Bafford v. Nelson

• Decision Date: 18 December 2002
• Docket Number: 01-3224-JWL.
• Citation: 241 F.Supp.2d 1192
• Parties: Jonathan W. BAFFORD, Plaintiff, v. Michael NELSON, et al., Defendants. No.
• Court: U.S. District Court — District of Kansas

241 F.Supp.2d 1192

Jonathan W. BAFFORD, Plaintiff, v. Michael NELSON, et al., Defendants. No.

01-3224-JWL.

United States District Court, D. Kansas.

December 18, 2002.

Johnathan William Bafford, pro se, El Dorado, KS, for Plaintiff.

Brian R. Johnson, Loren F. Snell, Jr., Office of Attorney General, Rebecca Ann Weeks, Kansas Attorney General, Topeka, KS, for Defendants.

MEMORANDUM & ORDER

LUNGSTRUM, District Judge.

Plaintiff Jonathan W. Bafford, proceeding pro se, brings this 42 U.S.C. § 1983 claim alleging that defendants Michael Nelson, Kevin Vail, and Charles Simmons (the "Correctional Officials"¹) violated his constitutional rights by subjecting him to cruel and unusual punishment in violation of the Eighth Amendment. Specifically Mr. Bafford contends that Sergeant Vail inflicted excessive force by throwing him to the ground, punching him, and pulling on his nostrils, and after this initial confrontation, continuing to beat him in a shower room. Mr. Bafford argues that defendant Nelson, who was the warden at El Dorado Correctional Facility ("ECF") at the time of these events, and Charles Simmons, who was the Secretary of the Kansas Department of Corrections ("KDOC"), are liable as supervisors of Sergeant Veil.

The Correctional Officials filed a motion for summary judgment (Doc. 27) arguing that the facts do not support a violation of Mr. Bafford's Eight Amendment rights, that the Correctional Officials are immune from liability, and that defendants Nelson and Simmons cannot be held liable as supervisors of Sergeant Vail. Mr. Bafford argued, in his initial response (Doc. 30), that he could not respond adequately to the motion because the Correctional Officials failed to produce discovery as required by the court's May 3, 2002 order. In light of these allegations, the court ordered the Correctional Officials to show cause why their summary judgment motion should not be denied for failure to produce the requested materials.

The matter is currently before the court on the Correctional Officials' response to the order to show cause (Doc. 33), Mr. Bafford's self-titled motion for summary judgment (Doc. 34)², and the Correctional Officials' motion for summary judgment (Doc. 27). Because the Correctional Officials have complied with the court's order to voluntarily produce discovery, they have shown cause why their motion for summary judgment should not be denied and their explanation undermines the substantive basis for Mr. Bafford's motion for summary judgment.

As to the Correctional Officials' motion for summary judgment, the court grants the motion as to Mr. Bafford's claim that Sergeant Vail used excessive force when he initially restrained the plaintiff, but the court denies the motion as to Mr. Bafford's claim that Sergeant Vail used excessive force by punching Mr. Bafford in the shower room, after officers had restrained him and when he posed no apparent threat to the officers' safety. Mr. Bafford has set forth facts concerning the incident in the shower room from which, if true, a reasonable juror could conclude that Sergeant Vail used force maliciously and sadistically for the very purpose of causing harm. Additionally, the court grants the Correctional Officials' motion as to Mr. Bafford's supervisory claims against Warden Nelson and Secretary Simmons because Mr. Bafford has failed to show an affirmative link between his alleged constitutional deprivation and the acts or inaction of these supervisors.

I. Facts

Correctional Officials base their motion, in large part, on the facts set out in the report filed pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978).³ The Tenth Circuit has held that, for purposes of summary judgment, a Martinez report may be treated as an affidavit, but "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) (citing Hall v. Bellman, 935 F.2d 1106, 1111 (10th Cir.1991)). A pro se prisoner's complaint, if verified, meaning sworn and made under penalty of perjury, is similarly treated as an affidavit and, like a Martinez report, may be used as evidence at the summary judgment stage. Id. Here, the Martinez report and the allegations made in Mr. Bafford's verified complaint and documents incorporated by reference therein⁴ conflict on several factual allegations concerning Sergeant Vail's use of force and for purposes of this order, the court, of course, will view the facts in the light most favorable to the plaintiff.

Mr. Bafford is an inmate incarcerated at the ECF. At all times relevant to the complaint, defendant Kevin Vail ("Sergeant Vail") was a correctional officer at ECF, defendant Michael Nelson was the warden at ECF, and defendant Charles Simmons was the Secretary for the KDOC.

