Melvin v. U.S.

• Decision Date: 23 April 1997
• Docket Number: No. 96-3113-JTM.,96-3113-JTM.
• Citation: 963 F.Supp. 1052
• Parties: Warner MELVIN, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Kansas

963 F.Supp. 1052

Warner MELVIN, Plaintiff, v. UNITED STATES of America, Defendant.

No. 96-3113-JTM.

United States District Court, D. Kansas.

April 23, 1997.

COPYRIGHT MATERIAL OMITTED

Warren Melvin, Florence, CO, pro se.

Christina L. Medeiros, Assistant U.S. Attorney, Kansas City, for Defendant.

MEMORANDUM AND ORDER

MARTEN, District Judge.

Warner Melvin, a pro se prisoner, seeks damages for the loss of personal property pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. Melvin alleges a guard at the prison negligently unlocked his prison cell, allowing other prisoners to enter and take his belongings. The United States moved for summary judgment, arguing that Kansas does not impose a duty to safeguard a prisoner's property. The United States also argues that Melvin's response was untimely and the motion should be granted as an unopposed motion.

I. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to show that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986).

Once the initial showing has been made, the burden shifts to the nonmoving party to designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. A party may not rely on the allegations of its pleadings but must establish the existence of a genuine issue of material fact through admissible evidence. Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1045, 134 L.Ed.2d 192 (1996).

When determining whether there is a material issue of fact, the nonmoving party's evidence is to be believed; all justifiable inferences are to be drawn in its favor; and its nonconclusory version of any disputed issue of fact is assumed to be correct. Multistate Legal Studies, Inc. v. Harcourt Brace Publ., Inc., 63 F.3d 1540, 1545 (10th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 702, 133 L.Ed.2d 659 (1996).

II. FACTS

The following factual scenario is based on the allegations of the parties where supported by appropriate citations to the record and with all reasonable inferences drawn in Melvin's favor.

On August 7, 1995, Melvin was incarcerated at the United States Penitentiary (USP) in Leavenworth, Kansas. Melvin worked at UNICOR from 3:30 p.m. until 11:30 p.m. Melvin was informed that he was being moved from "A" Cellhouse — Cell 463, to "C" Cellhouse — Cell 527.

Melvin moved most of his property during the day before the time to report for his work shift. Melvin hid the rest of his property between his bed and the wall. As he was leaving Cell A-463, Melvin asked Officer Herbert Richard to deadlock the cell and checked to see that it was locked. Melvin did not tell Richard there was property in the cell.

Richard walked through the unit at approximately 3:15 p.m. and saw no property or bedding in the cell. The cell's locker was open and empty. Richard assumed Melvin had moved out of the cell, and did not check the bed lodge book. Richard testified he was required to open all the cell doors at 4:00 p.m. to allow inmates returning from work to enter their cells. Richard apparently unlocked the cell at this time. Melvin disputes the requirement that all cell doors must be opened at 4:00, arguing that only the cell doors of inmates who get off at 3:30 needed to be opened. Neither party provides citations to the appropriate rules and regulations.

Melvin's supervisor at UNICOR released him from his work detail so he could finish moving his property. When Melvin returned to Cell A-463, the cell was unlocked and his property was missing.

Later that evening, in the presence of Officer Lowell Streeter, Melvin asked Richard what had happened. There are two versions of Richard's response. According to plaintiff Melvin, Richard said he thought Melvin had moved and he opened the cell door and allowed other prisoners to take Melvin's property. Richard suggested Melvin file a property claim, indicating he would admit he opened the cell door and allowed other prisoners to remove the property from the cell.

According to Richard, Melvin asked him who had opened his cell, and Richard admitted he had opened it, explaining he thought Melvin had moved out because he did not see any property in the cell. Melvin told Richard he had hidden his property between the bed and the wall. Richard advised Melvin to make a claim. As he did not know Melvin had any property in the cell, Richard contends he would not have told Melvin he had let other prisoners take his property. At some point in time, however, Richard must have become aware that Melvin had property in the cell. Richard's affidavit is unclear as to when he unlocked the cell and when he became aware of Melvin's property.

