Grissom v. Werholtz
| Decision Date | 28 August 2012 |
| Docket Number | No. 07-3302-SAC,07-3302-SAC |
| Parties | RICHARD GRISSOM, Plaintiff, v. ROGER WERHOLTZ, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
This case filed by an inmate under 42 U.S.C. § 1983 comes before the court on Defendants' motion for summary judgment.1 Plaintiff seeks damages and injunctive relief on six2 grounds alleging the violation of his constitutional rights while confined in Kansas correctional facilities. Defendants are Roger Werholtz as Secretary of the Kansas Department of Corrections (KDOC),3 Ray Roberts as Warden of the El Dorado Correctional Facility (EDCF), Louis Bruce as former Warden of the Hutchinson Correctional Facility (HCF), Sam Cline as the current Warden of HCF, David McKune as Warden of Lansing Correctional Facility (LCF), DuaneMuckenthaler as an LCF Correctional Counselor, Debra McConaghy as an HCF Correctional Counselor, and Thomas Phelan as the EDCF Chaplain.
On summary judgment, the movant bears the initial to point out the portions of the record which show that the movant is entitled to judgment as a matter of law. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992), cert. denied, 506 U.S. 1013 (1992). If this burden is met, the non-movant must set forth specific facts which would be admissible as evidence from which a rational fact finder could find in the non-movant's favor. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). The non-movant must show more than some "metaphysical doubt" based on "evidence" and not "speculation, conjecture or surmise." Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Bones v. Honeywell Intern., 366 F.3d 869, 875 (10th Cir. 2004). The essential inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether the evidence is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986).
The Court draws all justifiable inferences about disputed facts in Plaintiff's favor, but those "inferences must accord deference to the views of prison authorities" with respect to matters of professional judgment. Beard v. Banks, 548 U.S. 521, 529-30 (2006).
Plaintiff was convicted after a jury trial in Kansas of three counts of first degree murder, one count of aggravated kidnapping, four counts of robbery, two counts of aggravated burglary, and one count of misdemeanor theft. The Kansas Supreme Court affirmed his convictions for all offenses, and affirmed his four consecutive life sentences for first-degree murder and aggravated kidnapping. State v. Grissom, 251 Kan. 851 (1992). At all times relevant to this complaint, Plaintiff was an inmate in the custody of the Kansas Secretary of Corrections.
Plaintiff has been in administrative segregation continuously since 1996. His initial placement was "pending investigation," as he was being investigated for extorting an inmate and illicit activity. Plaintiff was placed in lockdown at LCF without a disciplinary report, write-up, or hearing.4
On October 28, 1996, Plaintiff's status was changed to "Other Security Risk" (OSR), without a hearing. In October and December, Plaintiff was told he would soon be returned to general population, but on December 31, 1996, Plaintiff was bussed to EDCF administrative segregation.
In March of 1997, Plaintiff sought an explanation of his continued segregation and learned that LCF's Intelligence and Investigation (I & I) Department had identified Plaintiff as a key participant in the procurement and trafficking of contraband drugs into LCF. Due to the "elaborate methods"used to traffic those drugs, Defendants believed Plaintiff, if released to general population, would be a threat to EDCF's security. Plaintiff believed that his continued segregation instead reflected the Central Office's reaction to public pressure due to the notoriety of his crimes. Plaintiff thereafter sought but did not receive an explanation from EDCF's I&I. But Plaintiff received his 120-day review from the Program Management Committee, dated in December of 1997, which stated two justifications for his continued detention in administrative segregation: 1) LCF I&I's determination that Plaintiff had been identified as a "key participant" in the trafficking of narcotics into LCF; and 2) "while on Parole, [Plaintiff] kidnapped and murdered three people." Dk. 64, Exh. 4.
On February 15, 2001, Plaintiff's Administrative Segregation status of OSR was changed to Extreme Escape Risk, without any disciplinary report or hearing. EDCF's I&I had intercepted a letter addressed to Plaintiff, stating the writer's desire to get Plaintiff out of prison once Plaintiff was released to general population. Because of the letter,5 EDCF believed that Plaintiff posed a potential for escape and a serious risk to the facility. Plaintiff's Administrative Segregation status was returned to OSR status on June 6, 2003.
From the summer of 1996 to November 24, 2003, Plaintiff was on the highest level attainable, level 3. He received no disciplinary reports duringover seven years of administrative segregation, and has accumulated few disciplinary "write ups" during his incarceration.