Mr. Bafford bases his complaint entirely upon events that transpired on February 1, 2001. Early that morning, Correctional Officer McAllister noted in a staff referral form that Mr. Bafford was refusing his medications and appeared more unstable than normal. Officer McAllister further reported that Mr. Bafford was threatening to "bust up his T.V. and cut his own throat."

At approximately 5:00 A.M. Mr. Bafford called an officer to his cell and displayed a clear piece of plastic that was approximately 11/2" long and 1/2" Approximately fifteen minutes later, Mr. Bafford called another officer to his cell and brandished a clear piece of plastic that was approximately 4" long with a pointed end. Prison officials decided that it was necessary to "shake down" Mr. Bafford's cell and remove the jagged pieces of plastic. Sergeant Vail along with Correctional Officer Hopkins removed Mr. Bafford from his cell and escorted him to a shower room. During this transfer, Mr. Bafford says that he called Sergeant Vail a "pussy" and that the Sergeant responded by stating "that's not what you said when I had my last occurance [sic] with you in # 266 when I was slamming your face into the floor."

Prison officials shook down Mr. Bafford's cell and removed a broken coffee container, a paper clip, and a coffee container lid. While Sergeant Vail and Officer Hopkins were escorting Mr. Bafford back to his cell he threatened to throw Sergeant Vail over the ledge of the two hundred run. The Correctional Officials allege that Mr. Bafford also made an aggressive move toward Sergeant Vail immediately following the verbal threat. Both parties agree that the correctional officers forced Mr. Bafford to the ground, but disagree over the amount of force used. The Correctional Officials contend that they used the least amount of force necessary to restrain Mr. Bafford. Mr. Bafford, however, alleges that he was slammed to the ground and that Sergeant Vail punched him in the face and grabbed his nostrils while he was lying flat on his back. Mr. Bafford alleges that this force exceeded what was necessary for the correctional officers to restrain him.

After placing Mr. Bafford in leg irons, the correctional officers lifted him to his feet. Thereafter, Mr. Bafford told the officers that "[t]his is what you are going to get for abusing me" and spit blood in the face of Correctional Officer Hopkins. The officers again forced Mr. Bafford to the floor and placed a "spit net" over his face. The correctional officers then escorted Mr. Bafford back to the shower room. Mr. Bafford contends that while he was in the shower room Sergeant Vail punched him several times in the back of the head, causing swelling in that area.

On February 4, 2001, Mr. Bafford filed an administrative grievance concerning these events. On February 16, 2001, the Unit Team noted in its response that it was unable to verify Mr. Bafford's claims. On February 23, 2001, Warden Nelson issued a memorandum expressing his agreement with the response of the Unit Team. On March 16, 2001, Mr. Bafford mailed his grievance appeal to the Secretary of Corrections. On March 26, 2001, the Secretary concluded that the response of the Warden was appropriate and that his office was unable to find any evidence that would support the inmate's allegation. On June 7, 2001, Mr. Bafford filed the present action.

II. Show Cause Order

On May 3, 2002 the court ordered the Correctional Officials to produce voluntarily several categories of documents and evidence by May 15, 2002.⁵ On July 25, 2002, Mr. Bafford filed a motion in response to the Correctional Officials' motion for summary judgment (Doc. 30). Therein, Mr. Bafford alleged that the Correction Officials had failed to produce the materials as ordered and that the discovery was needed to respond appropriately to the summary judgment motion. On November 12, 2002, the court ordered the Correctional Officials to show cause why their summary judgment motion should not be denied for failing to produce the ordered discovery.

In their response to the notice and order to show cause, the Correctional Officials noted that all available and relevant discovery was mailed to Mr. Bafford on May 14, 2002.

Moreover, when Mr. Bafford accused the Correctional Officials of failing to produce the discovery, they once again sent him all the available discovery on August 8, 2002. Mr. Bafford has since acknowledged that he received all of the discovery except for the video tape and the KDOC policy governing preservation of video tapes. The Correctional Officials, however, have submitted evidence showing that the video and policy documents do not exist. Based upon this showing, the court finds that the Correctional Officials have established good cause why their motion for summary judgment should not be denied for failure to produce ordered discovery. For the same reasons, the court denies Mr. Bafford's self-titled "Motion for Summary Judgment" (Doc. 34), wherein he contends that he is entitled to judgment because of the Correctional Officials' failure to produce the ordered discovery.

III. Defendant's...