Streeter testified he did not hear Richard tell Melvin that he had let other prisoners remove Melvin's property from the cell.

Melvin filed an administrative tort claim that evening, valuing the missing property at $226.30. The missing property consisted of electronic equipment, Adidas shoes and food. The claim form Melvin filled out is consistent with his version of the conversation. The form provides civil and criminal penalties for making false statements.

Lieutenant Randall Torix investigated the claim and interviewed Melvin. Torix testified Melvin told him Richard did not know his property was hidden between the bed and the wall and he did not believe Richard had intentionally unlocked the cell. Melvin did not tell Torix that Richard had said he let other prisoners take Melvin's property.

The government argues Melvin's self-serving version must be disregarded because it is inconsistent with his statements to Torix and with Streeter's testimony. Nevertheless, for summary judgment purposes Melvin's version must be believed. Torix was questioning Melvin based on his administrative claim, which contained Melvin's version of the facts. Melvin's failure to mention Richard's alleged statement in the interview is not as significant as the government claims, where Melvin had provided Torix with his claim containing the statement. However, Melvin does not dispute he told Torix that Richard's acts were not intentional and he does not allege intentional conduct in his complaint.

III. PROCEDURAL HISTORY

Melvin's administrative complaint was denied on October 18, 1995, and he timely brought suit challenging the denial. Melvin named the U.S. Bureau of Prisons, and Officers Richard and Streeter as defendants. Judge Van Bebber directed the United States be substituted as the sole defendant and dismissed the named defendants from the action pursuant to 28 U.S.C. § 2672. He found Melvin had exhausted his administrative remedies and ordered a responsive pleading from the United States.

Melvin was transferred to a federal correctional facility in Colorado. After obtaining an extension of time, the United States filed a motion for summary judgment on June 17, 1996. Melvin did not respond, and on July 29, 1996 the United States requested an order to show cause why the action should not be dismissed or the summary judgment motion granted as an unopposed motion. Melvin responded to both motions on August 12, 1996. The government did not file a reply brief. Judge Van Bebber subsequently transferred the case to this court.

IV. TIMELINESS OF PLAINTIFF'S RESPONSE

The United States argues Melvin's response was untimely and under D. Kan. Rule 7.4 his complaint should be dismissed or the motion for summary judgment granted as an unopposed motion.

Melvin argues excusable neglect, claiming that when he received the motion for summary judgment he did not have access to the local rules for the District of Kansas. He also argues summary judgment may not be granted if the moving party has not made the required initial showing even in the absence of a response, citing Kaufman v. Cserny, 856 F.Supp. 1307 (S.D.Ill.1994). This is consistent with Tenth Circuit case law. See Luckett v. Bethlehem Steel Corp., 618 F.2d 1373, 1383 (10th Cir.1980) (if movant's documents do not establish the absence of a genuine issue of fact, summary judgment must be denied, even if no opposing evidentiary matter is presented) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970)).

Here, Melvin provides citations to admissible evidence in his initial pro se complaint. His response contains only additional argument which the court would be required to interpret liberally. While the deadline for filing responses is not contained in D. Kan. R. 7.4, Melvin's assumption is a reasonable one given the wording of the government's brief and Melvin's lay status. Melvin responded to the motion for a show cause order. The Tenth Circuit has found dismissal of a pro se litigant's complaint under a similar local rule and circumstances was an abuse of discretion. Meade v. Grubbs, 841 F.2d 1512, 1519-22 (10th Cir.1988) (W.D. Okla. Rule 14(a) (1982)). Failure of a pro se litigant to timely respond to the defendant's motions must amount to a "clear record of delay and contumacious conduct" before dismissal is justified. Meade 841 F.2d at 1522. Melvin's response will be considered and the motion for summary judgment will not be granted as an unopposed motion.

V. ANALYSIS OF PLAINTIFF'S CLAIM

The United States correctly admits it will be liable for the loss of Melvin's property under the FTCA if the loss resulted from the negligent or wrongful acts or omissions of prison officials acting within the scope of their employment, and liability would be imposed on a private person in similar...