleading requirements. Firstenberg v. City of Santa Fe, 696 F.3d 1018, 1024 (10th Cir. 2012) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). But the pro se party must still “follow the same rules of procedure that govern other litigants,” including the Federal Rules of Civil Procedure and the District of Kansas Rules of Practice. United States v. Green, 886 F.3d. 1300, 1307 (10th Cir. 2018) (quoting Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)). And, importantly, a pro se litigant is a party to a lawsuit; courts may not abandon the role of an neutral arbiter of that dispute by constructing arguments on their behalf or assuming facts not pled. Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009).
1. The following facts are uncontroverted. They have been summarized from the stipulations in the Pretrial Order. Doc 95 at 2-4.
Askew's claims stem from an incident that occurred on February 21, 2018, during his incarceration at the United States Penitentiary in Leavenworth, Kansas (USP Leavenworth). Doc. 95 at 2. On that day, Askew was scheduled to be transferred to another facility. Id.
Askew refused “to submit to handcuffs for transfer.” Doc. 95 at ¶ 2.a.4. USP Leavenworth then assembled a team to remove him from his cell. Id. As the team prepared to extract him, Askew attempted to keep them from entering his cell by placing his mattress against the cell door, tying bedsheets to the cell bars, and stuffing material in the lock. Id. at ¶¶ 2.a.5-6. Before prison staff used chemicals, Askew told them, [1]Id. at ¶ 2.a.7. Humphrey, a USP Leavenworth guard, replied, “If you submit to restraints, we will not have to use chemicals.” Id. Askew stated, “That means I can die.” Id.
USP Leavenworth staff nevertheless forced their way into Askew's cell. Doc. 95 at ¶ 2.a.8. They shot pepper ball spray into the cell in an effort to subdue Askew and cut the lock with a chop saw. Id. at ¶¶ 2.a.8-9. Once the door was open, Askew laid face-down on the floor of the cell. Id. at ¶ 2.a.10. USP Leavenworth staff then restrained Askew. Id. at ¶ 2.a.11. After handcuffing his legs and feet, they moved him to another cell for decontamination and medical assessment, where they noticed his eye was swollen. Id. at ¶¶ 2.a.12-13. They then transferred him to a different section of the prison. Id. at ¶ 2.a.14.
At that point, USP Leavenworth staff changed Askew into clean clothing. Doc. 95 at ¶ 2.a.15. Public Health Services Officer Jeremie Gregory was involved in changing Askew's clothing. See id. at 3-4. Gregory found a piece of cloth attached to a piece of a shoe...
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