Scriven v. Corby, Case No. 5:20-CV-03110-JAR-KGG

• Court: United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
• Parties: MICHAEL SCRIVEN, Plaintiff, v. DEPUTY CORBY, et al. Defendants.
• Docket Number: Case No. 5:20-CV-03110-JAR-KGG
• Decision Date: 02 June 2021

MICHAEL SCRIVEN, Plaintiff,
v.
DEPUTY CORBY, et al. Defendants.

Case No. 5:20-CV-03110-JAR-KGG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

June 2, 2021

MEMORANDUM AND ORDER

Plaintiff Michael Scriven, a detainee at the Sedgwick County Adult Detention Facility ("SCADF"), brings this action against county employees Harold Stopp, D.O., Nurse Ryan, Deputy Corby, Deputy McGonnigil, Sergeant Tucker, Sergeant Hayes, and Deputy Simonis in their official and individual capacities, alleging that Defendants violated his civil rights through the excessive use of force, failure to protect him from harm, and deliberate indifference to his serious medical needs. This matter is now before the Court on six motions: (1) Defendant Harold Stopp, D.O.'s Motion to Dismiss (Doc. 30); (2) Defendant Nurse Ryan's Motion to Dismiss Plaintiff's Amended Complaint (Doc. 36); (3) Plaintiff's Motion to Dismiss (Doc. 39), filed in support of Defendant Ryan's motion to dismiss; (4) Motion to Dismiss (Doc. 40) by Defendants Corby, McGonnigil, Tucker, Hayes, and Simonis; (5) Motion to Strike Plaintiff's Surreply (Doc. 59) filed by Defendants Corby, McGonnigil, Tucker, Hayes, and Simonis; and (6) Plaintiff's Motion to Exclude Evidence (Doc. 51). The motions are fully briefed, and the Court is prepared to rule.

For the reasons set forth in detail below, Plaintiff's motion to dismiss Defendant Ryan from this action is granted, and Defendant Ryan's motion to dismiss is denied as moot. Defendants' motion to strike plaintiff's surreply is denied, and Plaintiff's motion to exclude

Page 2

evidence is denied. The motion to dismiss filed by Defendants Corby, McGonnigil, Tucker, Hayes, and Simonis is denied, but Count IV of Plaintiff's Amended Complained is dismissed as duplicative of Count II. Finally, Defendant Stopp's motion to dismiss is granted.

I. Legal Standard

Defendants move to dismiss based on Plaintiff's failure to exhaust his administrative remedies, Plaintiff's failure to state a claim, and/or the defense of qualified immunity from suit. All Defendants seek dismissal on the basis that Plaintiff failed to exhaust his administrative remedies before bringing suit as required by the Prison Litigation Reform Act ("PLRA"). Defendants Corby, McGonnigil, Tucker, Hayes, and Simonis contend that dismissal for failure to exhaust deprives this Court of subject matter jurisdiction and that dismissal is therefore proper under Fed. R. Civ. P. 12(b)(1). Defendant Stopp does not specify the rule on which he relies with respect to his exhaustion arguments, whereas Defendant Ryan moves under Rule Fed. R. Civ. P. 12(b)(6).

"In the Tenth Circuit, . . . plaintiff's failure to exhaust is not jurisdictional and a motion based upon failure to exhaust is properly brought under Rule 12(b)(6) for failure to state a claim—not under 12(b)(1) for lack of subject matter jurisdiction."¹ Thus, Defendants' motions to dismiss for failure to exhaust must be considered under Rule 12(b)(6), as must their remaining arguments based on failure to state a claim and the defense of qualified immunity.

To survive a motion to dismiss brought under Rule 12(b)(6), "the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual

Page 3

support for these claims."² The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires more than "a sheer possibility."³ "[M]ere 'labels and conclusions,' and 'a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim."⁴ Finally, the Court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.⁵

The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court "must take all of the factual allegations in the complaint as true, [but] we 'are not bound to accept as true a legal conclusion couched as a factual allegation.'"⁶ Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.⁷ Second, the court must determine whether the factual allegations, when assumed true, "plausibly give rise to an entitlement to relief."⁸ "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."⁹

Page 4

If matters outside the complaint are considered, the Court generally must convert a Rule 12(b)(6) motion to a Rule 56 motion for summary judgment.¹⁰

Finally, because Plaintiff proceeds pro se, some additional considerations frame the Court's analysis. The Court must construe Plaintiff's pleadings liberally and apply a less stringent standard than that which applies to attorneys.¹¹ "Nevertheless, [Plaintiff] bears 'the burden of alleging sufficient facts on which a recognized legal claim could be based.'"¹² The Court may not provide "additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf."¹³ Additionally, a pro se litigant is not excused from complying with the rules of the court and is subject to the consequences of noncompliance.¹⁴

