Elrod v. Walker
| Decision Date | 20 December 2011 |
| Docket Number | Case No. 06-3115-SAC |
| Parties | ANTHONY WAYNE ELROD, Plaintiff, v. (FNU) WALKER, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
This case comes before the Court on Defendants' motion to dismiss or in the alternative for summary judgment. Plaintiff, a pro se litigant, complains that his constitutional rights were violated when he was assaulted by correctional officers at United States Penitentiary Leavenworth on April 14th, 2005. In a prior order, the Court dismissed all Bivens claims against the United States, the Bureau of Prisons, and any individual defendant in his official capacity as barred by sovereign immunity. Doc. 12 p.3. The Court also found that the United States is the only proper defendant for Plaintiff's FTCA claim. Id. Thus Plaintiff's remaining claims, all arising from the April 14th incident, are: 1) Defendants Walker, Lacy, Gum, and Gray violated his Eighth Amendment rights by using excessive force; 2) Defendant Gray assaulted him in retaliation for Plaintiff's protected conduct of filing two civil lawsuits the previous month or filing administrative grievances; and, 3) the USA violated the Federal Tort Claims Act by assaulting and battering him and stealing his personal property.
The parties have submitted numerous documents outside the pleadings, so the Court determines whether summary judgment is appropriate. A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v.. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp ., 475 U.S. 574, 587 (1986).
To counter a "properly made" motion, the non-movant must "set out specific facts showing a genuine issue for trial" by way of admissible evidence in compliance with Rule 56(e)(1). A party faced with a summary judgment motion may not simply rest on allegations contained in the pleadings, but must come forward with admissible evidence establishing each fact he relies upon. BancOklahoma Mort. Corp. v. Capital Title Co., 194F.3d 1089, 1097 (10th Cir. 1999). Our local rule requires those facts to be "presented by affidavit, declaration under penalty of perjury," or other stated discovery. D.Kan. 56.1(d). Affidavits and declarations must be made on personal knowledge and shall set forth such facts as would be admissible in evidence. Id; See Fed.R.Civ.P. 56(c)(4).
Plaintiff has not complied with the Court's rules governing summary judgment motions, despite the fact that the relevant rules were sent directly to him. See Doc. 26, Exh. L. Plaintiff's response fails to set forth his facts, or counter Defendants' facts, with the required specificity. Plaintiff's response evidences no effort whatsoever to comply with those rules, which are not mere technicalities but are designed to promote fairness and reliability in the process. As a result, all material facts set forth in Defendants' statements of fact are deemed admitted. See D. Kan. Rule 56.1.
Plaintiff was incarcerated at USP Leavenworth from February 7, 2002, through November 12, 2003, and from March 11, 2004 through August 4, 2005. Defendant Walker received information from Defendant Gum that Plaintiff had stolen an item, so instructed Plaintiff to follow him to the strip search area. While walking next to Plaintiff, Defendant Walker saw Plaintiff reach into the top of his pants and remove an unknown item, which Plaintiff attempted to conceal from him. Defendant Walker instructed Plaintiff to show him what he had in his hands, but Plaintiff refused and brought hishand with the item up to his mouth. Defendant Walker tried to grab Plaintiff's hand which had held the unknown object, then grabbed Plaintiff, who became combative, and resisted. Defendant Walker believed Plaintiff's act of ingesting some unknown item could harm Plaintiff, and that Plaintiff's actions could create a significant disruption within the correctional institution setting, as Plaintiff was defying direct orders by staff, trying to conceal an item, and being physically combative with staff.
Defendant Walker then took Plaintiff to the ground, yelled for assistance, and used the force he determined was necessary to control the Plaintiff. Several staff members responded to his call. While Plaintiff was on the ground, he continued to be combative with staff and resisted their efforts to regain control over him. Plaintiff did not obey Defendant Walker's instruction that he provide his left hand to be restrained. Eventually, Defendant Walker brought Plaintiff's left hand towards Plaintiff's back and secured the restraint on both of Plaintiff's hands, and assisted Plaintiff to his feet. Plaintiff was then escorted to the Lieutenant's office. Plaintiff sustained physical injuries as a result of the incident, requiring medical care.
