Davis v. Berg
| Decision Date | 05 August 2020 |
| Docket Number | Case No. 20-3021-JWB |
| Court | U.S. District Court — District of Kansas |
| Parties | DARREN JARELLE DAVIS, Plaintiff, v. (FNU) BERG, (FNU) RAMIREZ, and (FNU) TAYLOR, Defendant. |
This matter comes before the court on Defendants' motion to dismiss and memoranda in support. (Docs. 26, 27.) Plaintiff, who is appearing pro se, failed to file a timely response to the motion. For the reasons stated herein, Defendants' motion is GRANTED IN PART AND DENIED IN PART.
The following facts are taken from the allegations in the complaint. On November 6, 2019, Plaintiff was confined in the Johnson County Adult Detention Center. On that date, Plaintiff alleges that he covered the camera in the cell in order to use the restroom. Defendant Taylor approached the cell with a response team of six deputies. Taylor informed Plaintiff that he would be placed in a restraint chair if he continued to cover the camera. Plaintiff responded by asking Taylor, "Who cares?" (Doc. 1 at 2.) Taylor then ordered Plaintiff to cuff up and Plaintiff asked, "Why?" (Id.) The team then entered the cell and slammed Plaintiff to the ground.
Plaintiff alleges that Defendant Berg slammed his head into the ground repeatedly and ground his head against the ground. Plaintiff further alleges that Defendant Ramirez repeatedly kicked and kneed him while he was being restrained by five other deputies. Plaintiff alleges that he was not resisting during this use of force and that he could not move his body due to being restrained by the other deputies. Taylor was not alleged to have any involvement in the use of force but allegedly allowed the deputies to beat Plaintiff.
Plaintiff was then moved to a restraint chair for five hours. Plaintiff alleges that the straps were very tight and that they cut off his circulation and cut into his ankles. Plaintiff alleges that "jail officials and medical staff failed to provide adequate medical care." (Doc. 1 at 3.)
Defendants move for dismissal on the basis that Plaintiff's complaint fails to adequately state a claim or, alternatively, that they are entitled to qualified immunity. Although Plaintiff has failed to file a response, the court cannot dismiss Plaintiff's complaint on this basis and must evaluate the sufficiency of the claims on the merits. See Issa v. Comp USA, 354 F.3d 1174, 1177-78 (10th Cir. 2003).
Rule 12(b)(6). In order to withstand a motion to dismiss for failure to state a claim, a complaint must contain enough allegations of fact to state a claim for relief that is plausible on its face. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007)). All well-pleaded facts and the reasonable inferences derived from those facts are viewed in the light most favorable to Plaintiffs. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations, however, have no bearing upon the court's consideration. Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).
Section 1983 Qualified Immunity. Defendants also move for dismissal on the basis of qualified immunity. "Individual defendants named in a § 1983 action may raise a defense ofqualified immunity." Cillo v. City of Greenwood Vill., 739 F.3d 451, 460 (10th Cir. 2013). Qualified immunity "shields public officials ... from damages actions unless their conduct was unreasonable in light of clearly established law." Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir. 2008) (quotations omitted). When the defense of qualified immunity is asserted, a plaintiff must show: "(1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct." Cillo, 739 F.3d at 460.
Supervisor Liability. Vicarious liability is inapplicable to section 1983 claims. Iqbal, 556 U.S. at 676. As such, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Id. "An affirmative link must exist between the constitutional deprivation and the supervisor's personal participation, exercise of control or direction, or failure to supervise." Quint v. Cox, 348 F. Supp. 2d 1243, 1250 (D. Kan. 2004).