II. Procedural and Factual Background

Plaintiff's original Complaint, filed on April 13, 2020, alleged claims against the Sedgwick County Board of Commissioners, the Sedgwick County Jail, Deputy Corby, Deputy McGonnigil, Deputy Simonis, Sergeant Tucker, Sergeant Hayes, and Wellpath.¹⁵ On screening pursuant to 28 U.S.C. §1915A—which requires the court to review a prisoner's case against a governmental entity or employee for frivolousness, maliciousness, or failure to state a claim¹⁶—United States Senior District Judge Sam A. Crow found that Plaintiff's claims against the

Page 5

Sedgwick County Board of Commissioners, the Sedgwick County Jail, Deputy Corby, and Wellpath were subject to dismissal for failure to state a claim.¹⁷ Judge Crow directed Plaintiff to show cause why those defendants should not be dismissed or, in the alternative, to file an amended complaint correcting the pleading deficiencies noted in Judge Crow's Order.¹⁸ Plaintiff filed an Amended Complaint on November 5, 2020, dropping his claims against the Sedgwick County Board of Commissioners, the Sedgwick County Jail, and Wellpath, but restating his claims against Defendant Corby and adding claims against Defendants Stopp and Ryan.¹⁹ Plaintiff's Amended Complaint is now the operative complaint in this case, and the following facts are drawn from that pleading and assumed true for the purposes of this ruling.²⁰

Plaintiff is, and was at the time of the events in question, detained at the SCADF in Wichita, Kansas. He has a number of physical disabilities that have required medical implants, including a prosthetic right hip and right femur; a prosthetic pelvis with over twenty screws in each acetabulum; screws in the left sacroiliac joint; and pins and plates in the right ribs. Plaintiff also has a traumatic brain injury. Defendant Stopp was employed as a doctor at the SCADF, and Defendant Ryan as a nurse. Defendants Deputy Corby, Deputy McGonnigil, Sergeant Tucker, Sergeant Hayes, and Deputy Simonis were all employed at the SCADF in the roles indicated by their titles.

As a result of his disabilities, Plaintiff was placed in an "ADA cell" in Pod 18 sometime in April 2019. On the morning of April 20, 2019, Deputy Corby was in charge of Pod 18. She and Plaintiff had a disagreement about where Plaintiff should get undressed prior to showering.

Page 6

As Plaintiff tried to explain his position, Corby made fun of him about his disabilities and harassed him over the cell intercom. Corby then put Plaintiff in a 24-hour lockdown in his cell. Plaintiff requested a sergeant, and Sergeant Tucker joined Corby on the intercom. Corby and Tucker continued to harass Plaintiff over the intercom and extended his lockdown.

Corby then let Sergeant Tucker into Pod 18. Tucker went to Plaintiff's cell window and, within Corby's view, laughed at and provoked Plaintiff further. At some point, Corby also let Deputy McGonnigil into the pod, and McGonnigil joined Tucker at Plaintiff's cell. Tucker told Plaintiff that he was going to send McGonnigil in, which made Plaintiff feel threatened. Tucker put his key in the cell door and asked Plaintiff if he was ready. To avoid what he feared would happen if McGonnigil came into his cell, Plaintiff asked to be taken to the SCADF's medical clinic to have his right hip examined.

Tucker opened Plaintiff's cell and told Plaintiff to "cuff up." Although Plaintiff was compliant as McGonnigil placed him in handcuffs, the handcuffs were too tight and caused Plaintiff severe pain. Before Plaintiff could tell McGonnigil that he was in pain, McGonnigil began cutting into Plaintiff's hands and wrists with his fingernails and placed Plaintiff's wrists in a "gooseneck" hold. Plaintiff's wounds from this hold bled for two weeks afterward.

As McGonnigil removed him from Pod 18, Plaintiff's screams for help were ignored—including by Corby, who was watching. Plaintiff was taken to a fourteen-step staircase known as the "sweet spot" among SCADF staff because it is out of view. By this time, Deputy Simonis was also present in addition to McGonnigil and Tucker; McGonnigil was on Plaintiff's right and Simonis on Plaintiff's left as they descended the stairs. After Plaintiff was led down two to three steps, McGonnigil kicked his left knee out, causing him to fall and hit the stairs. The deputies picked Plaintiff up but, after a few more steps, McGonnigil kicked his left knee out again,

Page 7

causing him to fall a second time. Tucker, who was present to supervise, continued giving verbal instructions to McGonnigil...