The tape of the incident shows that Defendant Walker grabbed the Plaintiff, that Plaintiff turned away from Defendant Walker, and that Defendant Walker then took Plaintiff to the floor. At least seven other officers responded and got on the floor to assist in subduing the Plaintiff. The entire incident, from Defendant Walker's first touching of Plaintiff untilPlaintiff was assisted to his feet, lasted approximately one-and-one-half minutes. The tape shows Defendant Lacy observing the incident, but does not show Defendants Gray or Gum at all.
Defendant Gum received a telephone call from the Health Services Department at approximately 3:30 p.m. on April 14th to strip search the Plaintiff because he was believed to have stolen some hand sanitizer from the department. Defendant Gum relayed that information to Defendant Walker, who was working in the Center Hall area, pat searching inmates. Defendant Gum saw Defendant Walker walking with Plaintiff toward the strip search room, heard Defendant Walker yell, then saw Plaintiff fall to the floor. Defendant Gum then activated emergency notification to summon staff assistance, but did not approach the Plaintiff, and remained in his area near Center Hall.
Defendant Lacy, who was the Discipline Hearing Officer during April, 2005, was in the Center Hall area on April 14, 2005. He did not see the initial use of force by Defendant Walker, but saw the Plaintiff on the ground, refusing to submit to restraints. Defendant Lacy instructed Plaintiff to submit to restraints, but was not involved in the use of force or any application of restraints, and did not touch Plaintiff during the incident. He observed staff acting appropriately and within BOP's Use of Force policy in attempting to regain control of Plaintiff, whom Defendant Lacy characterized as belligerentand uncooperative. Defendant Lacy did not observe any excessive force used against Plaintiff.
Defendant Gray was not involved in any use of force against Plaintiff on April 14, 2005. On that date, he was not in the area of Center Hall, did not respond to any call for assistance, and did not touch the Plaintiff. Defendant Gray was Plaintiff's Case Manager in late January through mid-February 2005. Liberally construed, Plaintiff's "affidavit" attached to his Amended Complaint alleges three statements made by Defendant Gray: 1) on February 1, 2005, Defendant Gray threatened to make sure Plaintiff got indicted for something if Plaintiff continued to file administrative remedies; 2) on February 1, 2005, Defendant Gray said that if Plaintiff wished to go home in 71/2 years then he had better stop filing administrative remedies and lay low or Defendant Gray would do whatever it took to get Plaintiff indicted for something and more time in prison; and 3) on July 13, 2005, Defendant Gray came to Plaintiff's SHU cell door and told Plaintiff that he had Defendant Walker jump on Plaintiff on April 14th and that he would have it done again if Plaintiff did not drop his lawsuits and keep his mouth closed.
Defendant Gray denies making any threats of retaliation in any manner against Plaintiff for filing administrative remedies or civil lawsuits, and avers that he was not aware of any pending litigation by Plaintiff until June of 2005. If Plaintiff had spoken to Gray in July of 2005, or at any timewhen Gray was no longer Plaintiff's case manager, he would have directed Plaintiff to his appropriate unit team members.
Other staff members who were involved in restraining the Plaintiff opine that no excessive force was used and that the immediate use of force complied with BOP policy. The BOP authorizes staff to use force on a particular inmate to gain control of the inmate, protect and ensure the safety of inmates, staff and others; to prevent serious property damage; and to ensure institution security and good order. See BOP Regulations and Program Statement 5566.06, Use of Force and Application of Restraints ("P.S. 5566.06"). Staff are authorized to apply physical restraints necessary to gain control of an inmate who appears to be dangerous because the inmate: a. Assaults another individual; b. Destroys government property; c. Attempts suicide; d. Inflicts injury upon self; or e. Becomes violent or displays signs of imminent violence. Staff are to exercise sound correctional judgment in making determinations as to when force is necessary to be used and the level of force necessary to contain the situation.
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