But on Tuesday, November 25, 2003, officers searched Plaintiff's cell at EDCF and found several contraband items, including a cellular phone with extra batteries and accessories. Plaintiff was charged with violating K.S.A. 21-3826 (now K.S.A. 2011 Supp. 21-5914), Traffic in Contraband in a Correctional Institution, a felony (Case No. 03-11-159). Plaintiff pled no contest and was placed in disciplinary segregation for 30 days. Dk. 55, Exh. 30.
On January 26, 2005, during a strip search at EDCF, officers found a cellular phone on the floor near Plaintiff. Plaintiff was charged with violating K.A.R. 44-12-901, Dangerous Contraband-Class I (Case No. 05-01-171). Plaintiff again pled no contest and was placed in disciplinary segregation for 30 days. Dk. 55, Exh. 31.
On June 1, 2005, at LCF, officers searched Plaintiff and found a cellular phone on him. A search of his cell revealed additional contraband including another cellular telephone, chargers for the telephones, sandpaper, razors, a soldering iron, screwdriver and drill bits. Plaintiff was again charged with violating K.A.R. 44-12-901, Dangerous Contraband-Class I. Plaintiff pleaded not guilty, and participated in a disciplinary hearing conducted by telephone on June 21, 2005. Plaintiff was found guilty and was given 45 days in disciplinary segregation. Dk. 55, Exh. 68. Plaintiff considers cell phones to be"easily obtainable and virtually ubiquitous in the prison system." Dk. 64, p. 7.
Because of the seriousness of Plaintiff's three violations concerning contraband, officers determined that a "more detailed management plan" for Plaintiff was needed. The special management reflected in the protocol "was made necessary after it became clear that [Plaintiff] was involved with the buying and selling of contraband at the Lansing Correctional Facility and that he was adroit at developing relationships with correctional staff." Dk. 55, Exh. 2, p. 2 (Werholtz affidavit).
Defendant Bruce initially developed the protocol and first applied it when Plaintiff transferred to HCF on June 8, 2005. It provided for the following: two cameras focused on Plaintiff's cell 24 hours a day; contact with Plaintiff by stated persons only; screening of Plaintiff's outside contacts such as phone calls; limitations on Plaintiff's time in the yard and in showers; frequent checks of Plaintiff's cell and the area behind it; inspections of all items given to the Plaintiff; documentation of anyone having contact with Plaintiff other than the routine rounds; and requirements regarding the position of Plaintiff's outside door and shower door (to enhance visibility). Dk. 55, Exh. 4.
Plaintiff was also transferred to other institutions to prevent the formation of any relationships that may assist him to acquire dangerous contraband. Plaintiff was moved approximately every four months amongthe El Dorado Correctional Facility (EDCF), Hutchinson Correctional Facility (HCF), and Lansing Correctional Facility (LCF). Defendants McKune and Muckenthaler at LCF and Defendant Roberts at EDCF adopted and implemented a protocol concerning Plaintiff similar to the protocol at HCF.
Plaintiff considered administrative segregation at HCF to be severe and prolonged, unsanitary and dangerous. His cell was shaken down at least five times per week, as often as three times per day, resulting in its disarray. Temperatures in the "slam cell" were so extreme that Plaintiff suffered heat stroke one day. Inmates are not regularly subjected to more than two weeks in "MRA" cells, but Plaintiff was confined there for four months at a time. Reading material in the MRA cells was limited to old encyclopedia volumes, and no magazine subscriptions were permitted.
On February 7, 2006, Plaintiff was transferred to administrative segregation at LCF, without his personal property. Plaintiff was housed in an More Restricted Area (MRA) cell, normally used for mentally disturbed or the most disruptive inmates. His cell was shaken down a minimum of eight times a week, and a camera was trained on the interior of his cell to monitor his every move, twenty-four hours a day. Plaintiff alleges that the filth and noise caused him extreme mental and physical stress. When Plaintiff asked Defendant Muckenthaler who authorized these measures, he was told that "...It came down from Central Office in Topeka." Plaintiff requestedhandicrafts appropriate to his level-two status, Affidavit, ex. 7 [IMPP 11-101]), but was denied even "papercraft, painting and sketching."
On June 20, 2006, Plaintiff was transferred to HCF and another MRA cell. He requested magazines and handicrafts commensurate with his current security level and KDOC's...
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