For his first claim, Plaintiff alleges that his Eighth Amendment1 right to be free from cruel and unusual punishment was violated by Defendants due to their use of force during his restraint."The Eighth Amendment guarantees prisoners the right to be free from 'cruel and unusual punishments' while in custody." Ullery v. Bradley, 949 F.3d 1282, 1289-90 (10th Cir. 2020) ). A prison official's "unnecessary and wanton infliction of pain" violates the Eighth Amendment. Id. at 1290. To establish a claim of excessive force under the Eighth Amendment, Plaintiff must show: (1) that the amount of force was harmful enough to establish a constitutional violation when viewed objectively; and (2) that, subjectively, the use of force was applied "maliciously and sadistically," rather than "in a good faith effort to maintain or restore discipline." Id. (quoting Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003)).
In reviewing the first factor, the court must determine whether Defendant's use of force was objectively unreasonable. "[O]bjective reasonableness turns on the 'facts and circumstances of each particular case.'" Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). To determine objective reasonableness, the court should consider the following factors, although not one factor is dispositive and the list is not exclusive: "the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting." Id. The court also must consider the legitimate interests to maintain internal order and security at the prison. Id.
Plaintiff alleges that Defendant Berg slammed his head into the ground repeatedly and ground his head into the floor while he was being restrained. According to the allegations, Plaintiff had covered the camera in his cell in order to use the bathroom. Plaintiff then refused to take it down after Defendant Taylor told him to and told him that he would be restrained if he failed to comply. Plaintiff admits in his allegations that he was not complying with Taylor. Therefore, it was reasonable for Berg and the team of deputies to enter the cell to restrain Plaintiff. Plaintiff's allegations, however, suggest that the use of force was unreasonable. Plaintiff alleges that he was not resisting when the deputies were restraining him. Plaintiff further alleges that he could not move and during this time Berg slammed his head into the ground repeatedly. Based on Plaintiff's allegations, Plaintiff was not posing a continued threat to the deputies after they entered his cell. Moreover, Plaintiff was not resisting the attempt by the deputies to restrain him.
Viewing these allegations in a light most favorable to Plaintiff, the court finds that Plaintiff has alleged that the force used was unreasonable. Plaintiff has also sufficiently alleged that Berg acted with a culpable state of mind. Based on the allegations, Berg "slammed" Plaintiff's head to the ground repeatedly when Plaintiff was unable to move due to the five deputies that were restraining him. Berg's alleged actions, therefore, sufficiently allege that Berg acted with malice instead of acting in good faith to restore order. See Bafford v. Nelson, 241 F. Supp.2d 1192, 1202 (D. Kan. 2002).
Defendants cite various authority for the proposition that dismissal is warranted. Defendants cite to Rhoten v. Werholtz, 243 F. App'x 364 (10th Cir. 2007). In that case, the court of appeals upheld a dismissal of an Eighth Amendment excessive force claim on the basis that it was a de minimis use of force. According to the allegations, during a pat down, the plaintiff was shoved against the wall, his nipples and buttocks were squeezed, and his testicles were pulled. Thecourt of appeals held that these allegations were not sufficient, citing cases that grabbing and twisting an inmate was not objectively harmful. Moreover, although not dispositive, there was no injury. Id. at 367. Although Plaintiff has not alleged that he suffered an injury, Plaintiff has alleged that his head was slammed to the ground repeatedly and that Berg ground his head into the floor.2 Moreover, Plaintiff alleges that he was unable to move and pinned to the ground by the other deputies at the time. These allegations are more egregious than those in Rhoten.
In Nosewicz, the court of appeals held that the plaintiff had sufficiently alleged an unreasonable use of force when the plaintiff was not resisting, and the defendant slammed his head into the wall and forcefully hit him. Nosewicz v. Janosko, 754 F. App'x 725, 734-35 (10th Cir. 2018) (). In that case, the court of appeals cited other authority for the proposition that a forceful takedown is not justified when the plaintiff was not resisting and posed no threat. Id. (); see also Casey, 509 F.3d at 1285 ()
Defendants also cite to McCoy v. Kansas Dep't of Corr., No. 16-3239-SAC, 2018 WL 1726344, at *4 (D. Kan. Apr. 10, 2018). In that case, the court held that the plaintiff had failed to establish a claim because the...
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