Green v. Denning
| Decision Date | 31 August 2011 |
| Docket Number | Case No. 06-3298-SAC |
| Parties | CHARLES D. GREEN, Plaintiff, v. FRANK DENNING, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
This case comes before the court on defendant's motion for summary judgment. (Dk. 72) Plaintiff opposes the motion. Also pending are defendants' motion to strike plaintiff's affidavit (Dk. 82), defendants' motion to strike plaintiff's second response (Dk. 93), and plaintiff's motions for appointment of counsel (Dks. 86, 90, 94 & 97).
PROCEDURAL BACKGROUND
This is a civil rights case brought pursuant to 28 U.S.C. § 1983, based upon events which occurred while plaintiff was confined in the Johnson County Adult Detention Center (JCADC) in Olathe, Kansas.
Plaintiff's complaint originally contained five claims, and plaintiff was later granted leave to add a sixth. See Dks. 1, 8, 31. Plaintiff additionally added parties. The court subsequently dismissed plaintiff's third (due process) and sixth (retaliation) claims as stating no claim for relief under § 1983 (Dk. 36), and dismissed Prison Health Services as a party (Dk. 84).Plaintiff's second claim (denial of hormonal treatment) is brought solely against Prison Health Services, so shall be dismissed for failure to state a claim for relief. This leaves the following three claims for resolution:1) Deputy Polson used excessive force against plaintiff in May of 2005; 2) Major Cortright and Deputy Pierucci continually denied plaintiff's requests for dental floss; and 3) Major Cortright and Deputy Pierucci mishandled plaintiff's legal mail by opening it outside plaintiff's presence. Defendants move for summary judgment on each of these claims, and plaintiff opposes the motion.
SUMMARY JUDGMENT STANDARD
Rule 56 authorizes judgment without trial "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). A material fact is one which would affect the outcome of the claim or defense under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (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). To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein." Adams v. American Guarantee and Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000). Affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence. Fed.R.Civ.P. 56(c)(4).
The nonmoving party's admissible evidence "is to be believed, and all justifiable inferences are to be drawn in [that party's] favor." Anderson, 477 U.S. at 255; MacKenzie v. City & County of Denver, 414 F.3d 1266, 1273 (10th Cir. 2005). At this stage, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge...." Anderson, 477 U.S. at 255. However, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.' " Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). See Pinkerton v. Colorado Dept. of Transp., 563 F.3d 1052, 1058 (10th Cir. 2009).
A court liberally construes a pro se pleadings and applies "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, the court "will not supply additional factual allegations to ... construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).The court cannot be a pro se litigant's advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and will not accept as true conclusory allegations unsupported by factual allegations. Oxendine v. Kaplan, 241 F.3d 1272 (10th Cir. 2001).
MOTIONS TO STRIKE
Defendants have moved to strike two of plaintiff's filed documents, alleging they are not permitted by the local rules: 1) plaintiff's affidavit (Dk. 82) filed separately from plaintiff's response to defendants' summary judgment motion; and 2) plaintiff's "second response" to defendants' motion to strike plaintiff's affidavit. Plaintiff counters that his affidavit was filed in response to defendant's reply brief, which pointed out that Plaintiff's response lacked evidentiary foundation.
This court's local rule regarding motions allows the movant to file a motion accompanied by a brief or memorandum, requires the opposing party to file a response in opposition to the motion, and permits the movant to file a reply brief or memorandum. See D. Kan. Rule 7.1. There is no provision in the local rules for filing any other responses, replies, or surreplies (meaning a reply to a reply). Consequently, the filing of such documents is not permitted without leave of court. Defendants contend that plaintiff's two documents challenged above are in the nature of surreplies, and since leave of court was neither sought nor granted, should be stricken.
The court will consider the contents of the plaintiff's affidavit andsecond response, primarily because the court affords pro se plaintiffs some degree of latitude with respect to those procedural rules which are designed primarily for the court's convenience. Defendants assert no prejudice from plaintiff's unauthorized filings. Additionally, the court prefers to decide civil cases on their merits where possible, instead of ruling based on a party's procedural failure to present any factual material in support of one's opposition, as would be the case if plaintiff's affidavit were stricken. See D.Kan. Rule 56.1(d) ()
The Court has granted the plaintiff much leeway in permitting him to file multiple responses to defendant's motions instead of striking them as outside the briefing boundaries established by the rules, but the Court will not exempt plaintiff from other substantive rules which are designed to achieve fundamental fairness to all parties. For example, the court will not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
MOTIONS FOR APPOINTMENT OF COUNSEL
Plaintiff has filed multiple motions to appoint counsel, several of which are pending. Plaintiff contends that he has tried diligently to find counsel, that he has no legal training, that he suffers from stress or other mentalissues, that this is a complex and meritorious case, and that he needs counsel to counter the false affidavits filed by defendants.
Under 28 U.S.C. § 1915(e)(1), a district court may, in its broad discretion, appoint counsel to an indigent party in a civil case, Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991), but civil litigants enjoy no constitutional right to an attorney, Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006) (per curiam). The Court will seek volunteer counsel for a pro se plaintiff only if the following factors so warrant: (1) the merits of the litigant's claims, (2) the nature of the factual issues raised in the claims, (3) the plaintiff's ability to present his claims, and (4) the complexity of the legal issues raised. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (citing Williams, 926 F.2d at 996). See McCarthy v. Weinberg, 753 F.2d 836, 837 (10th Cir. 1985)(requiring appointment of counsel in complex case where the plaintiff was mentally and physically disabled and lacked the capacity to investigate and develop crucial medical testimony); Rucks, 57 F.3d at 979.
The record reflects that the issues before the court are neither factually nor legally complex. Plaintiff writes clearly, has presented the issues cogently, and has repeatedly demonstrated his ability to file motions, to seek and obtain amendments to his complaint (adding both claims and parties), and to follow most procedural rules. Further, the Court is not convinced of the merits of plaintiff's claims, as noted below. Because plaintifffails to show that he has a colorable claim but lacks the capacity to present it, his motions for appointment of counsel shall be denied.
SUMMARY JUDGMENT MOTION § 1983 cases, generally
"To state a claim under section 1983, plaintiff must allege the violation of a right secured by the Constitution and laws of the United States ... committed by a person acting under color of state law." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). "Because vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, ______ U.S. ______, 129 S.Ct. 1937, 1948 (2009); Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009). A plaintiff who has adequately identified defendants and described their acts in a § 1983 complaint must also allege facts showing a federal constitutional violation, not merely inappropriate action.
Excessive force
Plaintiff contends that Deputy Polson violated plaintiff's constitutional right to be free from cruel and unusual punishment...
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